Genuino v. de Lima

2/2/2021 SUPREME COURT REPORTS ANNOTATED 861

G.R. No. 197930. April 17, 2018.*

EFRAIM C. GENUINO, ERWIN F. GENUINO and
SHERYL G. SEE, petitioners, vs. HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice, and
RICARDO V. PARAS III, in his capacity as Chief State
Counsel, CRISTINO L. NAGUIAT, JR. and the BUREAU
OF IMMIGRATION, respondents.

G.R. No. 199034. April 17, 2018.*

MA. GLORIA MACAPAGAL-ARROYO,
petitioner, vs. HON. LEILA M. DE LIMA, as Secretary of
the Department of Justice and RICARDO A. DAVID, JR.,
as Commissioner of the Bureau of Immigration,
respondents.
_______________
* EN BANC.

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Genuino vs. De Lima
G.R. No. 199046. April 17, 2018.*

JOSE MIGUEL T. ARROYO, petitioner, vs. HON. LEILA
M. DE LIMA, as Secretary of the Department of Justice
and RICARDO V. PARAS III, as Chief State Counsel,
Department of Justice and RICARDO A. DAVID, JR., in
his capacity as Commissioner, Bureau of Immigration,
respondents.
www.central.com.ph/sfsreader/session/00000177628fdcb73b00bc2f003600fb002c009e/t/?o=False 1/128
Judicial Review; Limitations on the Power of Judicial Review.

—Like almost all powers conferred by the Constitution, the power
of judicial review is subject to limitations, to wit: (1) there must be
an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing
to question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
Same; Actual Case or Controversy; An actual case or
controversy involves a conflict of legal right, an opposite legal
claims susceptible of judicial resolution.—To be clear, “an actual
case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is definite and
concrete, touching the legal relations of parties having adverse
legal interest; a real and substantial controversy admitting of
specific relief.” When the issues have been resolved or when the
circumstances from which the legal controversy arose no longer
exist, the case is rendered moot and academic. “A moot and
academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value.” The Court believes
that the supervening events following the filing of the instant
petitions, while may have seemed to moot the instant petitions,
will not preclude it from ruling on the constitutional issues raised
by the petitioners. The Court, after assessing the necessity and
the invaluable gain that the members of the bar, as well as the
public may realize from the academic discussion of the
constitutional issues raised in the petition, resolves to put to rest
the lingering constitutional questions that abound the assailed
issuance. This is not a

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novel occurrence as the Court, in a number of occasions, took

up cases up to its conclusion notwithstanding claim of mootness.
Constitutional Law; Bill of Rights; The more precious gifts of

democracy that the Constitution affords us are enumerated in the
Bill of Rights contained in Article III.—We begin by emphasizing
that the Constitution is the fundamental, paramount and
supreme law of the nation; it is deemed written in every statute
and contract. If a law or an administrative rule violates any norm
of the Constitution, that issuance is null and void and has no
effect. The Constitution is a testament to the living democracy in
this jurisdiction. It contains the compendium of the guaranteed
rights of individuals, as well as the powers granted to and
restrictions imposed on government officials and
instrumentalities. It is that lone unifying code, an inviolable
authority that demands utmost respect and obedience. The more
precious gifts of democracy that the Constitution affords us are
enumerated in the Bill of Rights contained in Article III. In
particular, Section 1 thereof provides: Section 1. No person shall
be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
The guaranty of liberty does not, however, imply unbridled license
for an individual to do whatever he pleases, for each is given an
equal right to enjoy his liberties, with no one superior over
another. Hence, the enjoyment of one’s liberties must not infringe
on anyone else’s equal entitlement.
Same; Right to Liberty; Even liberty itself, the greatest of all
rights, is not unrestricted license to act according to one’s will.—
Surely, the Bill of Rights operates as a protective cloak under
which the individual may assert his liberties. Nonetheless, “the
Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties. Even liberty itself, the greatest of
all rights, is not unrestricted license to act according to one’s will.
It is subject to the far more overriding demands and requirements
of the greater number.”
Political Law; Police Power; The state’s exercise of police
power is also well-recognized in this jurisdiction as an acceptable
limitation to the exercise of individual rights.—The state’s
exercise of police power is also well-recognized in this jurisdiction
as an acceptable limitation to the exercise of individual rights. In
Philippine Associa-

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tion of Service Exporters, Inc. v. Drilon, 163 SCRA 386 (1988),

it was defined as the inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort,
safety, and welfare of society. It is rooted in the conception that
men in organizing the state and imposing upon its government
limitations to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary measures
calculated to ensure communal peace, safety, good order, and
welfare.
Constitutional Law; Right to Liberty; Right to Travel; The
right to travel is part of the “liberty” of which a citizen cannot be
deprived without due process of law.—The right to travel is part of
the “liberty” of which a citizen cannot be deprived without due
process of law. It is part and parcel of the guarantee of freedom of
movement that the Constitution affords its citizen. Pertinently,
Section 6, Article III of the Constitution provides: Section 6. The
liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety or public health, as
maybe provided by law.
Same; Same; Same; Section 6 itself provides that the right to
travel may be impaired only in the interest of national security,
public safety or public health, as may be provided by law.—
Liberty under the foregoing clause includes the right to choose
one’s residence, to leave it whenever he pleases and to travel
wherever he wills. Thus, in Zacarias Villavicencio v. Justo
Lucban, 39 Phil. 778 (1919), the Court held illegal the action of
the Mayor of Manila in expelling women who were known
prostitutes and sending them to Davao in order to eradicate vices
and immoral activities proliferated by the said subjects. It was
held that regardless of the mayor’s laudable intentions, no person
may compel another to change his residence without being
expressly authorized by law or regulation. It is apparent,
however, that the right to travel is not absolute. There are
constitutional, statutory and inherent limitations regulating the
right to travel. Section 6 itself provides that the right to travel
may be impaired only in the interest of national security, public
safety or public health, as may be provided by law.

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Same; Same; Same; There are only three (3) considerations

that may permit a restriction on the right to travel: national
security, public safety or public health.—There are only three
considerations that may permit a restriction on the right to travel:
national security, public safety or public health. As a further
requirement, there must be an explicit provision of statutory law
or the Rules of Court providing for the impairment. The
requirement for a legislative enactment was purposely added to
prevent inordinate restraints on the person’s right to travel by
administrative officials who may be tempted to wield authority
under the guise of national security, public safety or public
health. This is in keeping with the principle that ours is a
government of laws and not of men and also with the canon that
provisions of law limiting the enjoyment of liberty should be
construed against the government and in favor of the individual.
Same; Same; Same; Liberty of Abode; The liberty of abode
may only be impaired by a lawful order of the court and, on the
one hand, the right to travel may only be impaired by a law that
concerns national security, public safety or public health.—The
liberty of abode may only be impaired by a lawful order of the
court and, on the one hand, the right to travel may only be
impaired by a law that concerns national security, public safety or
public health. Therefore, when the exigencies of times call for a
limitation on the right to travel, the Congress must respond to the
need by explicitly providing for the restriction in a law. This is in
deference to the primacy of the right to travel, being a
constitutionally protected right and not simply a statutory right,
that it can only be curtailed by a legislative enactment.
Same; Same; Same; Same; In any case, when there is a
dilemma between an individual claiming the exercise of a
constitutional right vis-à-vis the state’s assertion of authority to
restrict the same, any doubt must, at all times, be resolved in favor
of the free exercise of the right, absent any explicit provision of law
to the contrary.—In any case, when there is a dilemma between
an individual claiming the exercise of a constitutional right vis-à-
vis the state’s assertion of authority to restrict the same, any
doubt must, at all times, be resolved in favor of the free exercise of
the right, absent any explicit provision of law to the contrary.

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Same; Same; Same; There is no law particularly providing for

the authority of the secretary of justice to curtail the exercise of the
right travel, in the interest of national security, public safety or
public health.—The Court is in quandary of identifying the
authority from which the DOJ believed its power to restrain the
right to travel emanates. To begin with, there is no law
particularly providing for the authority of the secretary of justice
to curtail the exercise of the right to travel, in the interest of
national security, public safety or public health. As it is, the only
ground of the former DOJ Secretary in restraining the petitioners,
at that time, was the pendency of the preliminary investigation of
the Joint DOJ-COMELEC Preliminary Investigation Committee
on the complaint for electoral sabotage against them. To be clear,
DOJ Circular No. 41 is not a law. It is not a legislative enactment
which underwent the scrutiny and concurrence of lawmakers, and
submitted to the President for approval. It is a mere
administrative issuance apparently designed to carry out the
provisions of an enabling law which the former DOJ Secretary
believed to be Executive Order (E.O.) No. 292, otherwise known as
the “Administrative Code of 1987.” She opined that DOJ Circular
No. 41 was validly issued pursuant to the agency’s rulemaking
powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1
of E.O. No. 292 and Section 50, Chapter 11, Book IV of the
mentioned Code.
Administrative Agencies; Rulemaking Power; Administrative
agencies possess quasi-legislative or rulemaking powers, among
others.—Indeed, administrative agencies possess quasi-legislative
or rulemaking powers, among others. It is the “power to make
rules and regulations which results in delegated legislation that is
within the confines of the granting statute and the doctrine of
non-delegability and separability of powers.” In the exercise of
this power, the rules and regulations that administrative agencies
promulgate should be within the scope of the statutory authority
granted by the legislature to the administrative agency. It is
required that the regulation be germane to the objects and
purposes of the law, and be not in contradiction to, but in
conformity with, the standards prescribed by law. They must
conform to and be consistent with the provisions of the enabling
statute in order for such rule or regulation to be valid. It is,
however, important to stress that before there can even be a valid
administrative issuance, there must first be a showing that the
delegation of legislative power is itself valid. It is valid only if

there is a law that (a) is complete in itself, setting forth

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therein the policy to be executed, carried out, or implemented

by the delegate; and (b) fixes a standard — the limits of which are
sufficiently determinate and determinable to which the delegate
must conform in the performance of his functions.
Same; Declaration of Policy; A declaration of policy contained
in a statute is, like a preamble, not a part of the substantive
portions of the act.—The declaration of policy is most useful in
statutory construction as an aid in the interpretation of the
meaning of the substantive provisions of the law. It is preliminary
to the substantive portions of the law and certainly not the part in
which the more significant and particular mandates are
contained. The suggestion of the former DOJ Secretary that the
basis of the issuance of DOJ Circular No. 41 is contained in the
declaration of policy of E.O. No. 292 not only defeats logic but also
the basic style of drafting a decent piece of legislation because it
supposes that the authors of the law included the operative and
substantive provisions in the declaration of policy when its
objective is merely to introduce and highlight the purpose of the
law. Succinctly, “a declaration of policy contained in a statute is,
like a preamble, not a part of the substantive portions of the act.
Such provisions are available for clarification of ambiguous
substantive portions of the act, but may not be used to create
ambiguity in other substantive provisions.” In the same way,
Section 3 does not authorize the DOJ to issue WLOs and HDOs to
restrict the constitutional right to travel. There is even no
mention of the exigencies stated in the Constitution that will
justify the impairment. The provision simply grants the DOJ the
power to investigate the commission of crimes and prosecute
offenders, which are basically the functions of the agency.
However, it does not carry with it the power to indiscriminately
devise all means it deems proper in performing its functions
without regard to constitutionally protected rights. The
curtailment of a fundamental right, which is what DOJ Circular
No. 41 does, cannot be read into the mentioned provision of the
law. Any impairment or restriction in the exercise of a

constitutional right must be clear, categorical and unambiguous.
Administrative Orders; Without a clear mandate of an
existing law, an administrative issuance is ultra vires.—The
questioned circular does not come under the inherent power of the
executive department to adopt rules and regulations as clearly the
issuance of HDO and WLO is not the DOJ’s business. As such, it
is a compulsory

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requirement that there be an existing law, complete and

sufficient in itself, conferring the expressed authority to the
concerned agency to promulgate rules. On its own, the DOJ
cannot make rules, its authority being confined to execution of
laws. This is the import of the terms “when expressly provided by
law” or “as may be provided by law” stated in Sections 7(4) and
7(9), Chapter 2, Title III, Book IV of E.O. 292. The DOJ is
confined to filling in the gaps and the necessary details in
carrying into effect the law as enacted. Without a clear mandate
of an existing law, an administrative issuance is ultra vires.
Consistent with the foregoing, there must be an enabling law
from which DOJ Circular No. 41 must derive its life.
Unfortunately, all of the supposed statutory authorities relied
upon by the DOJ did not pass the completeness test and sufficient
standard test. The DOJ miserably failed to establish the existence
of the enabling law that will justify the issuance of the questioned
circular.
Same; The Department of Justice (DOJ) must have the best
intentions in promulgating DOJ Circular No. 41, but the end will
not justify the means.—That DOJ Circular No. 41 was intended to
aid the department in realizing its mandate only begs the
question. The purpose, no matter how commendable, will not
obliterate the lack of authority of the DOJ to issue the said
issuance. Surely, the DOJ must have the best intentions in
promulgating DOJ Circular No. 41, but the end will not justify the
means. To sacrifice individual liberties because of a perceived
good is disastrous to democracy. In Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform, 175 SCRA 343 (1989), the Court emphasized: One of the
basic principles of the democratic system is that where the rights
of the individual are concerned, the end does not justify the
means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping
with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need, subject
only to a few notable exceptions, will excuse the bypassing of an
individual’s rights. It is no exaggeration to say that a person
invoking a right guaranteed under Article III of the Constitution
is a majority of one even as against the rest of the nation who
would deny him that right.

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Constitutional Law; Hierarchy of Rights; The Department of

Justice (DOJ) must constantly be reminded that in the hierarchy
of rights, the Bill of Rights takes precedence over the right of the
State to prosecute, and when weighed against each other, the
scales of justice tilt towards the former.—Indeed, the DOJ has the
power to investigate the commission of crimes and prosecute
offenders. Its zealousness in pursuing its mandate is laudable but
more admirable when tempered by fairness and justice. It must
constantly be reminded that in the hierarchy of rights, the Bill of
Rights takes precedence over the right of the State to prosecute,
and when weighed against each other, the scales of justice tilt
towards the former. Thus, in Allado v. Diokno, 232 SCRA 192
(1994), the Court declared, viz.: The sovereign power has the
inherent right to protect itself and its people from vicious acts
which endanger the proper administration of justice; hence, the
State has every right to prosecute and punish violators of the law.
This is essential for its self-preservation, nay, its very existence.
But this does not confer a license for pointless assaults on its
citizens. The right of the State to prosecute is not a carte blanche
for government agents to defy and disregard the rights of its
citizens under the Constitution.
Remedial Law; Criminal Procedure; Preliminary
Investigation; In the conduct of a preliminary investigation, the
presence of the accused is not necessary for the prosecutor to
discharge his investigatory duties. If the accused chooses to waive

his presence or fails to submit countervailing evidence, that is his
own lookout.—It bears emphasizing that the conduct of a
preliminary investigation is an implement of due process which
essentially benefits the accused as it accords an opportunity for
the presentation of his side with regard to the accusation. The
accused may, however, opt to waive his presence in the
preliminary investigation. In any case, whether the accused
responds to a subpoena, the investigating prosecutor shall resolve
the complaint within 10 days after the filing of the same. The
point is that in the conduct of a preliminary investigation, the
presence of the accused is not necessary for the prosecutor to
own lookout. Ultimately, he shall be bound by the determination
of the prosecutor on the presence of probable cause and he cannot
claim denial of due process.

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Same; Same; Same; Right to Liberty; Right to Travel; The

Department of Justice (DOJ) cannot justify the restraint in the
liberty of movement imposed by DOJ Circular No. 41 on the
ground that it is necessary to ensure presence and attendance in
the preliminary investigation of the complaints. There is also no
authority of law granting it the power to compel the attendance of
the subjects of a preliminary investigation, pursuant to its
investigatory powers under Executive Order (EO) No. 292.—The
DOJ therefore cannot justify the restraint in the liberty of
movement imposed by DOJ Circular No. 41 on the ground that it
is necessary to ensure presence and attendance in the preliminary
investigation of the complaints. There is also no authority of law
granting it the power to compel the attendance of the subjects of a
preliminary investigation, pursuant to its investigatory powers
under E.O. No. 292. Its investigatory power is simply inquisitorial
and, unfortunately, not broad enough to embrace the imposition of
restraint on the liberty of movement. That there is a risk of flight
does not authorize the DOJ to take the situation upon itself and
draft an administrative issuance to keep the individual within the
Philippine jurisdiction so that he may not be able to evade
criminal prosecution and consequent liability. It is an arrogation

of power it does not have; it is a usurpation of function that
properly belongs to the legislature. Without a law to justify its
action, the issuance of DOJ Circular No. 41 is an unauthorized act
of the DOJ of empowering itself under the pretext of dire exigency
or urgent necessity. This action runs afoul the separation of
powers between the three branches of the government and cannot
be upheld. Even the Supreme Court, in the exercise of its power to
promulgate rules is limited in that the same shall not diminish,
increase, or modify substantive rights. This should have cautioned
the DOJ, which is only one of the many agencies of the executive
branch, to be more scrutinizing in its actions especially when they
affect substantive rights, like the right to travel.
Political Law; Police Power; It bears noting that police power
may only be validly exercised if (a) the interests of the public
generally, as distinguished from those of a particular class, require
the interference of the State, and (b) the means employed are
reasonably necessary to the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals.—The
DOJ’s reliance on the police power of the state cannot also be
countenanced. Police power pertains to the “state authority to
enact legislation that may

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interfere with personal liberty or property in order to promote

the general welfare.” “It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things
hurtful to the comfort, safety, and welfare of society.” Verily, the
exercise of this power is primarily lodged with the legislature but
may be wielded by the President and administrative boards, as
well as the lawmaking bodies on all municipal levels, including
the barangay, by virtue of a valid delegation of power. It bears
noting, however, that police power may only be validly exercised if
(a) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the State,
and (b) the means employed are reasonably necessary to the
attainment of the object sought to be accomplished and not
unduly oppressive upon individuals. On its own, the DOJ cannot
wield police power since the authority pertains to Congress. Even
if it claims to be exercising the same as the alter ego of the

President, it must first establish the presence of a definite
legislative enactment evidencing the delegation of power from its
principal. This, the DOJ failed to do. There is likewise no showing
that the curtailment of the right to travel imposed by DOJ
Circular No. 41 was reasonably necessary in order for it to
perform its investigatory duties.
Same; Same; In any case, the exercise of police power, to be
valid, must be reasonable and not repugnant to the Constitution.—
In any case, the exercise of police power, to be valid, must be
reasonable and not repugnant to the Constitution. It must never
be utilized to espouse actions that violate the Constitution. Any
act, however noble its intentions, is void if it violates the
Constitution. In the clear language of the Constitution, it is only
in the interest of national security, public safety and public health
that the right to travel may be impaired. None one of the
mentioned circumstances was invoked by the DOJ as its premise
for the promulgation of DOJ Circular No. 41.
Hold Departure Orders; Watch List Orders; Due Process; The
apparent vagueness of the circular as to the distinction between a
Hold Departure Order (HDO) and Watch List Order (WLO) is
violative of the due process clause.—Apart from lack of legal basis,
DOJ Circular No. 41 also suffers from other serious infirmities
that render it invalid. The apparent vagueness of the circular as
to the distinction between an HDO and WLO is violative of the
due process clause. An act that is vague “violates due process for
failure to accord

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persons, especially the parties targeted by it, fair notice of the

conduct to avoid and leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.” Here, the distinction is significant as it will
inform the respondents of the grounds, effects and the measures
they may take to contest the issuance against them. Verily, there
must be a standard by which an HDO or WLO may be issued,
particularly against those whose cases are still under preliminary
investigation, since at that stage there is yet no criminal
information against them which could have warranted the

restraint.
Same; The issuance of Hold Departure Orders (HDOs) shall
pertain only to criminal cases within the exclusive jurisdiction of
the Regional Trial Court (RTC), to the exclusion of criminal cases
falling within the jurisdiction of the Municipal Trial Court (MTC)
and all other cases.—The silence of the circular on the matters
which are being addressed by DOJ Circular No. 41 is not without
good reasons. Circular No. 39-97 was specifically issued to avoid
indiscriminate issuance of HDOs resulting to the inconvenience of
the parties affected as the same could amount to an infringement
on the right and liberty of an individual to travel. Contrary to the
understanding of the DOJ, the Court intentionally held that the
issuance of HDOs shall pertain only to criminal cases within the
exclusive jurisdiction of the RTC, to the exclusion of criminal
cases falling within the jurisdiction of the MTC and all other
cases. The intention was made clear with the use of the term
“only.” The reason lies in seeking equilibrium between the state’s
interest over the prosecution of the case considering the gravity of
the offense involved and the individual’s exercise of his right to
travel. Thus, the circular permits the intrusion on the right to
travel only when the criminal case filed against the individual is
within the exclusive jurisdiction of the RTC, or those that
pertains to more serious crimes or offenses that are punishable
with imprisonment of more than six years. The exclusion of
criminal cases within the jurisdiction of the MTC is justified by
the fact that they pertain to less serious offenses which is not
commensurate with the curtailment of a fundamental right. Much
less is the reason to impose restraint on the right to travel of
respondents of criminal cases still pending investigation since at
that stage no information has yet been filed in court against them.
It is for these reasons that Circular No. 39-97 mandated that
HDO may only be

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issued in criminal cases filed with the RTC and withheld the
same power from the MTC.
Same; The power to issue Hold Departure Order (HDO) is

inherent to the courts.—It bears reiterating that the power to
issue HDO is inherent to the courts. The courts may issue an
HDO against an accused in a criminal case so that he may be
dealt with in accordance with law. It does not require legislative
conferment or constitutional recognition; it coexists with the grant
of judicial power. In Defensor-Santiago v. Vasquez, 217 SCRA 633
(1993), the Court declared, thus: Courts possess certain inherent
powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them.
These inherent powers are such powers as are necessary for the
ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the court, as well as to the due
administration of justice; or are directly appropriate, convenient
and suitable to the execution of their granted powers; and include
the power to maintain the court’s jurisdiction and render it
effective in behalf of the litigants. The inherent powers of the
courts are essential in upholding its integrity and largely
beneficial in keeping the people’s faith in the institution by
ensuring that it has the power and the means to enforce its
jurisdiction.
Application for Leave; The filing of application for leave is
required for purposes of orderly personnel administration.—The
same ratiocination can be said of the regulations of the Civil
Service Commission with respect to the requirement for leave
application of employees in the government service seeking to
travel abroad. The Omnibus Rules Implementing Book V of E.O.
No. 292 states the leave privileges and availment guidelines for
all government employees, except those who are covered by
special laws. The filing of application for leave is required for
purposes of orderly personnel administration. In pursuing foreign
travel plans, a government employee must secure an approved
leave of absence from the head of his agency before leaving for
abroad. To be particular, E.O. No. 6 dated March 12, 1986, as
amended by Memorandum Order (MO) No. 26 dated July 31,
1986, provided the procedure in the disposition of requests of
government officials and employees for authority to travel abroad.
The provisions of this issuance were later clarified in the
Memorandum Circular No. 18 issued on October 27, 1992.

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Thereafter, on September 1, 2005, E.O. No. 459 was issued,

streamlining the procedure in the disposition of requests of
government officials and employees for authority to travel abroad.
Hold Departure Orders; Right to Travel; Department of
Justice; Jurisdiction; Contrary to its claim, the Department of
Justice (DOJ) does not have inherent power to issue Hold
Departure Order (HDO), unlike the courts, or to restrict the right
to travel in any way.—The point is that the DOJ may not justify
its imposition of restriction on the right to travel of the subjects of
DOJ Circular No. 41 by resorting to an analogy. Contrary to its
claim, it does not have inherent power to issue HDO, unlike the
courts, or to restrict the right to travel in any way. It is limited to
the powers expressly granted to it by law and may not extend the
same on its own accord or by any skewed interpretation of its
authority.
Same; It is in the interest of fairness that there be a complete
and exhaustive discussion on the matter since it entails the
imposition of penalty that bears upon the fitness of the respondent
as a member of the legal profession.—It is well to remember that
on November 18, 2011, a Resolution was issued requiring De
Lima to show cause why she should not be disciplinarily dealt or
be held in contempt for failure to comply with the TRO issued by
this Court. In view, however, of the complexity of the facts and
corresponding full discussion that it rightfully deserves, the Court
finds it more fitting to address the same in a separate proceeding.
It is in the interest of fairness that there be a complete and
exhaustive discussion on the matter since it entails the imposition
of penalty that bears upon the fitness of the respondent as a
member of the legal profession. The Court, therefore, finds it
proper to deliberate and resolve the charge of contempt against
De Lima in a separate proceeding that could accommodate a full
opportunity for her to present her case and provide a better
occasion for the Court to deliberate on her alleged disobedience to
a lawful order.
CARPIO, Acting CJ., Concurring Opinion:

Remedial Law; Civil Procedure; Moot and Academic;
View that a case becomes moot when it ceases to present a
justiciable controversy such that its adjudication would not
yield any practical value or use.—A case becomes moot
when it ceases to present a justiciable controversy

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such that its adjudication would not yield any practical
value or use. Where the petition is one for certiorari
seeking the nullification of an administrative issuance for
having been issued with grave abuse of discretion,
obtaining the other reliefs prayed for in the course of the
proceedings will not render the entire petition moot
altogether.
Same; Special Civil Actions; Certiorari; View that when
an accused assails via certiorari the judgment of conviction
rendered by the trial court, his subsequent release on parole
will not render the petition academic.—When an accused
assails via certiorari the judgment of conviction rendered
by the trial court, his subsequent release on parole will not
render the petition academic. Precisely, if the sentence
imposed upon him is void for lack of jurisdiction, the
accused should not have been paroled, but unconditionally
released since his detention was illegal. In the same vein,
even when the certification election sought to be enjoined
went on as scheduled, a petition for certiorari does not
become moot considering that the petition raises
jurisdictional errors that strike at the very heart of the
validity of the certification election itself. Indeed, an
allegation of a jurisdictional error is a justiciable
controversy that would prevent the mootness of a special
civil action for certiorari.
Constitutional Law; Right to Travel; View that the right
to travel is not absolute. However, while it can be restricted,
the only permissible grounds for restriction are national
security, public safety, and public health, which grounds
must at least be prescribed by an act of Congress.—The
right to travel is not absolute. However, while it can be
restricted, the only permissible grounds for restriction are
national security, public safety, and public health, which
grounds must at least be prescribed by an act of Congress.
In only two instances can the right to travel be validly
impaired even without a statutory authorization. The first
is when a court forbids the accused from leaving Philippine
jurisdiction in connection with a pending criminal case.
The second is when Congress, pursuant to its power of
legislative inquiry, issues a subpoena or arrest order
against a person. The necessity for a legislative enactment
expressly providing for a valid impairment of the right to
travel finds basis in no less than the fundamental law of
the land. Under Section 1, Article VI of the Constitution,
the legislative power is vested in Congress. Hence, only

Congress, and no other entity or office, may wield

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the power to make, amend, or repeal laws. Accordingly,
whenever confronted with provisions interspersed with
phrases like “in accordance with law” or “as may be
provided by law,” the Court turns to acts of Congress for a
holistic constitutional construction. To illustrate, in
interpreting the clause “subject to such limitations as may
be provided by law” in relation to the right to information,
the Court held in Gonzales v. Narvasa, 337 SCRA 733
(2000), that it is Congress that will prescribe these
reasonable conditions upon the access to information.
Executive Department; View that the Executive is limited
to executing the law. It cannot make, amend or repeal a law,
much less a constitutional provision.—Indeed, EO 292 is a
law of general application. Pushed to the hilt, the
argument of respondent will grant carte blanche to the
Executive in promulgating rules that curtail the enjoyment
of constitutional rights even without the sanction of
Congress. To repeat, the Executive is limited to executing
the law. It cannot make, amend or repeal a law, much less
a constitutional provision. For the same reason, in the
Court’s jurisprudence concerning the overseas travel of
court personnel during their approved leaves of absence
and with no pending criminal case before any court, I have
consistently maintained that only a law, not administrative
rules, can authorize the Court to impose administrative
sanctions for the employee’s failure to obtain a travel
permit.
Constitutional Law; Right to Travel; View that the
Revised Administrative Code of 1987 cannot lend credence
to a valid impairment of the right to travel, Republic Act
(RA) No. 8239, otherwise known as the Philippine Passport
Act of 1996, expressly allows the Secretary of Foreign
Affairs or any of the authorized consular officers to cancel
the passport of a citizen.—While the Revised
Administrative Code of 1987 cannot lend credence to a
valid impairment of the right to travel, Republic Act No.
(RA) 8239, otherwise known as the Philippine Passport Act
of 1996, expressly allows the Secretary of Foreign

Affairs or any of the authorized consular officers to
cancel the passport of a citizen.
Same; Same; View that if the crime affects national
security and public safety, the cancellation squarely falls
within the ambit of Section 4.—Can the DFA Secretary,
under Section 4 of RA 8239, cancel the passports of persons
under preliminary investigation? The

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answer depends on the nature of the crime for which the
passport holders are being investigated on. If the crime
affects national security and public safety, the cancellation
squarely falls within the ambit of Section 4. Thus, passport
holders facing preliminary investigation for the following
crimes are subject to the DFA Secretary’s power under
Section 4: (1) Title One, (Crimes Against National Security
and the Law of Nations), Title Three (Crimes Against
Public Order), Title Eight (Crimes Against Persons), Title
Nine (Crimes Against Liberty), Title Ten (Crimes Against
Property) and Title Eleven (Crimes Against Chastity), Book
II of the Revised Penal Code; (2) Section 261 (Prohibited
Acts), paragraphs (e), (f), (p), (q), (s) and (u) of the Omnibus
Election Code; and (3) Other related election laws such as
Section 27(b) of RA 7874, as amended by RA 9369. Indeed,
the phrases “national security” and “public safety,” which
recur in the text of the Constitution as grounds for the
exercise of powers or curtailment of rights, are
intentionally broad to allow interpretative flexibility, but
circumscribed at the same time to prevent limitless
application. At their core, these concepts embrace acts
undermining the State’s existence or public security. At
their fringes, they cover acts disrupting individual or
communal tranquility. Either way, violence or potential of
violence features prominently.
Same; Same; View that the “public safety” ground under
Section 4 of Republic Act (RA) No. 8239 unquestionably
includes violation of election-related offenses carrying the
potential of disrupting the peace, such as electoral sabotage
which involves massive tampering of votes (in excess of
10,000 votes); The cancellation of passports of individuals
investigated for this crime undoubtedly serves the interest of

public safety, much like individuals under investigation for
robbery, kidnapping, and homicide, among others.—The
“public safety” ground under Section 4 of RA 8239
unquestionably includes violation of election-related
offenses carrying the potential of disrupting the peace, such
as electoral sabotage which involves massive tampering of
votes (in excess of 10,000 votes). Not only does electoral
sabotage desecrate electoral processes, but it also arouses
heated passion among the citizenry, driving some to engage
in mass actions and others to commit acts of violence. The
cancellation of passports of individuals investigated for this
crime undoubtedly serves the interest of public safety,
much like individuals under investigation for robbery,
kidnapping, and homicide, among others.

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Genuino vs. De Lima

VELASCO, JR.,

Constitutional Law; Right to Travel; View that as
mandated by Section 6 of the Bill of Rights, any curtailment
of the people’s freedom of movement must indispensably be
grounded on an intrinsically valid law, and only whenever
necessary to protect national security, public safety, or
public health.—That the right to travel and to freedom of
movement are guaranteed protection by no less than the
fundamental law of our land brooks no argument. While
these rights are not absolute, the delimitation thereof must
rest on specific circumstances that would warrant the
intrusion of the State. As mandated by Section 6 of the Bill
of Rights, any curtailment of the people’s freedom of
movement must indispensably be grounded on an
intrinsically valid law, and only whenever necessary to
protect national security, public safety, or public health,
thus: SEC. 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. 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.
Same; Same; Hold Departure Orders; Watch List Orders;

Department of Justice; Jurisdiction; View that the
Department of Justice (DOJ) exceeded its jurisdiction when
it assumed to wield the power to issue hold departure orders
(HDOs) and watch list orders (WLOs), and allow
department orders which unduly infringe on the people’s
right to travel absent any specific legislation expressly
vesting it with authority to do so.—Jurisprudence dictates
that the validity of an administrative issuance is hinged on
compliance with the following requirements: 1) its
promulgation is authorized by the legislature; 2) it is
promulgated in accordance with the prescribed procedure;
3) it is within the scope of the authority given by the
legislature; and 4) it is reasonable. The DOJ, thus,
exceeded its jurisdiction when it assumed to wield the
power to issue hold departure orders (HDOs) and watch list
orders (WLOs), and allow department orders which unduly
infringe on the people’s right to travel absent any specific
legislation expressly vesting it with authority to do so.
Same; Same; Precautionary Warrants of Arrest; View
that the issuance of Precautionary Warrants of Arrests
(PWAs) or Precautionary Hold Departure Orders (PHDOs)
is moored on Section 2, Article

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III of the Bill of Rights of the Constitution.—Justice
Antonio T. Carpio, in his Separate Concurring Opinion,
makes mention of Republic Act No. 8239, otherwise known
as the Philippine Passport Act of 1996, which expressly
allows the Secretary of Foreign Affairs or any of the
authorized consular officers to cancel the passport of a
citizen, even those of persons under preliminary
investigations, for crimes affecting national security and
public safety. This course of action, while undoubtedly a
legally viable solution to the DOJ’s dilemma, would
nevertheless require the conduct of a hearing, pursuant to
Section 4 of the law. This would inevitably alert the said
persons of interest of the cause and purpose of the
cancellation of their passports that could, in turn, facilitate,
rather than avert, their disappearance to avoid the
processes of the court. As an alternative solution, it is my
humble submission that the above predicament can be

effectively addressed through the ex parte issuance of
precautionary warrants of arrest (PWAs) and/or
precautionary hold departure orders (PHDOs) prior to the
filing of formal charges and information against suspected
criminal personalities. The issuance of PWAs or PHDOs is
moored on Section 2, Article III of the Bill of Rights of the
Constitution.
Remedial Law; Criminal Procedure; Warrants of Arrest;
Search Warrants; View that the warrant clause permits the
issuance of warrants, whether it be a search warrant or a
warrant of arrest, even prior to the filing of a criminal
complaint or information in court.—It bears noting that the
warrant clause permits the issuance of warrants, whether
it be a search warrant or a warrant of arrest, even prior
to the filing of a criminal complaint or information
in court. This interpretation finds support in the crafting
of the provisions in our Rules of Criminal Procedure that
govern the issuance of search warrants. As stated in
Sections 4 to 6 of Rule 126, a search warrant may be issued
by the courts if, after personally examining the
complainants/applicants and the witnesses produced, they
are convinced that probable cause exists for the issuance
thereof. The rules do not require that 1) a criminal action
or even a complaint must have already been filed against
an accused; and that 2) persons of interest are notified of
such application before law enforcement may avail of this
remedy. The application for and issuance of a search
warrant are not conditioned on the existence of a criminal
action or even a complaint before an investigating
prosecutor against any person.

344

Genuino vs. De Lima

Same; Same; Same; Precautionary Warrant of Arrest;
View that anchored on Section 2, Article III of the
Constitution, a rule on precautionary warrant of arrest,
akin to a search warrant, may be crafted by the Supreme
Court (SC). The application will be done ex parte, by a
public prosecutor upon the initiative of our law enforcement
agencies, before an information is filed in court, and only in
certain serious crimes and offenses.—Anchored on Section
2, Article III of the Constitution, a rule on precautionary

warrant of arrest, akin to a search warrant, may be crafted
by the Court. The application will be done ex parte, by a
public prosecutor upon the initiative of our law
enforcement agencies, before an information is filed in
court, and only in certain serious crimes and offenses.
Before filing the application, the public prosecutor shall
ensure that probable cause exists that the crime has been
committed and that the person sought to be arrested
committed it. The law enforcement agencies may also opt to
ask for a PWA with PHDO or simply a PHDO. The judge’s
determination of probable cause shall be done in
accordance with the requirements in Section 2, Article III
of the Constitution. He shall set a hearing on the
application to personally examine under oath or
affirmation, in form of searching questions and answers,
the applicant and the witnesses he may produce on facts
personally known to them and attach to the record their
sworn statements. If satisfied of the existence of probable
cause based on the application and its attachments, the
testimonies of the witnesses, and other evidence presented
during the hearing, the judge may issue the warrant and
direct the Philippine National Police or the National
Bureau of Investigation to effect the arrest.

LEONEN, J., Separate Opinion:

Constitutional Law; Right to Travel; View that the right
to travel should not be given such a restrictive
interpretation.—The right to travel, as a concept, was
directly tackled in Marcos v. Manglapus, 177 SCRA 668
(1989), an early case decided under the 1987 Constitution.
It dealt specifically with the right of former President
Marcos to return to the Philippines. In resolving the case,
this Court distinguished between the right to return to
one’s country and the general right to travel. The right to
return to one’s country was treated separately and deemed
excluded from the constitutionally protected right to travel.
In my view, the right to travel should not be given such a
restrictive interpretation. In the broad sense, the

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right to travel refers to the “right to move from one place to
another.” The delimitation set in Marcos effectively
excludes instances that may involve a curtailment on the
right to travel within the Philippines and the right to travel
to the Philippines. This case presents us with an
opportunity to revisit Marcos and abandon its narrow and
restrictive interpretation. In this regard, the constitutional
provision should be read to include travel within the
Philippines and travel to and from the Philippines.
Same; Same; View that undeniably, the right to travel is
not absolute. Article III, Section 6 of the Constitution states
that any curtailment must be based on “national security,
public safety, or public health, as may be provided by
law.”—Undeniably, the right to travel is not absolute.
Article III, Section 6 of the Constitution states that any
curtailment must be based on “national security, public
safety, or public health, as may be provided by law.”
Statutory Construction; Words and Phrases; View that
the phrase “as may be provided by law” should not be
literally interpreted to mean statutory law. Its usage should
depend upon the context in which it is written. As used in
the Constitution, the word “law” does not only refer to
statutes but embraces the Constitution itself.—The ponencia
proposes that only a statute or a legislative enactment may
impair the right to travel. Respectfully, I disagree. In my
view, the phrase “as may be provided by law” should not be
literally interpreted to mean statutory law. Its usage
should depend upon the context in which it is written. As
used in the Constitution, the word “law” does not only refer
to statutes but embraces the Constitution itself. The Bill of
Rights is replete with provisions that provide a similar
phraseology. For instance, both the due process clause and
the equal protection clause under Article III, Section 1 of
the Constitution contain the word “law.”
Constitutional Law; Right to Travel; View that it is
inaccurate to say that the right of persons to travel to and
from the Philippines can only be impaired by statutory law.
It is also inaccurate to say that the impairment should only
be limited to national security, public safety, or public
health considerations for it to be valid.—In this regard, it is
inaccurate to say that the right of persons to travel to and
from the Philippines can only be impaired by statutory law.
It is also inaccurate to say that the impairment should only
be limited

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to national security, public safety, or public health
considerations for it to be valid. For instance, the assailed
department order in Philippine Association of Service
Exporters, Inc. v. Drilon, 163 SCRA 386 (1988), was not
founded upon national security, public safety, or public
health but on the state’s policy of affording protection to
labor. The department order was deemed a valid restriction
on the right to travel.
Same; Same; Court Personnel; Administrative
Supervision; View that the power of the Supreme Court (SC)
to regulate the foreign travel of court personnel does not
emanate from statutory law, nor is it based on national
security, public safety, or public health considerations.
Rather, it is an inherent power flowing from Article III,
Section 5(6) of the Constitution, which grants the Supreme
Court the power of administrative supervision over all
courts and court personnel.—The term “law” in Article III,
Section 6 can refer to the Constitution itself. This can be
understood by examining this Court’s power to regulate
foreign travel of court personnel and the nature and
functions of bail. The power of this Court to regulate the
foreign travel of court personnel does not emanate from
statutory law, nor is it based on national security, public
safety, or public health considerations. Rather, it is an
inherent power flowing from Article III, Section 5(6) of the
Constitution, which grants this Court the power of
administrative supervision over all courts and court
personnel.
Same; Same; View that the power of courts to restrict the
travel of persons out on bail is an incident of its power to
grant or deny bail.—The power of courts to restrict the
travel of persons out on bail is an incident of its power to
grant or deny bail. As explained in Santiago v. Vasquez,
217 SCRA 633 (1993): Courts possess certain inherent
powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly
conferred on them. These inherent powers are such powers
as are necessary for the ordinary and efficient exercise of
jurisdiction; or essential to the existence, dignity and
functions of the courts, as well as to the due administration
of justice; or are directly appropriate, convenient and
suitable to the execution of their granted powers; and
include the power to maintain the court’s jurisdiction and
render it effective in behalf of the litigants. Therefore,
while a court may be expressly granted the incidental

powers necessary to effectuate its jurisdiction, a grant of
jurisdiction, in the absence of prohibitive legislation, im-

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plies the necessary and usual incidental powers essential to
effectuate it, and, subject to existing laws and
constitutional provisions, every regularly constituted court
has the power to do all things that are reasonably
necessary for the administration of justice within the scope
of its jurisdiction. Hence, demands, matters, or questions
ancillary or incidental to, or growing out of, the main
action, and coming within the above principles, may be
taken cognizance of by the court and determined, since
such jurisdiction is in aid of its authority over the principal
matter, even though the court may thus be called on to
consider and decide matters which, as original causes of
action, would not be within its cognizance. Furthermore, a
court has the inherent power to make interlocutory orders
necessary to protect its jurisdiction. Such being the case,
with more reason may a party-litigant be subjected to
proper coercive measures where he disobeys a proper order,
or commits a fraud on the court or the opposing party, the
result of which is that the jurisdiction of the court would be
ineffectual. What ought to be done depends upon the
particular circumstances.
Same; Same; View that the Department of Justice (DOJ)
is neither empowered by a specific law nor does it possess
the inherent power to restrict the right to travel of persons
under criminal investigation through the issuance of hold
departure orders (HDOs), watch list orders (WLOs), and
allow departure orders (ADOs).—The Department of
Justice is neither empowered by a specific law nor does it
possess the inherent power to restrict the right to travel of
persons under criminal investigation through the issuance
of hold departure orders, watch list orders, and allow
departure orders. Its mandate under the Administrative
Code of 1987 to “[investigate the commission of crimes
[and] prosecute offenders” cannot be interpreted so broadly
as to include the power to curtail a person’s right to travel.
Furthermore, Department Order No. 41, Series of 2010
cannot be likened to the power of the courts to restrict the

travel of persons on bail as the latter presupposes that the
accused was arrested by virtue of a valid warrant and
placed under the court’s jurisdiction. For these reasons,
Department of Justice Circular No. 41, Series of 2010, is
unconstitutional.
SPECIAL CIVIL ACTIONS in the Supreme Court.

Certiorari and Prohibition.

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Genuino vs. De Lima
The facts are stated in the opinion of the Court.

Ramon S. Esguerra and Benjamin C. Santos for
petitioner in G.R. No. 197930.
Estelito P. Mendoza, Anacleto M. Diaz, Maria Rosario
Z. Del Rosario, Christian B. Diaz and Analene V. Balisong
for petitioner in G.R. No. 199034.
Ferdinand S. Topacio and Joselito O. Lomangaya for
petitioner in G.R. No. 199046.
REYES, JR., J.:

These consolidated Petitions for Certiorari and
Prohibition with Prayer for the Issuance of Temporary
Restraining Orders (TRO) and/or Writs of Preliminary
Injunction Under Rule 65 of the Rules of Court assail the
constitutionality of Department of Justice (DOJ) Circular
No. 41, Series of 2010, otherwise known as the
“Consolidated Rules and Regulations Governing Issuance
and Implementation of Hold Departure Orders, Watch List
Orders and Allow Departure Orders,” on the ground that it
infringes on the constitutional right to travel.
Also, in G.R. Nos. 199034 and 199046, the petitioners
therein seek to annul and set aside the following orders
issued by the former DOJ Secretary Leila De Lima (De
Lima), pursuant to DOJ Circular No. 41, thus:
1. Watch List Order No. ASM-11-237 dated August 9,
2011;1
2. Amended Watch List Order No. 2011-422 dated
September 6, 2011;2 and
www.central.com.ph/sfsreader/session/00000177628fdcb73b00bc2f003600fb002c009e/t/?o=False
3 26/128
3. Watch List Order No. 2011-573 dated October 27, 2011.3
_______________
1 Rollo (G.R. No. 199034), Volume I, pp. 45-46.

2 Id., at pp. 47-48.

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In a Supplemental Petition, petitioner Gloria
Macapagal-Arroyo (GMA) further seeks the invalidation of
the Order4 dated November 8, 2011, denying her
application for an Allow Departure Order (ADO).
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino
(Efraim), Erwin F. Genuino (Erwin) and Sheryl Genuino-See
(Genuinos) pray for the nullification of the Hold Departure
Order5 (HDO) No. 2011-64 dated July 22, 2011 issued against
them.

Antecedent Facts

On March 19, 1998, then DOJ Secretary Silvestre H.
Bello III issued DOJ Circular No. 17, prescribing rules and
regulations governing the issuance of HDOs. The said
issuance was intended to restrain the indiscriminate
issuance of HDOs which impinge on the people’s right to
travel.
On April 23, 2007, former DOJ Secretary Raul M.
Gonzalez issued DOJ Circular No. 18, prescribing rules and
regulations governing the issuance and implementation of
watch list orders. In particular, it provides for the power of
the DOJ Secretary to issue a Watch List Order (WLO)
against persons with criminal cases pending preliminary
investigation or petition for review before the DOJ.
Further, it states that the DOJ Secretary may issue an
ADO to a person subject of a WLO who intends to leave the
country for some exceptional reasons.6 Even with the
promulgation of DOJ Circular No. 18, however, DOJ
Circular No. 17 remained the governing rule on the
issuance of HDOs by the DOJ.
On May 25, 2010, then Acting DOJ Secretary Alberto C.

Agra issued the assailed DOJ Circular No. 41,
consolidating
_______________
3 Id., at pp. 49-58.

4 Id., at pp. 106-116.
5 Rollo (G.R. No. 197930), pp. 30-35.
6 Rollo (G.R. No. 199034), Volume III, pp. 901-902.

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Genuino vs. De Lima

DOJ Circular Nos. 17 and 18, which will govern the
issuance and implementation of HDOs, WLOs, and ADOs.
Section 10 of DOJ Circular No. 41 expressly repealed all
rules and regulations contained in DOJ Circular Nos. 17
and 18, as well as all instructions, issuances or orders or
parts thereof which are inconsistent with its provisions.
After the expiration of GMA’s term as President of the
Republic of the Philippines and her subsequent election as
Pampanga representative, criminal complaints were filed
against her before the DOJ, particularly:
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay v.

Gloria Macapagal-Arroyo, et al., for plunder;7
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez v.
Gloria Macapagal-Arroyo, et al., for plunder, malversation
and/or illegal use of OWWA funds, graft and corruption,
violation of the Omnibus Election Code (OEC), violation of
the Code of Conduct and Ethical Standards for Public
Officials, and qualified theft;8 and
(c) XVI-INV-11F-00238, entitled Francisco I. Chavez v. Gloria
Macapagal-Arroyo, et al., for plunder, malversation, and/or illegal
use of public funds, graft and corruption, violation of the OEC,
violation of the Code of Conduct and Ethical Standards for Public
Officials and qualified theft.9

In view of the foregoing criminal complaints, De Lima
issued DOJ WLO No. 2011-422 dated August 9, 2011
against GMA pursuant to her authority under DOJ
Circular No. 41. She also ordered for the inclusion of

GMA’s name in the Bu-
_______________
7 Id., at p. 902.
8 Id.
9 Id., at p. 903.

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reau of Immigration (BI) watch list.10 Thereafter, the BI
issued WLO No. ASM-11-237,11 implementing De Lima’s
order.
On September 6, 2011, De Lima issued DOJ Amended
WLO No. 2011-422 against GMA to reflect her full name
“Ma. Gloria M. Macapagal-Arroyo” in the BI Watch
List.12 WLO No. 2011-422, as amended, is valid for a period
of 60 days, or until November 5, 2011, unless sooner
terminated or otherwise extended. This was lifted in due
course by De Lima, in an Order dated November 14, 2011,
following the expiration of its validity.13
Meanwhile, on October 20, 2011, two criminal
complaints for Electoral Sabotage and Violation of the OEC
were filed against GMA and her husband, Jose Miguel
Arroyo (Miguel Arroyo), among others, with the DOJ-
Commission on Elections (DOJ-COMELEC) Joint
Investigation Committee on 2004 and 2007 Election
Fraud,14 specifically:

(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-
COMELEC Fact-Finding Team v. Gloria Macapagal-
Arroyo, et al. (for the Province of Maguindanao), for
electoral sabotage/violation of the OEC and COMELEC
Rules and Regulations;15 and
(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino
Pimentel III v. Gloria Macapagal-Arroyo, et al., for electoral
sabotage.16

Following the filing of criminal complaints, De Lima
issued DOJ WLO No. 2011-573 against GMA and Miguel
Arroyo on
_______________
10 Id.
12 Id., at pp. 47-48.
13 Rollo (G.R. No. 199034), Volume III, p. 904.
14 Id.
15 Id.
16 Id.

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Genuino vs. De Lima

October 27, 2011, with a validity period of 60 days, or until
December 26, 2011, unless sooner terminated or otherwise
extended.17
In three separate letters dated October 20, 2011,
October 21, 2011, and October 24, 2011, GMA requested for
the issuance of an ADO, pursuant to Section 7 of DOJ
Circular No. 41, so that she may be able to seek medical
attention from medical specialists abroad for
her hypoparathyroidism and metabolic bone mineral
disorder. She mentioned six different countries where she
intends to undergo consultations and treatments: United
States of America, Germany, Singapore, Italy, Spain and
Austria.18 She likewise undertook to return to the
Philippines, once her treatment abroad is completed, and
participate in the proceedings before the DOJ.19 In support
of her application for ADO, she submitted the following
documents, viz.:

1. Second Endorsement dated September 16, 2011 of
Speaker Feliciano Belmonte, Jr. to the Secretary of Foreign
Affairs, of her Travel Authority;
2. First Endorsement dated October 19, 201120 of
Artemio A. Adasa, OIC Secretary General of the
House of Representatives, to the Secretary of Foreign
Affairs, amending her Travel Authority to include
travel to Singapore, Spain and Italy;
3. Affidavit dated October 21, 2011,21 stating the

purpose of travel to Singapore, Germany and Austria;
4. Medical Abstract dated October 22, 2011,22 signed by
Dr. Roberto Mirasol (Dr. Mirasol);
_______________
17 Id., at p. 905.
18 Id., at pp. 905-906.
19 Id., at p. 1028.
20 Rollo (G.R. No. 199034), Volume I, p. 76.
21 Id., at pp. 82-83.

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5. Medical Abstract dated October 24, 2011,23 signed
by Dr. Mario Ver;
6. Itinerary submitted by the Law Firm of Diaz, Del
Rosario and Associates, detailing the schedule of
consultations with doctors in Singapore.

To determine whether GMA’s condition necessitates
medical attention abroad, the Medical Abstract prepared
by Dr. Mirasol was referred to then Secretary of the
Department of Health, Dr. Enrique Ona (Dr. Ona) for his
expert opinion as the chief government physician. On
October 28, 2011, Dr. Ona, accompanied by then
Chairperson of the Civil Service Commission, Francisco
Duque, visited GMA at her residence in La Vista
Subdivision, Quezon City. Also present at the time of the
visit were GMA’s attending doctors who explained her
medical condition and the surgical operations conducted on
her. After the visit, Dr. Ona noted that “Mrs. Arroyo is
recuperating reasonably well after having undergone a
series of three major operations.”24
On November 8, 2011, before the resolution of her
application for ADO, GMA filed the present Petition
for Certiorari and Prohibition under Rule 65 of the Rules of
Court with Prayer for the Issuance of a TRO and/or Writ of
Preliminary Injunction, docketed as G.R. No. 199034, to
annul and set aside DOJ Circular No. 41 and WLOs issued
against her for allegedly being unconstitutional.25
A few hours thereafter, Miguel Arroyo filed a separate
Petition for Certiorari, and Prohibition under the same
rule, with Prayer for the Issuance of a TRO and/or a Writ of
Preliminary Injunction, likewise assailing the
constitutionality of
_______________
22 Id., at p. 86.
23 Id., at pp. 68-75.
25 Id., at p. 909.

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Genuino vs. De Lima

DOJ Circular No. 41 and WLO No. 2011-573. His petition
was docketed as G.R. No. 199046.26
Also, on November 8, 2011, De Lima issued an
Order,27 denying GMA’s application for an ADO, based on
the following grounds:
First, there appears to be discrepancy on the medical condition

of the applicant as stated in her affidavit, on the other hand, and
the medical abstract of the physicians as well as her physician’s
statements to Secretary Ona during the latter’s October 28, 2011
visit to the Applicant, on the other.
xxxx
Second, based on the medical condition of Secretary
Ona, there appears to be no urgent and immediate medical
emergency situation for Applicant to seek medical
treatment abroad. x x x.
xxxx
Third, Applicant lists several countries as her
destination, some of which were not for purposes of medical
consultation, but for attending conferences. x x x.
xxxx
Fourth, while the Applicant’s undertaking is to return to
the Philippines upon the completion of her medical
treatment, this means that her return will always depend
on said treatment, which, based on her presentation of her

condition, could last indefinitely. x x x.
xxx
Fifth, x x x x. Applicant has chosen for her destination
five (5) countries, namely, Singapore, Germany, Austria,
Spain and Italy, with which the Philippines has no existing
extradition treaty. x x x.
_______________
26 Id.

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Genuino vs. De Lima
xxxx
IN VIEW OF THE FOREGOING, the application for
an Allow Departure Order (ADO) of Congresswoman MA.
GLORIA M. MACAPAGAL-ARROYO is hereby DENIED
for lack of merit.
SO ORDERED.28
On November 9, 2011, De Lima, together with her co-

respondents, Ricardo V. Paras, III, Chief State Counsel of
the DOJ and Ricardo A. David, Jr., who was then BI
Commissioner (respondents), filed a Very Urgent
Manifestation and Motion29 in G.R. Nos. 199034 and
199046, praying (1) that they be given a reasonable time to
comment on the petitions and the applications for a TRO
and/or writ of preliminary injunction before any action on
the same is undertaken by the Court; (2) that the
applications for TRO and/or writ of preliminary injunction
be denied for lack of merit; and (3) that the petitions be set
for oral arguments after the filing of comments thereto.30
On November 13, 2011, GMA filed a Supplemental
Petition31 which included a prayer to annul and set aside
the Order dated November 8, 2011, denying her application
for ADO. On the following day, GMA filed her
Comment/Opposition32 to the respondents’ Very Urgent
Manifestation and Motion dated November 9, 2011, in G.R.
No. 199034.
On November 15, 2011, the Court issued a

Resolution,33 ordering the consolidation of G.R. Nos. 199034 and
199046, and requiring the respondents to file their comment
thereto not later than November 18, 2011. The Court likewise
resolved to
_______________
28 Id., at pp. 110, 112, 113-114, 116.

29 Id., at pp. 89-104; Rollo (G.R. No. 199046), pp. 59-70.
30 Id., at pp. 102-103; id., at p. 68.
31 Id., at pp. 133-174.
32 Id., at pp. 189-206.
33 Id., at pp. 208-210.

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Genuino vs. De Lima

issue a TRO in the consolidated petitions, enjoining the
respondents from enforcing or implementing DOJ Circular No. 41
and WLO Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated
September 6, 2011, and 2011-573 dated October 27, 2011, subject
to the following conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million

Pesos (P2,000,000.00) payable to this Court within five (5)
days from notice hereof. Failure to post the bond within the
aforesaid period will result in the automatic lifting of the
temporary restraining order;
(ii) The petitioners shall appoint a legal representative
common to both of them who will receive subpoena, orders
and other legal processes on their behalf during their
absence. The petitioners shall submit the name of the legal
representative, also within five (5) days from notice hereof;
and
(iii) If there is a Philippine embassy or consulate in the
place where they will be traveling, the petitioners shall
inform said embassy or consulate by personal appearance or
by phone of their whereabouts at all times.34
On the very day of the issuance of the TRO, the

petitioners tendered their compliance35 with the conditions
set forth in the Resolution dated November 15, 2011 of the

Court and submitted the following: (1) a copy of Official
Receipt No. 0030227-SC-EP, showing the payment of the
required cash bond of Two Million Pesos
36
(P2,000,000.00); (2) certification from the Fiscal and
Management and Budget Office of the Supreme Court,
showing that the cash bond is already on file with the
office;37 (3) special powers of attorney executed by the
petitioners, appointing their respective lawyers as their
legal
_______________
34 Id., at pp. 208-209.

35 Id., at pp. 337-339, 344-345.
36 Id., at p. 347.
37 Id., at p. 348.

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representatives;38 and (4) an undertaking to report to the
nearest consular office in the countries where they will
travel.39
At around 8:00 p.m. on the same day, the petitioners
proceeded to the Ninoy Aquino International Airport
(NAIA), with an aide-de-camp and a private nurse, to take
their flights to Singapore. However, the BI officials at
NAIA refused to process their travel documents which
ultimately resulted to them not being able to join their
flights.40
On November 17, 2011, GMA, through counsel, filed an
Urgent Motion41 for Respondents to Cease and Desist from
Preventing Petitioner GMA from Leaving the Country. She
strongly emphasized that the TRO issued by the Court was
immediately executory and that openly defying the same is
tantamount to gross disobedience and resistance to a
lawful order of the Court.42 Not long after, Miguel Arroyo
followed through with an Urgent Manifestation,43 adopting
and repleading all the allegations in GMA’s motion.
On November 16, 2011, the respondents filed a Consolidated
Urgent Motion for Reconsideration and/or to Lift TRO,44 praying
that the Court reconsider and set aside the TRO issued in the
consolidated petitions until they are duly heard on the merits. In
support thereof, they argue that the requisites for the issuance of
a TRO and writ of preliminary injunction were not established by
the petitioners. To begin with, the petitioners failed to present a
clear and mistakable right which needs to be protected by the
issuance of a TRO. While the petitioners anchor their right in
esse on the right to travel
_______________
38 Id., at pp. 349-350.

39 Id., at p. 342.
40 Id., at p. 367.
41 Id., at pp. 364-375.
42 Id., at p. 369.
43 Id., at pp. 382-384.
44 Id., at pp. 288-323.

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Genuino vs. De Lima

under Section 6, Article III of the 1987 Constitution, the
said right is not absolute. One of the limitations on the
right to travel is DOJ Circular No. 41, which was issued
pursuant to the rulemaking powers of the DOJ in order to
keep individuals under preliminary investigation within
the jurisdiction of the Philippine criminal justice system.
With the presumptive constitutionality of DOJ Circular No.
41, the petitioners cannot claim that they have a clear and
unmistakable right to leave the country as they are the
very subject of the mentioned issuance.45 Moreover, the
issuance of a TRO will effectively render any judgment on
the consolidated petitions moot and academic. No amount
of judgment can recompense the irreparable injury that the
state is bound to suffer if the petitioners are permitted to
leave the Philippine jurisdiction.46
On November 18, 2011, the Court issued a
Resolution,47 requiring De Lima to show cause why she
should not be disciplinarily dealt with or held in contempt
of court for failure to comply with the TRO. She was
likewise ordered to immediately comply with the TRO by
allowing the petitioners to leave the country. At the same

time, the Court denied the Consolidated Urgent Motion for
Reconsideration and/or to Lift TRO dated November 16,
2011 filed by the Office of the Solicitor General.48
On even date, the COMELEC, upon the
recommendation of the Joint DOJ-COMELEC Preliminary
Investigation Committee, filed an information for the crime
of electoral sabotage under Section 43(b) of Republic Act
(R.A.) No. 9369 against GMA, among others, before the
Regional Trial Court (RTC) of Pasay City, which was
docketed as R-PSY-11-04432-CR49 and raffled to Branch
112. A warrant of arrest for GMA was forthwith issued.
_______________
45 Id., at p. 311.
46 Id., at pp. 318-319.
47 Id., at pp. 394-398.
48 Id., at pp. 394-395.
49 Rollo (G.R. No. 199034), Volume II, pp. 525-527.

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Following the formal filing of an Information in court
against GMA, the respondents filed an Urgent
Manifestation with Motion to Lift TRO.50 They argue that
the filing of the information for electoral sabotage against
GMA is a supervening event which warrants the lifting of
the TRO issued by this Court. They asseverate that the
filing of the case vests the trial court the jurisdiction to rule
on the disposition of the case. The issue therefore on the
validity of the assailed WLOs should properly be raised and
threshed out before the RTC of Pasay City where the
criminal case against GMA is pending, to the exclusion of
all other courts.51
Also, on November 18, 2011, the COMELEC issued a
Resolution, dismissing the complaint for violation of OEC
and electoral sabotage against Miguel Arroyo, among
others, which stood as the basis for the issuance of WLO
No. 2011-573. Conformably, the DOJ issued an Order dated
November 21, 2011,52 lifting WLO No. 2011-573 against
Miguel Arroyo and ordering for the removal of his name in

the BI watch list.
Thereafter, the oral arguments on the consolidated petitions
proceeded as scheduled on November 22, 2011, despite requests
from the petitioners’ counsels for an earlier date. Upon the
conclusion of the oral arguments on December 1, 2011, the parties
were required to submit their respective memoranda.53
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated
July 22, 201154 was issued against Genuinos, among
others, after criminal complaints for Malversation, as
defined under Article 217 of the Revised Penal Code (RPC),
and Violation of Sections 3(e), (g), (h) and (i) of R.A. No.
3019 were filed against them by the Philippine Amusement
and Gaming
_______________
50 Id., at pp. 518-524.

51 Id., at pp. 519-521.
52 Rollo (G.R. No. 199034), Volume III, pp. 1017-1018.
53 Id., at p. 914.
54 Rollo (G.R. No. 197930), pp. 30-35.

360

Genuino vs. De Lima

Corporation (PAGCOR), through its Director, Eugene
Manalastas, with the DOJ on June 14, 2011, for the
supposed diversion of funds for the film “Baler.” This was
followed by the filing of another complaint for Plunder
under R.A. No. 7080, Malversation under Article 217 of the
RPC and Violation of Section 3 of R.A. No. 3019, against
the same petitioners, as well as members and incorporators
of BIDA Production, Inc., Wildformat, Inc. and Pencil First,
Inc., for allegedly siphoning off PAGCOR funds into the
coffers of BIDA entities. Another complaint was thereafter
filed against Efraim and Erwin was filed before the Office
of the Ombudsman for violation of R.A. No. 3019 for
allegedly releasing PAGCOR funds intended for the
Philippine Sports Commission directly to the Philippine
Amateur Swimming Association, Inc.55 In a Letter56 dated
July 29, 2011 addressed to Chief State Counsel Ricardo
Paras, the Genuinos, through counsel, requested that the

HDO against them be lifted. This plea was however denied
in a Letter57 dated August 1, 2011 which prompted the
institution of the present petition by the Genuinos. In a
Resolution58 dated April 21, 2015, the Court consolidated
the said petition with G.R. Nos. 199034 and 199046.
The Court, after going through the respective
memoranda of the parties and their pleadings, sums up the
issues for consideration as follows:

I
WHETHER THE COURT MAY EXERCISE ITS POWER
OF JUDICIAL REVIEW;

II
WHETHER THE DOJ HAS THE AUTHORITY TO
ISSUE DOJ CIRCULAR NO. 41; and
_______________
55 Id., at pp. 7-8.

56 Id., at pp. 36-42.
57 Id., at pp. 43-45.
58 Id., at p. 417.

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Genuino vs. De Lima
III

WHETHER THERE IS GROUND TO HOLD THE
FORMER DOJ SECRETARY GUILTY OF CONTEMPT OF
COURT.
Ruling of the Court

The Court may exercise
its power of judicial re-
view despite the filing of
information for electoral
sabotage against GMA

It is the respondents’ contention that the present
petitions should be dismissed for lack of a justiciable
controversy. They argue that the instant petitions had been
rendered moot and academic by (1) the expiration of the
WLO No. 422 dated August 9, 2011, as amended by the
Order dated September 6, 2011;59 (2) the filing of an
information for electoral sabotage against GMA;60 and (3)
the lifting of the WLO No. 2011-573 dated November 14,
2011 against Miguel Arroyo and the subsequent deletion of
his name from the BI watch list after the COMELEC En
Banc dismissed the case for electoral sabotage against
him.61
The power of judicial review is articulated in Section 1,
Article VIII of the 1987 Constitution which reads:
Section 1. The judicial power shall be vested in one

Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine
_______________

60 Id., at p. 923.
61 Id.

362

Genuino vs. De Lima
whether or not there has been a grave abuse of discretion

amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.62
Like almost all powers conferred by the Constitution,

the power of judicial review is subject to limitations, to wit:
(1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging
the act must have the standing to question the validity of
the subject act or issuance; otherwise stated, he must have
a personal and substantial interest in the case such that he

has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.63
Except for the first requisite, there is no question with
respect to the existence of the three (3) other requisites.
Petitioners have the locus standi to initiate the petition as
they claimed to have been unlawfully subjected to restraint
on their right to travel owing to the issuance of WLOs
against them by authority of DOJ Circular No. 41. Also,
they have contested the constitutionality of the questioned
issuances at the most opportune time.
The respondents, however, claim that the instant
petitions have become moot and academic since there is no
longer any actual case or controversy to resolve following
the subsequent filing of an information for election
sabotage against GMA on November 18, 2011 and the
lifting of WLO No. 2011-573 against Miguel Arroyo and the
deletion of his name from the BI watch list after the
dismissal of the complaint for electoral sabotage against
him.
_______________
62 THE 1987 CONSTITUTION, Article VIII, Sec. 1.

63 Lawyers against Monopoly and Poverty (LAMP) v. Secretary of
Budget and Management, 686 Phil. 357, 369; 670 SCRA 373, 382 (2012).

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To be clear, “an actual case or controversy involves a
conflict of legal right, an opposite legal claims susceptible
of judicial resolution. It is definite and concrete, touching
the legal relations of parties having adverse legal interest;
a real and substantial controversy admitting of specific
relief.”64 When the issues have been resolved or when the
circumstances from which the legal controversy arose no
longer exist, the case is rendered moot and academic. “A
moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or

value.”65
The Court believes that the supervening events
following the filing of the instant petitions, while may have
seemed to moot the instant petitions, will not preclude it
from ruling on the constitutional issues raised by the
petitioners. The Court, after assessing the necessity and
the invaluable gain that the members of the bar, as well as
the public may realize from the academic discussion of the
constitutional issues raised in the petition, resolves to put
to rest the lingering constitutional questions that abound
the assailed issuance. This is not a novel occurrence as the
Court, in a number of occasions, took up cases up to its
conclusion notwithstanding claim of mootness.
In Evelio Javier v. The Commission on Elections,66 the
Court so emphatically stated, thus:
The Supreme Court is not only the highest arbiter of

legal questions but also the conscience of the government.
The citizen comes to us in quest of law but we must also
give him justice. The two are not always the same. There
are times when we cannot grant the latter because the issue
has been settled and decision is no
_______________
64 David v. Macapagal-Arroyo, 522 Phil. 705, 753; 489 SCRA 160, 213
(2006).
65 Id.
66 228 Phil. 193, 211; 144 SCRA 194, 198 (1986).

364

Genuino vs. De Lima
longer possible according to the law. But there are also

times when although the dispute has disappeared, as in this
case, it nevertheless cries out to be resolved. Justice
demands that we act then, not only for the vindication of
the outraged right, though gone, but also for the guidance of
and as a restraint upon the future.67
In Prof. David v. Pres. Macapagal-Arroyo,68 the Court

proceeded in ruling on the constitutionality of Presidential
Proclamation (PP) No. 1017 in which GMA declared a state
of national emergency, and General Order No. 5 (G.O. No.
5), which ordered the members of the Armed Forces of the
Philippines and the Philippine National Police to carry all
necessary actions to suppress acts of terrorism and lawless
violence, notwithstanding the issuance of PP 1021 lifting
both issuances. The Court articulated, thus:
The Court holds that President Arroyo’s issuance of PP 1021

did not render the present petitions moot and academic. During
the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing
it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do
they justify these alleged illegal acts? These are the vital
issues that must be resolved in the present petitions. It must be
stressed that unconstitutional act is not a law, it confers no
rights, it imposes no duties, it affords no protection; it is in
legal contemplation, inoperative.
The “moot and academic” principle is not a magical
formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot
and academic, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the
situation and the paramount public interest is
involved; third, when constitutional issue raised requires
formula-
_______________
67 Id., at p. 199; p. 198.

68 Supra note 64 at p. 809; p. 201.

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Genuino vs. De Lima
tion of controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet evading
review.69 (Citations omitted and emphasis supplied)
In the instant case, there are exceptional circumstances

that warrant the Court’s exercise of its power of judicial
review. The petitioners impute the respondents of violating
their constitutional right to travel through the enforcement
of DOJ Circular No. 41. They claim that the issuance
unnecessarily places a restraint on the right to travel even
in the absence of the grounds provided in the Constitution.
There is also no question that the instant petitions
involved a matter of public interest as the petitioners are
not alone in this predicament and there can be several
more in the future who may be similarly situated. It is not
far-fetched that a similar challenge to the constitutionality
of DOJ Circular No. 41 will recur considering the
thousands of names listed in the watch list of the DOJ, who
may brave to question the supposed illegality of the
issuance. Thus, it is in the interest of the public, as well as
for the education of the members of the bench and the bar,
that this Court takes up the instant petitions and resolves
the question on the constitutionality of DOJ Circular No.
41.

The Constitution is
inviolable and su-
preme of all laws

We begin by emphasizing that the Constitution is the
fundamental, paramount and supreme law of the nation; it
is deemed written in every statute and contract.70 If a law
or an
_______________
69 Id., at p. 754; pp. 214-215.

70 Tawang Multi-Purpose Cooperative v. La Trinidad Water District,
661 Phil. 390, 403; 646 SCRA 21, 36 (2011).

366

Genuino vs. De Lima

administrative rule violates any norm of the Constitution, that issuance
is null and void and has no effect.
The Constitution is a testament to the living democracy

in this jurisdiction. It contains the compendium of the
guaranteed rights of individuals, as well as the powers
granted to and restrictions imposed on government officials
and instrumentalities. It is that lone unifying code, an
inviolable authority that demands utmost respect and
obedience.
The more precious gifts of democracy that the
Constitution affords us are enumerated in the Bill of
Rights contained in Article III. In particular, Section 1
thereof provides:
Section 1. No person shall be deprived of life, liberty,

or property without due process of law, nor shall any person
be denied the equal protection of the laws.

The guaranty of liberty does not, however, imply
unbridled license for an individual to do whatever he
pleases, for each is given an equal right to enjoy his
liberties, with no one superior over another. Hence, the
enjoyment of one’s liberties must not infringe on anyone
else’s equal entitlement.
Surely, the Bill of Rights operates as a protective cloak
under which the individual may assert his liberties.
Nonetheless, “the Bill of Rights itself does not purport to be
an absolute guaranty of individual rights and liberties.
Even liberty itself, the greatest of all rights, is not
unrestricted license to act according to one’s will. It is
subject to the far more overriding demands and
requirements of the greater number.”71
It is therefore reasonable that in order to achieve
communal peace and public welfare, calculated limitations
in the exercise of individual freedoms are necessary. Thus,
in many significant provisions, the Constitution itself has
provided for exceptions and restrictions to balance the free
exercise of
_______________
71 Philippine Association of Service Exporters, Inc. v. Drilon, 246 Phil.

393, 399; 163 SCRA 386, 391 (1988).

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Genuino vs. De Lima

rights with the equally important ends of promoting
common good, public order and public safety.
The state’s exercise of police power is also well-
recognized in this jurisdiction as an acceptable limitation to
the exercise of individual rights. In Philippine Association
of Service Exporters, Inc. v. Drilon,72 it was defined as the
inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety, and
welfare of society. It is rooted in the conception that men in
organizing the state and imposing upon its government
limitations to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of such
salutary measures calculated to ensure communal peace,
safety, good order, and welfare.73
Still, it must be underscored that in a constitutional
government like ours, liberty is the rule and restraint the
exception.74 Thus, restrictions in the exercise of
fundamental liberties are heavily guarded against so that
they may not unreasonably interfere with the free exercise
of constitutional guarantees.

The right to travel and
its limitations

The right to travel is part of the “liberty” of which a
citizen cannot be deprived without due process of law.75 It
is part and parcel of the guarantee of freedom of movement
that the Constitution affords its citizen. Pertinently,
Section 6, Article III of the Constitution provides:
_______________
72 Id.
73 Id., at p. 399; p. 391.
74 Morfe v. Mutuc, 130 Phil. 415, 430; 22 SCRA 424, 439-440 (1968).
75 Kent v. Dulles, 357 U.S. 116.

368

Genuino vs. De Lima
Section 6. The liberty of abode and of changing the

shall the right to travel be impaired except in the interest of
national security, public safety or public health, as maybe
provided by law.

Liberty under the foregoing clause includes the right to
choose one’s residence, to leave it whenever he pleases and
to travel wherever he wills.76 Thus, in Zacarias
Villavicencio v. Justo Lucban,77 the Court held illegal the
action of the Mayor of Manila in expelling women who were
known prostitutes and sending them to Davao in order to
eradicate vices and immoral activities proliferated by the
said subjects. It was held that regardless of the mayor’s
laudable intentions, no person may compel another to
change his residence without being expressly authorized by
law or regulation.
It is apparent, however, that the right to travel is not
absolute. There are constitutional, statutory and inherent
limitations regulating the right to travel. Section 6 itself
provides that the right to travel may be impaired only in
the interest of national security, public safety or public
health, as may be provided by law. In Silverio v. Court of
Appeals,78 the Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be

interpreted to mean that while the liberty of travel may be
impaired even without Court Order, the appropriate executive
officers or administrative authorities are not armed with arbitrary
discretion to impose limitations. They can impose limits only on
the basis of “national security, public safety, or public
health” and “as may be provided by law,” a limitive phrase
which did not appear in the 1973 text (The Constitution,
_______________
76 Cruz, Isagani A., Constitutional Law, p. 168, 2000 Edition.

77 39 Phil. 778, 812 (1919).
78 273 Phil. 128, 135; 195 SCRA 760, 762 (1991).

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Genuino vs. De Lima
Bernas, Joaquin G., S.J., Vol. I, First Edition, 1987,

p. 263). Apparently, the phraseology in the 1987
Constitution was a reaction to the ban on international
travel imposed under the previous regime when there was a
Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested
party.79 (Emphasis ours)
Clearly, under the provision, there are only three

considerations that may permit a restriction on the right to
travel: national security, public safety or public health. As
a further requirement, there must be an explicit provision
of statutory law or the Rules of Court80 providing for the
impairment. The requirement for a legislative enactment
was purposely added to prevent inordinate restraints on
the person’s right to travel by administrative officials who
may be tempted to wield authority under the guise of
national security, public safety or public health. This is in
keeping with the principle that ours is a government of
laws and not of men and also with the canon that
provisions of law limiting the enjoyment of liberty should
be construed against the government and in favor of the
individual.81
The necessity of a law before a curtailment in the
freedom of movement may be permitted is apparent in the
deliberations of the members of the Constitutional
Commission. In particular, Fr. Joaquin Bernas, in his
sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the

annotated provisions, it says that the phrase “and changing
the same” is taken from the 1935 version; that is, changing
the abode. The addition of the phrase WITHIN THE
LIMITS PRESCRIBED BY LAW ensures that,
_______________
79 Id., at pp. 133-134; p. 765.

80 Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of
the Philippines: A Commentary, pp. 367-368, 2003 Edition.
81 Cruz, Isagani A., Constitutional Law, p. 172, 2000 Edition.

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Genuino vs. De Lima
whether the rights be impaired on order of a court or without the

order of a court, the impairment must be in accordance with the
prescriptions of law; that is, it is not left to the discretion of any
public officer.82
It is well to remember that under the 1973 Constitution,

the right to travel is compounded with the liberty of abode
in Section 5 thereof, which reads:
Section 5, 1973 Constitution: The liberty of abode and

of travel shall not, be impaired except upon lawful order of
the court, or when necessary in the interest of national
security, public safety, or public health. (Emphasis ours)

The provision, however, proved inadequate to afford
protection to ordinary citizens who were subjected to
“hamletting” under the Marcos regime.83 Realizing the
loophole in the provision, the members of the
Constitutional Commission agreed that a safeguard must
be incorporated in the provision in order to avoid this
unwanted consequence. Thus, the Commission
meticulously framed the subject provision in such a
manner that the right cannot be subjected to the whims of
any administrative officer. In addressing the loophole, they
found that requiring the authority of a law most viable in
preventing unnecessary intrusion in the freedom of
movement, viz.:
MR. NOLLEDO. x x x x
My next question is with respect to Section 5, lines 8 to
12 of page 2. It says here that the liberty of abode shall not
be impaired except upon lawful order of the court or —
underscoring the word “or” — when necessary in the
interest of national security, public safety or public health.
So, in the first part, there is the word “court”; in
_______________
82 Records of the Constitutional Commission, Volume I, p. 674.

83 Id., at p. 715.

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the second part, it seems that the question rises as to who

determines whether it is in the interest of national security, public
safety, or public health. May it be determined merely by
administrative authorities?
FR. BERNAS. The understanding we have of this is that,
yes, it may be determined by administrative authorities
provided that they act, according to line 9, within the
limits prescribed by law. For instance when this thing
came up; what was in mind were passport officers. If they
want to deny a passport on the first instance, do they have
to go to court? The position is, they may deny a passport
provided that the denial is based on the limits prescribed by
law. The phrase “within the limits prescribed by law” is
something which is added here. That did not exist in the old
provision.84
During the discussions, however, the Commission

realized the necessity of separating the concept of liberty of
abode and the right to travel in order to avoid untoward
results. Ultimately, distinct safeguards were laid down
which will protect the liberty of abode and the right to
travel separately, viz.:

MR. TADEO. Mr. Presiding Officer, anterior amendment
on Section 5, page 2, line 11. Iminumungkahi kong
alisin iyong mga salitang nagmumula sa “or” upang
maiwasan natin ang walang pakundangang paglabag
sa liberty of abode sa ngalan ng national security at
pagsasagawa ng “hamletting” ng kung sinu-sino na
lamang. Kapag inalis ito, maisasagawa lamang
ang “hamletting” upon lawful order of the court. x x x.
x x x x
MR. RODRIGO. Aside from that, this includes the right
to travel?
FR. BERNAS. Yes.
_______________
84 Id., at p. 677.

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MR. RODRIGO. And there are cases when passports
may not be granted or passports already granted may
be cancelled. If the amendment is approved, then
passports may not be cancelled unless it is ordered by
the court. Is that the intention? x x x x
FR. BERNAS. Yes.
MR. RODRIGO. But another right is involved here and
that is to travel.

SUSPENSION OF SESSION

FR. BERNAS. Mr. Presiding Officer, may I request a
suspension so that we can separate the liberty of
abode and or changing the same from the right to
travel, because they may necessitate different
provisions.
THE PRESIDING OFFICER (Mr. Bengzon). The session
is suspended.
xxxx

RESUMPTION OF SESSION

xxxx
THE PRESIDING OFFICER (Mr. Bengzon). The session
is resumed. Commissioner Bernas is recognized.
FR. BERNAS. The proposal is amended to read:
“The liberty of abode and of changing the same within
the limits prescribed by law, shall not be impaired
except upon lawful order of the court. NEITHER
SHALL THE RIGHT TO TRAVEL BE IMPAIRED
EXCEPT IN THE INTEREST OF NATIONAL
SECURITY, PUBLIC SAFETY, OR PUBLIC
HEALTH AS MAYBE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon). The
Committee has accepted the amendment, as
amended. Is there any objection? (Silence) The Chair
hears none; the amendment, as amended, is

approved.85
_______________
85 Id., at pp. 764-765.

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It is clear from the foregoing that the liberty of abode
may only be impaired by a lawful order of the court and, on
the one hand, the right to travel may only be impaired by a
law that concerns national security, public safety or public
health. Therefore, when the exigencies of times call for a
limitation on the right to travel, the Congress must
respond to the need by explicitly providing for the
restriction in a law. This is in deference to the primacy of
the right to travel, being a constitutionally protected right
and not simply a statutory right, that it can only be
curtailed by a legislative enactment.
Thus, in Philippine Association of Service Exporters, Inc.
v. Hon. Franklin M. Drilon,86 the Court upheld the validity
of the Department Order No. 1, Series of 1988, issued by
the Department of Labor and Employment, which
temporarily suspended the deployment of domestic and
household workers abroad. The measure was taken in
response to escalating number of female workers abroad
who were subjected to exploitative working conditions, with
some even reported physical and personal abuse. The Court
held that Department Order No. 1 is a valid
implementation of the Labor Code, particularly, the policy
to “afford protection to labor.” Public safety considerations
justified the restraint on the right to travel.
Further, in Leave Division, Office of the Administrative
Services (OAS)-Office of the Court Administrator (OCA) v.
Wilma Salvacion P. Heusdens,87 the Court enumerated the
statutes which specifically provide for the impairment of
the right to travel, viz.:
Some of these statutory limitations [to the right to travel] are the
following:
1] The Human Security Act of 2010 or [R.A.] No. 9372. The

law restricts the right to travel of an individual
_______________
86 Supra note 71 at p. 405; pp. 394-396.

87 678 Phil. 328; 662 SCRA 126 (2011).

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Genuino vs. De Lima
charged with the crime of terrorism even though such person is

out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239.
Pursuant to said law, the Secretary of Foreign Affairs or his
authorized consular officer may refuse the issuance of,
restrict the use of, or withdraw, a passport of a Filipino
citizen.
3] The “Anti-Trafficking in Persons Act of 2003” or R.A.
No. 9208. Pursuant to the provisions thereof, the [BI], in
order to manage migration and curb trafficking in persons,
issued Memorandum Order Radir No. 2011-011, allowing
its Travel Control and Enforcement Unit to “offload
passengers with fraudulent travel documents, doubtful
purpose of travel, including possible victims of human
trafficking” from our ports.
4] The Migrant Workers and Overseas Filipinos Act of
1995 or R. A. No. 8042, as amended by R.A. No. 10022. In
enforcement of said law, the Philippine Overseas
Employment Administration (POEA) may refuse to issue
deployment permit to a specific country that effectively
prevents our migrant workers to enter such country.
5] The Act on Violence against Women and Children or
R.A. No. 9262. The law restricts movement of an individual
against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043.
Pursuant thereto, the Inter-Country Adoption Board may
issue rules restrictive of an adoptee’s right to travel “to
protect the Filipino child from abuse, exploitation,
trafficking and/or sale or any other practice in connection
with adoption which is harmful, detrimental, or prejudicial

to the child.”88

In any case, when there is a dilemma between an
individual claiming the exercise of a constitutional
right vis-à-vis the state’s assertion of authority to restrict
the same, any doubt
_______________
88 Id., at pp. 339-340; pp. 134-135.

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must, at all times, be resolved in favor of the free exercise
of the right, absent any explicit provision of law to the
contrary.

The issuance of DOJ
Circular No. 41 has
no legal basis

Guided by the foregoing disquisition, the Court is in
quandary of identifying the authority from which the DOJ
believed its power to restrain the right to travel emanates.
To begin with, there is no law particularly providing for the
authority of the secretary of justice to curtail the exercise of
the right to travel, in the interest of national security,
public safety or public health. As it is, the only ground of
the former DOJ Secretary in restraining the petitioners, at
that time, was the pendency of the preliminary
investigation of the Joint DOJ-COMELEC Preliminary
Investigation Committee on the complaint for electoral
sabotage against them.89
To be clear, DOJ Circular No. 41 is not a law. It is not a
legislative enactment which underwent the scrutiny and
concurrence of lawmakers, and submitted to the President
for approval. It is a mere administrative issuance
apparently designed to carry out the provisions of an
enabling law which the former DOJ Secretary believed to
be Executive Order (E.O.) No. 292, otherwise known as the

“Administrative Code of 1987.” She opined that DOJ
Circular No. 41 was validly issued pursuant to the agency’s
rulemaking powers provided in Sections 1 and 3, Book IV,
Title III, Chapter 1 of E.O. No. 292 and Section 50, Chapter
11, Book IV of the mentioned Code.
Indeed, administrative agencies possess quasi-
legislative or rulemaking powers, among others. It is the
“power to make rules and regulations which results in
delegated legislation that is within the confines of the
granting statute and the
_______________

376

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doctrine of non-delegability and separability of powers.”90 In the
exercise of this power, the rules and regulations that
administrative agencies promulgate should be within the scope of
the statutory authority granted by the legislature to the
administrative agency. It is required that the regulation be
germane to the objects and purposes of the law, and be not in
contradiction to, but in conformity with, the standards prescribed
by law. They must conform to and be consistent with the
provisions of the enabling statute in order for such rule or
regulation to be valid.91
It is, however, important to stress that before there can even
be a valid administrative issuance, there must first be a showing
that the delegation of legislative power is itself valid. It is valid
only if there is a law that (a) is complete in itself, setting forth
therein the policy to be executed, carried out, or implemented by
the delegate; and (b) fixes a standard — the limits of which are
sufficiently determinate and determinable to which the delegate
must conform in the performance of his functions.92
A painstaking examination of the provisions being relied
upon by the former DOJ Secretary will disclose that they
do not particularly vest the DOJ the authority to issue DOJ
Circular No. 41 which effectively restricts the right to
travel through the issuance of WLOs and HDOs. Sections 1

and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
Section 1. Declaration of Policy.—It is the declared

policy of the State to provide the government with a
principal law agency which shall be both its legal coun-
_______________
90 Holy Spirit Homeowners Association, Inc. v. Defensor, 529 Phil. 573,

585; 497 SCRA 581, 593 (2006).
91 SMART Communications, Inc. (SMART) v. National
Telecommunications Commission (NTC), 456 Phil. 145, 156; 408 SCRA
678, 686-687 (2003).
92 Dagan v. Philippine Racing Commission, 598 Phil. 406, 417; 578
SCRA 585, 594-595 (2009).

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sel and prosecution arm; administer the criminal justice

system in accordance with the accepted processes thereof
consisting in the investigation of the crimes, prosecution of
offenders and administration of the correctional system;
implement the laws on the admission and stay of aliens,
citizenship, land titling system, and settlement of land problems
involving small landowners and member of indigenous cultural
minorities; and provide free legal services to indigent members of
the society.
xxxx
Section 3. Powers and Functions.—To accomplish
its mandate, the Department shall have the following
powers and functions:
(1) Act as principal law agency of the government
and as legal counsel and representative thereof,
whenever so required;
(2) Investigate the commission of crimes, prosecute
offenders and administer the probation and
correction system;
xxxx
(6) Provide immigration and naturalization

regulatory services and implement the laws
governing citizenship and the admission and
stay of aliens;
(7) Provide legal services to the national
government and its functionaries, including
government-owned and -controlled corporations
and their subsidiaries;
(8) Such other functions as may be provided by law.
(Emphasis supplied)

A plain reading of the foregoing provisions shows that
they are mere general provisions designed to lay down the
purposes of the enactment and the broad enumeration of
the powers and functions of the DOJ. In no way can they be
interpreted as a grant of power to curtail a fundamental
right

378

Genuino vs. De Lima

as the language of the provision itself does not lend to that
stretched construction. To be specific, Section 1 is simply a
declaration of policy, the essence of the law, which provides
for the statement of the guiding principle, the purpose and
the necessity for the enactment. The declaration of policy is
most useful in statutory construction as an aid in the
interpretation of the meaning of the substantive provisions
of the law. It is preliminary to the substantive portions of
the law and certainly not the part in which the more
significant and particular mandates are contained. The
suggestion of the former DOJ Secretary that the basis of
the issuance of DOJ Circular No. 41 is contained in the
declaration of policy of E.O. No. 292 not only defeats logic
but also the basic style of drafting a decent piece of
legislation because it supposes that the authors of the law
included the operative and substantive provisions in the
declaration of policy when its objective is merely to
introduce and highlight the purpose of the law.
Succinctly, “a declaration of policy contained in a statute
is, like a preamble, not a part of the substantive portions of
the act. Such provisions are available for clarification of
ambiguous substantive portions of the act, but may not be

used to create ambiguity in other substantive provisions.”93
In the same way, Section 3 does not authorize the DOJ
to issue WLOs and HDOs to restrict the constitutional
right to travel. There is even no mention of the exigencies
stated in the Constitution that will justify the impairment.
The provision simply grants the DOJ the power to
investigate the commission of crimes and prosecute
offenders, which are basically the functions of the agency.
However, it does not carry with it the power to
indiscriminately devise all means it deems proper in
performing its functions without regard to constitutionally
protected rights. The curtailment of a funda-
_______________
93 100 Lake, LLC v. Novak, 2012 IL App (2d) 110708, 971 N.E.2d
1195, 2012 Ill App. LEXIS 506, 361 Ill. Dec. 673, 2012 WL 2371249 (Ill.
App. Ct. 2d Dist. 2012).

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mental right, which is what DOJ Circular No. 41 does,
cannot be read into the mentioned provision of the law. Any
impairment or restriction in the exercise of a constitutional
right must be clear, categorical and unambiguous. For the
rule is that:
Constitutional and statutory provisions control with

respect to what rules and regulations may be promulgated
by an administrative body, as well as with respect to what
fields are subject to regulation by it. It may not make rules
and regulations which are inconsistent with the provisions
of the Constitution or a statute, particularly the statute it is
administering or which created it, or which are in
derogation of, or defeat, the purpose of a statute.94
The DOJ cannot also rely on Section 50, Chapter 11,

Book IV of E.O. No. 292, which simply provides for the
types of issuances that administrative agencies, in general,
may issue. It does not speak of any authority or power but
rather a mere clarification on the nature of the issuances
that may be issued by a secretary or head of agency. The

innocuous provision reads as follows:
Section 50. General Classification of Issuances.—The

administrative issuances of Secretaries and heads of
bureaus, offices and agencies shall be in the form of
circulars or orders.
(1) Circulars shall refer to issuance prescribing policies,
rules and regulations, and procedures promulgated
pursuant to law, applicable to individuals and organizations
outside the Government and designed to supplement
provisions of the law or to provide means for carrying them
out, including information relating thereto; and
(2) Orders shall refer to issuances directed to particular
offices, officials, or employees, concerning specific
_______________
94 Supra note 91.

380

Genuino vs. De Lima
matters including assignments, detail and transfer of personnel,

for observance or compliance by all concerned. (Emphasis Ours)

In the same manner, Section 7, Chapter 2, Title III,
Book IV of E.O. 292 cited in the memorandum of the former
DOJ Secretary cannot justify the restriction on the right to
travel in DOJ Circular No. 41. The memorandum
particularly made reference to Subsections 3, 4 and 9 which
state:

Section 7. Powers and Functions of the Secretary.—
The Secretary shall:
(1) Advise the President in issuing executive
orders, regulations, proclamations and other
issuances, the promulgation of which is
expressly vested by law in the President relative
to matters under the jurisdiction of the
Department;
(2) Establish the policies and standards for the

operation of the Department pursuant to the
approved programs of governments;
(3) Promulgate rules and regulations necessary to
carry out department objectives, policies,
functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary
for the efficient administration of the offices
under the Secretary and for proper execution of
the laws relative thereto. These issuances shall
not prescribe penalties for their violation, except
when expressly authorized by law;
xxxx
(9) Perform such other functions as may be
provided by law. (Emphasis Ours)

It is indisputable that the secretaries of government
agencies have the power to promulgate rules and
regulations that will aid in the performance of their
functions. This is adjunct to the power of administrative
agencies to execute laws and

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does not require the authority of a law. This is, however,
different from the delegated legislative power to
promulgate rules of government agencies.
The considered opinion of Mr. Justice Carpio in Abakada
Guro Party List (formerly AASJS), et al. v. Hon. Purisima
et al.,95 is illuminating:
The inherent power of the Executive to adopt rules and

regulations to execute or implement the law is different
from the delegated legislative power to prescribe rules. The
inherent power of the Executive to adopt rules to execute
the law does not require any legislative standards for its
exercise while the delegated legislative power requires
sufficient legislative standards for its exercise.
xxxx
Whether the rulemaking power by the Executive is a
delegated legislative power or an inherent Executive power
depends on the nature of the rulemaking power involved. If
the rulemaking power is inherently a legislative power,

such as the power to fix tariff rates, the rulemaking power
of the Executive is a delegated legislative power. In such
event, the delegated power can be exercised only if
sufficient standards are prescribed in the law delegating the
power.
If the rules are issued by the President in
implementation or execution of self-executory constitutional
powers vested in the President, the rulemaking power of the
President is not a delegated legislative power. x x x. The
rule is that the President can execute the law without any
delegation of power from the legislature. Otherwise, the
President becomes a mere figure-head and not the sole
Executive of the Government.96
_______________
95 584 Phil. 246; 562 SCRA 251 (2008) (Carpio, J., Separate
Concurring Opinion).
96 Id., at pp. 296-297; pp. 303-304.

382

Genuino vs. De Lima

The questioned circular does not come under the
inherent power of the executive department to adopt rules
and regulations as clearly the issuance of HDO and WLO is
not the DOJ’s business. As such, it is a compulsory
requirement that there be an existing law, complete and
sufficient in itself, conferring the expressed authority to the
concerned agency to promulgate rules. On its own, the DOJ
cannot make rules, its authority being confined to
execution of laws. This is the import of the terms “when
expressly provided by law” or “as may be provided by law”
stated in Sections 7(4) and 7(9), Chapter 2, Title III, Book
IV of E.O. 292. The DOJ is confined to filling in the gaps
and the necessary details in carrying into effect the law as
enacted.97 Without a clear mandate of an existing law, an
administrative issuance is ultra vires.
Consistent with the foregoing, there must be an
enabling law from which DOJ Circular No. 41 must derive
its life. Unfortunately, all of the supposed statutory
authorities relied upon by the DOJ did not pass the

completeness test and sufficient standard test. The DOJ
miserably failed to establish the existence of the enabling
law that will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the
department in realizing its mandate only begs the
question. The purpose, no matter how commendable, will
not obliterate the lack of authority of the DOJ to issue the
said issuance. Surely, the DOJ must have the best
intentions in promulgating DOJ Circular No. 41, but the
end will not justify the means. To sacrifice individual
liberties because of a perceived good is disastrous to
democracy. In Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform,98 the
Court emphasized:
_______________
97 Manila Electric Company (MERALCO) v. Chua, 637 Phil. 80, 98;

623 SCRA 81, 95-96 (2010).
98 256 Phil. 777; 175 SCRA 343 (1989).

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One of the basic principles of the democratic system is

that where the rights of the individual are concerned, the
end does not justify the means. It is not enough that there
be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution.
Mere expediency will not excuse constitutional shortcuts.
There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a
few notable exceptions, will excuse the bypassing of an
individual’s rights. It is no exaggeration to say that a person
invoking a right guaranteed under Article III of the
Constitution is a majority of one even as against the rest of
the nation who would deny him that right.99
The DOJ would however insist that the resulting

infringement of liberty is merely incidental, together with
the consequent inconvenience, hardship or loss to the
person being subjected to the restriction and that the

ultimate objective is to preserve the investigative powers of
the DOJ and public order.100 It posits that the issuance
ensures the presence within the country of the respondents
during the preliminary investigation.101 Be that as it may,
no objective will ever suffice to legitimize desecration of a
fundamental right. To relegate the intrusion as negligible
in view of the supposed gains is to undermine the
inviolable nature of the protection that the Constitution
affords.
Indeed, the DOJ has the power to investigate the commission
of crimes and prosecute offenders. Its zealousness in pursuing its
mandate is laudable but more admirable when tempered by
fairness and justice. It must constantly be reminded that in the
hierarchy of rights, the Bill of Rights takes precedence over the
right of the State to prosecute, and when weighed against each
other, the scales of justice tilt towards
_______________
99 Id., at p. 809; pp. 375-376.

101 Id., at p. 939.

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Genuino vs. De Lima

the former.102 Thus, in Allado v. Diokno,103 the Court
declared, viz.:
The sovereign power has the inherent right to protect

itself and its people from vicious acts which endanger the
proper administration of justice; hence, the State has every
right to prosecute and punish violators of the law. This is
essential for its self-preservation, nay, its very existence.
But this does not confer a license for pointless assaults on
its citizens. The right of the State to prosecute is not a carte
blanche for government agents to defy and disregard the
rights of its citizens under the Constitution.104
The DOJ stresses the necessity of the restraint imposed

in DOJ Circular No. 41 in that to allow the petitioners, who
are under preliminary investigation, to exercise an
untrammelled right to travel, especially when the risk of

flight is distinctly high will surely impede the efficient and
effective operation of the justice system. The absence of the
petitioners, it asseverates, would mean that the farthest
criminal proceeding they could go would be the filing of the
criminal information since they cannot be arraigned in
absentia.105
The predicament of the DOJ is understandable yet
untenable for relying on grounds other what is permitted
within the confines of its own power and the nature of
preliminary investigation itself. The Court, in Paderanga v.
Drilon,106 made a clarification on the nature of a
preliminary investigation, thus:
_______________
102 Allado v. Diokno, 302 Phil. 213, 238; 232 SCRA 192, 209-210
(1994).
103 Id.
104 Id., at p. 238; p. 209.
106 273 Phil. 290; 196 SCRA 86 (1991).

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A preliminary investigation is x x x an inquiry or

proceeding for the purpose of determining whether there is
sufficient ground to engender a well founded belief that a
crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty
thereof, and should be held for trial. x x x A preliminary
investigation is not the occasion for the full and exhaustive
display of the parties’ evidence; it is for the presentation of
such evidence only as may engender a well grounded belief
that an offense has been committed and that the accused is
probably guilty thereof.107
It bears emphasizing that the conduct of a preliminary

investigation is an implement of due process which
essentially benefits the accused as it accords an
opportunity for the presentation of his side with regard to
the accusation.108 The accused may, however, opt to waive

his presence in the preliminary investigation. In any case,
whether the accused responds to a subpoena, the
investigating prosecutor shall resolve the complaint within
10 days after the filing of the same.
The point is that in the conduct of a preliminary investigation,
the presence of the accused is not necessary for the prosecutor to
own lookout. Ultimately, he shall be bound by the determination
of the prosecutor on the presence of probable cause and he cannot
claim denial of due process.
The DOJ therefore cannot justify the restraint in the
liberty of movement imposed by DOJ Circular No. 41 on
the ground that it is necessary to ensure presence and
attendance in the preliminary investigation of the
complaints. There is also no authority of law granting it the
power to compel the
_______________
107 Id., at p. 299; pp. 92-93.

108 Ocampo v. Abando, 726 Phil. 441, 459; 715 SCRA 673, 695 (2014).

386

Genuino vs. De Lima

attendance of the subjects of a preliminary investigation,
pursuant to its investigatory powers under E.O. No. 292. Its
investigatory power is simply inquisitorial and, unfortunately, not
broad enough to embrace the imposition of restraint on the liberty
of movement.
That there is a risk of flight does not authorize the DOJ
to take the situation upon itself and draft an
administrative issuance to keep the individual within the
Philippine jurisdiction so that he may not be able to evade
criminal prosecution and consequent liability. It is an
arrogation of power it does not have; it is a usurpation of
function that properly belongs to the legislature.
Without a law to justify its action, the issuance of DOJ
Circular No. 41 is an unauthorized act of the DOJ of
empowering itself under the pretext of dire exigency or
urgent necessity. This action runs afoul the separation of

powers between the three branches of the government and
cannot be upheld. Even the Supreme Court, in the exercise
of its power to promulgate rules is limited in that the same
shall not diminish, increase, or modify substantive
rights.109 This should have cautioned the DOJ, which is
only one of the many agencies of the executive branch, to be
more scrutinizing in its actions especially when they affect
substantive rights, like the right to travel.
The DOJ attempts to persuade this Court by citing cases
wherein the restrictions on the right to travel were found
reasonable, i.e., New York v. O’Neill,110 Kwong v.
Presidential Commission on Good
Government111 and PASEI.
It should be clear at this point that the DOJ cannot rely
on PASEI to support its position for the reasons stated earlier in
this disquisition. In the same manner, Kant Kwong is not an
appropriate authority since the Court never ruled on the
constitutionality of the authority of the PCGG to issue HDOs
_______________
109 1987 CONSTITUTION, Article VIII, Section 5(5).

110 359 U.S. 1 (1959).
111 240 Phil. 219; 156 SCRA 222 (1987).

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in the said case. On the contrary, there was an implied
recognition of the validity of the PCGG’s Rules and
Regulations as the petitioners therein even referred to its
provisions to challenge the PCGG’s refusal to lift the HDOs
issued against them despite the lapse of the period of its
effectivity. The petitioners never raised any issue as to the
constitutionality of Section 2 of the PCGG Rules and
Regulations but only questioned the agency’s
nonobservance of the rules particularly on the lifting of
HDOs. This is strikingly different from the instant case
where the main issue is the constitutionality of the
authority of the DOJ Secretary to issue HDOs under DOJ
Circular No. 41.
Similarly, the pronouncement is New York does not lend

support to the respondents’ case. In the said case, the
respondent therein questioned the constitutionality of a
Florida statute entitled “Uniform Law to Secure the
Attendance of Witnesses from Within or Without a State in
Criminal Proceedings,” under which authority a judge of
the Court of General Sessions, New York County requested
the Circuit Court of Dade County, Florida, where he was at
that time, that he be given into the custody of New York
authorities and be transported to New York to testify in a
grand jury proceeding. The US Supreme Court upheld the
constitutionality of the law, ruling that every citizen, when
properly summoned, has the obligation to give testimony
and the same will not amount to violation of the freedom to
travel but, at most, a mere temporary interference. The
clear deviation of the instant case from New York is that in
the latter case there is a law specifically enacted to require
the attendance of the respondent to court proceedings to
give his testimony, whenever it is needed. Also, after the
respondent fulfils his obligation to give testimony, he is
absolutely free to return in the state where he was found or
to his state of residence, at the expense of the requesting
state. In contrast, DOJ Circular No. 41 does not have an
enabling law where it could have derived its authority to
interfere with the exercise of the right to travel. Further,
the respondent is subjected to continuing restraint in his

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right to travel as he is not allowed to go until he is given, if
he will ever be given, an ADO by the secretary of justice.

The DOJ cannot issue DOJ
Circular No. 41 under the
guise of police power

The DOJ’s reliance on the police power of the state
cannot also be countenanced. Police power pertains to the
“state authority to enact legislation that may interfere with
personal liberty or property in order to promote the general
welfare.”112 “It may be said to be that inherent and plenary
power in the State which enables it to prohibit all things
hurtful to the comfort, safety, and welfare of society.”113

Verily, the exercise of this power is primarily lodged with
the legislature but may be wielded by the President and
administrative boards, as well as the lawmaking bodies on
all municipal levels, including the barangay, by virtue of a
valid delegation of power.114
It bears noting, however, that police power may only be
validly exercised if (a) the interests of the public generally,
as distinguished from those of a particular class, require
the interference of the State, and (b) the means employed
are reasonably necessary to the attainment of the object
sought to be accomplished and not unduly oppressive upon
individuals.115
On its own, the DOJ cannot wield police power since the
authority pertains to Congress. Even if it claims to be
exercising the same as the alter ego of the President, it
must first establish the presence of a definite legislative
enactment evidencing the delegation of power from its
principal. This,
_______________
112 Supra note 71 at p. 398; p. 390.

113 Id., at p. 399; p. 391.
114 Executive Secretary v. Southwing Heavy Industries, Inc., 518 Phil.
103, 117; 482 SCRA 673, 685-686 (2006).
115 Department of Education, Culture and Sports v. San Diego, 259
Phil. 1016, 1021; 180 SCRA 533, 537 (1989).

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the DOJ failed to do. There is likewise no showing that the
curtailment of the right to travel imposed by DOJ Circular
No. 41 was reasonably necessary in order for it to perform
its investigatory duties.
In any case, the exercise of police power, to be valid,
must be reasonable and not repugnant to the
Constitution.116 It must never be utilized to espouse actions
that violate the Constitution. Any act, however noble its
intentions, is void if it violates the Constitution.117 In the
clear language of the Constitution, it is only in the interest
of national security, public safety and public health that

the right to travel may be impaired. None one of the
mentioned circumstances was invoked by the DOJ as its
premise for the promulgation of DOJ Circular No. 41.

DOJ Circular No. 41
transcends constitu-
tional limitations

Apart from lack of legal basis, DOJ Circular No. 41 also
suffers from other serious infirmities that render it invalid.
The apparent vagueness of the circular as to the distinction
between an HDO and WLO is violative of the due process
clause. An act that is vague “violates due process for failure
to accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid and leaves law enforcers
unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government
muscle.”118 Here, the distinction is significant as it will
inform the respondents of the grounds, effects and the
measures they may take to contest the issuance against
them. Verily, there must be a standard
_______________
116 Metropolitan Manila Development Authority v. Viron

Transportation Co., Inc., 557 Phil. 121, 140; 530 SCRA 341, 362 (2007).
117 Supra note 70 at p. 406; p. 39.
118 Imbong v. Ochoa, Jr., 732 Phil. 1, 108-109; 721 SCRA 146, 357
(2014).

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Genuino vs. De Lima

by which an HDO or WLO may be issued, particularly against those
whose cases are still under preliminary investigation, since at that stage
there is yet no criminal information against them which could have
warranted the restraint.
Further, a reading of the introductory provisions of DOJ
Circular No. 41 shows that it emanates from the DOJ’s
assumption of powers that is not actually conferred to it. In
one of the whereas clauses of the issuance, it was stated,

thus:
WHEREAS, while several Supreme Court circulars, issued

through the Office of the Court Administrator, clearly state
that “[HDO] shall be issued only in criminal cases within
the exclusive jurisdiction of the [RTCs],” said circulars are,
however, silent with respect to cases falling within the
jurisdiction of courts below the RTC as well as those
pending determination by government prosecution offices.

Apparently, the DOJ’s predicament which led to the
issuance of DOJ Circular No. 41 was the supposed
inadequacy of the issuances of this Court pertaining to
HDOs, the more pertinent of which is SC Circular No. 39-
97.119 It is the DOJ’s impression that with the silence of the
circular with regard to the issuance of HDOs in cases
falling within the jurisdiction of the MTC and those still
pending investigation, it can take the initiative in filling in
the deficiency. It is doubtful, however, that the DOJ
Secretary may undertake such action since the issuance of
HDOs is an exercise of this Court’s inherent power “to
preserve and to maintain the effectiveness of its
jurisdiction over the case and the person of the accused.”120
It is an exercise of judicial power which belongs to the
Court alone, and which the DOJ, even as the principal law
agency of the government, does not have the authority to
wield.
_______________
119 Guidelines in the Issuance of Hold Departure Orders.

120 Santiago v. Vasquez, 291 Phil. 664, 680; 217 SCRA 633, 649
(1993).

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Moreover, the silence of the circular on the matters
which are being addressed by DOJ Circular No. 41 is not
without good reasons. Circular No. 39-97 was specifically
issued to avoid indiscriminate issuance of HDOs resulting
to the inconvenience of the parties affected as the same

could amount to an infringement on the right and liberty of
an individual to travel. Contrary to the understanding of
the DOJ, the Court intentionally held that the issuance of
HDOs shall pertain only to criminal cases within the
exclusive jurisdiction of the RTC, to the exclusion of
criminal cases falling within the jurisdiction of the MTC
and all other cases. The intention was made clear with the
use of the term “only.” The reason lies in seeking
equilibrium between the state’s interest over the
prosecution of the case considering the gravity of the
offense involved and the individual’s exercise of his right to
travel. Thus, the circular permits the intrusion on the right
to travel only when the criminal case filed against the
individual is within the exclusive jurisdiction of the RTC,
or those that pertains to more serious crimes or offenses
that are punishable with imprisonment of more than six
years. The exclusion of criminal cases within the
jurisdiction of the MTC is justified by the fact that they
pertain to less serious offenses which is not commensurate
with the curtailment of a fundamental right. Much less is
the reason to impose restraint on the right to travel of
respondents of criminal cases still pending investigation
since at that stage no information has yet been filed in
court against them. It is for these reasons that Circular No.
39-97 mandated that FIDO may only be issued in criminal
cases filed with the RTC and withheld the same power
from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary
went overboard by assuming powers which have been
withheld from the lower courts in Circular No. 39-97. In
the questioned circular, the DOJ Secretary may issue HDO
against the accused in criminal cases within the
jurisdiction of the

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Genuino vs. De Lima

MTC121 and against defendants, respondents and witnesses
in labor or administrative cases,122 no matter how
unwilling they may be. He may also issue WLO against
accused in criminal cases pending before the RTC,123
therefore making himself in equal footing with the RTC,
which is authorized by law to issue HDO in the same

instance. The DOJ Secretary may likewise issue WLO
against respondents in criminal cases pending preliminary
investigation, petition for review or motion for
reconsideration before the DOJ.124 More striking is the
authority of the DOJ Secretary to issue an HDO or WLO
motu proprio, even in the absence of the grounds stated in
the issuance if he deems necessary in the interest of
national security, public safety or public health.125
It bears noting as well that the effect of the HDO and
WLO in DOJ Circular No. 41 is too obtrusive as it remains
effective even after the lapse of its validity period as long
as the DOJ Secretary does not approve the lifting or
cancellation of the same. Thus, the respondent continually
suffers the restraint in his mobility as he awaits a
favorable indorsement of the government agency that
requested for the issuance of the HDO or WLO and the
affirmation of the DOJ Secretary even as the HDO or WLO
against him had become functus officio with its expiration.
It did not also escape the attention of the Court that the
DOJ Secretary has authorized himself to permit a person
subject of HDO or WLO to travel through the issuance of
an ADO upon showing of “exceptional reasons” to grant the
same. The grant, however, is entirely dependent on the sole
discretion of the DOJ Secretary based on his assessment of
the grounds stated in the application.
_______________
121 Section 1(a). DOJ Circular No. 41.

122 Section 1(b). id.
123 Section 2(a). id.
124 Section 2(b). id.
125 Sections 1(c) and 2(c), id.

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The constitutional violations of DOJ Circular No. 41 are
too gross to brush aside particularly its assumption that
the DOJ Secretary’s determination of the necessity of the
issuance of HDO or WLO can take the place of a law that
authorizes the restraint in the right to travel only in the

interest of national security, public safety or public health.
The DOJ Secretary has recognized himself as the sole
authority in the issuance and cancellation of HDO or WLO
and in the determination of the sufficiency of the grounds
for an ADO. The consequence is that the exercise of the
right to travel of persons subject of preliminary
investigation or criminal cases in court is indiscriminately
subjected to the discretion of the DOJ Secretary.
This is precisely the situation that the 1987 Constitution
seeks to avoid — for an executive officer to impose
restriction or exercise discretion that unreasonably impair
an individual’s right to travel — thus, the addition of the
phrase, “as maybe provided by law” in Section 6, Article III
thereof. In Silverio, the Court underscored that this
phraseology in the 1987 Constitution was a reaction to the
ban on international travel imposed under the previous
regime when there was a Travel Processing Center, which
issued certificates of eligibility to travel upon application of
an interested party.126 The qualifying phrase is not a mere
innocuous appendage. It secures the individual the
absolute and free exercise of his right to travel at all times
unless the more paramount considerations of national
security, public safety and public health call for a
temporary interference, but always under the authority of
a law.
_______________
126 Silverio v. Court of Appeals, supra note 78 at pp. 133-134; p. 765.

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Genuino vs. De Lima

The subject WLOs and the
restraint on the right to
travel

In the subject WLOs, the illegal restraint on the right to
travel was subtly incorporated in the wordings thereof. For
better illustration, the said WLOs are hereby reproduced
as follows:

WLO No. ASM-11-237127
(Watch List)

In re: GLORIA M. MACAPAGAL-ARROYO
x ------------------------------------- x

ORDER

On 09 August 2011, Hon. Leila M. De Lima,
Secretary of the Department of Justice issued an
order docketed as Watch List Order No. 2011-422
directing the Bureau of Immigration to include the
name GLORIA M. MACAPAGAL-ARROYO in the
Bureau’s Watch List.
It appears that GLORIA M. MACAPAGAL-
ARROYO is the subject of an investigation by the
Department of Justice in connection with the
following cases:
_______________

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Based on the foregoing and pursuant to

Department of Justice Circular No. 41 (Consolidated
Rules and Regulations Governing the Issuance and
Implementation of Hold Departure Orders, Watch List
Orders, and Allow Departure Orders) dated 25 May
2010, we order the inclusion of the name GLORIA M.
MACAPAGAL-ARROYO in the Watch List.
This watch list shall be valid for sixty (60) days
unless sooner revoked or extended.
The Airport Operation Division and Immigration
Regulation Division Chiefs shall implement this
Order.
Notify the Computer Section.
SO ORDERED.
09 August 2011 (Emphasis ours)

396

Genuino vs. De Lima

__________________________________

Watch List Order No. 2011-422128

In re: Issuance of Watch List

Order against MA. GLORIA M.
MACAPAGAL-ARROYO
x --------------------------------------------- x

AMENDED ORDER

Whereas, Ma. Gloria M. Macapagal-Arroyo is the
subject of an investigation by this Department in
connection with the following cases:

_______________

128 Id., at pp. 47-48.

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Pursuant to Section 2(c) of Department Circular

(D.C.) No. 41 dated May 25, 2010 (Consolidated Rules
and Regulations Governing the Issuance and
Orders, and Allow Departure Orders), the
undersigned hereby motu proprio issues a Watch List
Order against Ma. Gloria M. Macapagal-Arroyo.
Accordingly, the Commissioner of Immigration,
Manila, is hereby ordered to INCLUDE in the Bureau
of Immigration’s Watch List the name of Ma. Gloria
M. Macapagal-Arroyo.
Pursuant to Section 4 of D.C. No. 41, this Order is
valid for a period of sixty (60) days from issuance
unless sooner terminated or extended.
SO ORDERED.
City of Manila, September 6, 2011. (Emphasis
ours)

__________________
Watch List Order (WLO)
No. 2011-573129

IN RE: Issuance of WLO against
BENJAMIN ABALOS, SR., et al.
x ------------------------------------- x
_______________
129 Id., at pp. 49-59.

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Genuino vs. De Lima

ORDER

Pursuant to Section 2(c) of Department Circular
No. 41 dated May 25, 2010 (Consolidated Rules and
Regulations Governing the Issuance and
Orders, and Allow Departure Orders), after careful
evaluation, finds the Application for the Issuance of
WLO against the following meritorious.

xxxx
12. MA. GLORIA M.MACAPAGAL-ARROYO
Address: Room MB-2, House of
Representatives
Quezon City
x x x x

1. MA. GLORIA M. MACAPAGAL-ARROYO

Address: Room MB-2, House of
Representatives
Quezon City
2. JOSE MIGUEL TUASON ARROYO
Address: L.T.A. Bldg. 118 Perea St.
Makati City
xxxx

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Accordingly, the Commissioner of Immigration, Manila,

is hereby ordered to INCLUDE in the Bureau of
Immigration’s Watch List, the names of the above named
persons.
This Order is valid for a period of sixty (60) days from the
date of its issuance unless sooner terminated or otherwise
extended.
SO ORDERED.

On the other hand, HDO No. 2011-64 issued against the
petitioners in G.R. No. 197930 pertinently states:

Hold Departure Order (HDO)
No. 2011-64130

In re: Issuance of HDO against
EFRAIM C. GENUINO, ET AL.
x ------------------------------------- x

ORDER

After a careful evaluation of the application, including
the documents attached thereto, for the issuance of Hold
Departure Order (HDO) against the above named persons
filed pursuant to this Department’s Circular (D.C.) No. 41
(Consolidated Rules and Regulations Governing the
Issuance and Implementation of Hold Departure Orders,
Watch List Orders, and Allow Departure Orders) dated May
25, 2010, we find the application meritorious.
Accordingly, the Commissioner of Immigration, Manila,
is hereby ordered to INCLUDE in the Bureau of
Immigration’s Watch List the names of EFRAIM C.
GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F.
GENUINO, RAFAEL “BUTCH” A. FRANCISCO,
EDWARD “DODIE” F. KING, RENE C. FIGUEROA,
ATTY. CARLOS R. BAUTISTA, JR., EMILIO “BOYET” B.
_______________
130 Rollo (G.R. No. 197930), pp. 30-35.

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Genuino vs. De Lima

MARCELO, RODOLFO SORIANO, JR., AND JOHNNY G.
TAN.

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Pursuant to Section 1 of D.C. No. 41, this Order is valid

for a period of five (5) years unless sooner terminated.
SO ORDERED. (Emphasis ours)

On its face, the language of the foregoing issuances does
not contain an explicit restraint on the right to travel. The
issuances seemed to be a mere directive from to the BI
officials to include the named individuals in the watch
LIST of the agency. Noticeably, however, all of the WLOs
contained a common reference to DOJ Circular No. 41,
where the authority to issue the same apparently
emanates, and from which the restriction on the right to
travel can be traced. Section 5 thereof provides, thus:

Section 5. HDO/WLO Lifting or Cancellation.—In
the lifting or cancellation of the HDO/WLO issued
pursuant to this Circular, the following shall apply:
(a) The HDO may be lifted or cancelled under any of the
following grounds:
1. When the validity period of the HDO as provided
for in the preceding section has already expired;
2. When the accused subject of the HDO has been
allowed to leave the country during the pendency
of the case, or has been acquitted of the charge,
or the case in which the warrant/order of arrest
was issued has been dismissed or the
warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an
administrative agency of the government
wherein the presence of the alien subject of the
HDO/WLO has been dismissed by the court or
by appropriate government agency, or the alien
has been discharged as a witness therein, or the

alien has been allowed to leave the country.

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Genuino vs. De Lima

(b) The WLO may be lifted or cancelled under any of the
following grounds:
1. When the validity period of the WLO as provided
for in the preceding section has already expired;
2. When the accused subject of the WLO has been
allowed by the court to leave the country during
the pendency of the case, or has been acquitted of
the charge; and
3. When the preliminary investigation is
terminated, or when the petition for review, or
motion for reconsideration has been denied
and/or dismissed.
xxxx

That the subject of an HDO or WLO suffers restriction
in the right to travel is implied in the fact that under
Sections 5(a)(2) and 5(b)(2), the concerned individual had to
seek permission to leave the country from the court during
the pendency of the case against him. Further, in 5(b)(3),
he may not leave unless the preliminary investigation of
the case in which he is involved has been terminated.
In the same manner, it is apparent in Section 7 of the
same circular that the subject of an HDO or WLO cannot
leave the country unless he obtains an ADO. The said
section reads as follows:
Section 7. Allow Departure Order (ADO).—Any

person subject of HDO/WLO issued pursuant to this
Circular who intends, for some exceptional reasons,
to leave the country may, upon application under oath
with the Secretary of Justice, be issued an ADO.
The ADO may be issued upon submission of the following
requirements:

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(a) Affidavit stating clearly the purpose, inclusive
period of the date of travel, and containing an
undertaking to immediately report to the DOJ upon
return; and
(b) Authority to travel or travel clearance from the court
or appropriate government office where the case upon which
the issued HDO/WLO was based is pending, or from the
investigating prosecutor in charge of the subject case.

By requiring an ADO before the subject of an HDO or
WLO is allowed to leave the country, the only plausible
conclusion that can be made is that its mere issuance
operates as a restraint on the right to travel. To make it
even more difficult, the individual will need to cite an
exceptional reason to justify the granting of an ADO.
The WLO also does not bear a significant distinction
from an HDO, thereby giving the impression that they are
one and the same or, at the very least, complementary such
that whatever is not covered in Section 1,131 which pertains
to the
131 Section 1. Hold Departure Order.—The Secretary of Justice

may issue an HDO under any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal
cases falling within the jurisdiction of courts below the Regional Trial
Courts (RTCs).
If the case against the accused is pending trial, the application
under oath of an interested party must be supported by (a) a certified true
copy of the complaint or information and (b) a Certification from the
Clerk of Court concerned that criminal case is still pending.
(b) Against the alien whose presence is required either as a
defendant, respondent, or witness in a civil or labor case pending
litigation, or any case before an administrative agency of the government.
The application under oath of an interested party must be
supported by (a) a certified true copy of the subpoena or summons issued
against the alien and (b) a certified true copy complaint in civil, labor or
administrative case where the presence of the alien is required.

404

Genuino vs. De Lima

issuance of HDO, can conveniently fall under Section 2,132
which calls for the issuance of WLO. In any case, there is
an identical provision in DOJ Circular No. 41 which
authorizes the Secretary of Justice to issue an HDO or
WLO against anyone, motu proprio, in the interest of
national security,
_______________
(c) The Secretary of Justice may likewise issue an HDO against
any person, either motu proprio, or upon the request by the Head of a
Department of the Government; the head of a constitutional body or
commission; the Chief Justice of the Supreme Court for the Judiciary; the
Senate President or the House Speaker for the Legislature, when the
adverse party is the Government or any of its agencies or
instrumentalities, or in the interest of national security, public safety or
public health.
132 Section 2. Watch List Order.—The Secretary of Justice may
issue a WLO, under any of the following instances:
(a) Against the accused, irrespective of nationality, in criminal
cases pending trial before the Regional Trial Court.
supported by (a) certified true copy of an Information filed with the court;
(b) a certified true copy of the Prosecutor’s Resolution; and (c) a
Certification from the Clerk of Court concerned that criminal case is still
pending.
(b) Against the respondent, irrespective of nationality, in
criminal cases pending preliminary investigation, petition for review, or
motion for reconsideration before the Department of Justice or any of its
provincial or city prosecution offices.
supported by (a) certified true copy of the complaint filed, and (b) a
Certification from the appropriate prosecution office concerned that the
case is pending preliminary investigation, petition for review, or motion
for reconsideration, as the case may be.
(c) The Secretary of Justice may likewise issue a WLO against
any person, either motu proprio, or upon the request of any government
agency, including commissions, task forces or similar entities created by
the Office of the President, pursuant to the “Anti-Trafficking in Persons
Act of 2003” (R.A. No. 9208) and/or in connection with any investigation
being conducted by it, or in the interest of national security, public safety
or public health.

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public safety or public health. With this all-encompassing

provision, there is nothing that can prevent the Secretary of
Justice to prevent anyone from leaving the country under the
guise of national security, public safety or public health.

The exceptions to the
right to travel are lim-
ited to those stated in
Section 6, Article III of
the Constitution

The DOJ argues that Section 6, Article III of the
Constitution is not an exclusive enumeration of the
instances wherein the right to travel may be validly
impaired.133 It cites that this Court has its own
administrative issuances restricting travel of its employees
and that even lower courts may issue HDO even on
grounds outside of what is stated in the Constitution.134
The argument fails to persuade.
It bears reiterating that the power to issue HDO is
inherent to the courts. The courts may issue an HDO
against an accused in a criminal case so that he may be
dealt with in accordance with law.135 It does not require
legislative conferment or constitutional recognition; it
coexists with the grant of judicial power. In Defensor-
Santiago v. Vasquez,136 the Court declared, thus:
Courts possess certain inherent powers which may be

said to be implied from a general grant of jurisdiction, in
addition to those expressly conferred on them. These
inherent powers are such powers as are necessary for the
_______________

134 Id., at p. 975.
135 Silverio v. Court of Appeals, supra note 78 at pp. 133-134;
p. 766.
136 Supra note 120.

406

Genuino vs. De Lima
ordinary and efficient exercise of jurisdiction; or essential to

the existence, dignity and functions of the court, as well as
to the due administration of justice; or are directly
appropriate, convenient and suitable to the execution of
their granted powers; and include the power to maintain
the court’s jurisdiction and render it effective in behalf of
the litigants.137
The inherent powers of the courts are essential in

upholding its integrity and largely beneficial in keeping the
people’s faith in the institution by ensuring that it has the
power and the means to enforce its jurisdiction.
As regards the power of the courts to regulate foreign
travels, the Court, in Leave Division, explained:
With respect to the power of the Court, Section 5(6),

Article VIII of the 1987 Constitution provides that
the Supreme Court shall have administrative
supervision over all courts and the personnel thereof.
This provision empowers the Court to oversee all matters
relating to the effective supervision and management of all
courts and personnel under it. Recognizing this mandate,
Memorandum Circular No. 26 of the Office of the President,
dated July 31, 1986, considers the Supreme Court exempt
and with authority to promulgate its own rules and
regulations on foreign travels. Thus, the Court came out
with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in
general, he or she swears to faithfully adhere to, and abide
with, the law and the corresponding office rules and
regulations. These rules and regulations, to which one
submits himself or herself, have been issued to guide the
government officers and employees in the efficient
performance of their obligations. When one becomes a
public servant, he or she assumes certain duties with their
concomitant responsibilities and gives up some
_______________
137 Id., at p. 679; p. 648.


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rights like the absolute right to travel so that public service would
not be prejudiced.138
It is therefore by virtue of its administrative supervision

over all courts and personnel that this Court came out with
OCA Circular No. 49-2003, which provided for the
guidelines that must be observed by employees of the
judiciary seeking to travel abroad. Specifically, they are
required to secure a leave of absence for the purpose of
foreign travel from this Court through the Chief Justice
and the Chairmen of the Divisions, or from the Office of the
Court Administrator, as the case maybe. This is “to ensure
management of court dockets and to avoid disruption in the
administration of justice.”139
OCA Circular No. 49-2003 is therefore not a restriction,
but more properly, a regulation of the employee’s leave for
purpose of foreign travel which is necessary for the orderly
administration of justice. To “restrict” is to restrain or
prohibit a person from doing something; to “regulate” is to
govern or direct according to rule.140 This regulation comes
as a necessary consequence of the individual’s employment
in the judiciary, as part and parcel of his contract in joining
the institution. For, if the members of the judiciary are at
liberty to go on leave any time, the dispensation of justice
will be seriously hampered. Short of key personnel, the
courts cannot properly function in the midst of the
intricacies in the administration of justice. At any rate, the
concerned employee is not prevented from pursuing his
travel plans without complying with OCA Circular No. 49-
2003 but he must be ready to suffer the consequences of his
noncompliance.
_______________
138 Leave Division, Office of Administrative Services-Office of the

Court Administrator (OCA) v. Heusdens, supra note 87 at pp. 341-342; p.
136.
139 Office of the Administrative Services-Office of the Court
Administrator v. Macarine, 691 Phil. 217, 222; 677 SCRA 1, 6 (2012).
140 Id.

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Genuino vs. De Lima

The same ratiocination can be said of the regulations of
the Civil Service Commission with respect to the
requirement for leave application of employees in the
government service seeking to travel abroad. The Omnibus
Rules Implementing Book V of E.O. No. 292 states the
leave privileges and availment guidelines for all
government employees, except those who are covered by
special laws. The filing of application for leave is required
for purposes of orderly personnel administration. In
pursuing foreign travel plans, a government employee
must secure an approved leave of absence from the head of
his agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as
amended by Memorandum Order (MO) No. 26 dated July
31, 1986, provided the procedure in the disposition of
requests of government officials and employees for
authority to travel abroad. The provisions of this issuance
were later clarified in the Memorandum Circular No. 18
issued on October 27, 1992. Thereafter, on September 1,
2005, E.O. No. 459 was issued, streamlining the procedure
in the disposition of requests of government officials and
employees for authority to travel abroad. Section 2 thereof
states:
Section 2. Subject to Section 5 hereof, all other

government officials and employees seeking
authority to travel abroad shall henceforth seek
approval from their respective heads of agencies,
regardless of the length of their travel and the number of
delegates concerned. For the purpose of this paragraph,
heads of agencies refer to the Department Secretaries or
their equivalents. (Emphasis ours)
The regulation of the foreign travels of government

employees was deemed necessary “to promote efficiency
and economy in the government service.”141 The objective
was
_______________
141 Executive Order No. 6 dated March 12, 1986 as amended by

Memorandum Order (MO) No. 26 dated July 31, 1986.

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clearly administrative efficiency so that government
employees will continue to render public services unless
they are given approval to take a leave of absence in which
case they can freely exercise their right to travel. It should
never be interpreted as an exception to the right to travel
since the government employee during his approved leave
of absence can travel wherever he wants, locally or abroad.
This is no different from the leave application requirements
for employees in private companies.
The point is that the DOJ may not justify its imposition
of restriction on the right to travel of the subjects of DOJ
Circular No. 41 by resorting to an analogy. Contrary to its
claim, it does not have inherent power to issue HDO,
unlike the courts, or to restrict the right to travel in
anyway. It is limited to the powers expressly granted to it
by law and may not extend the same on its own accord or
by any skewed interpretation of its authority.

The key is legislative
enactment

The Court recognizes the predicament which compelled
the DOJ to issue the questioned circular but the solution
does not lie in taking constitutional shortcuts. Remember
that the Constitution “is the fundamental and paramount
law of the nation to which all other laws must conform and
in accordance with which all private rights are determined
and all public authority administered.”142 Any law or
issuance, therefore, must not contradict the language of the
fundamental law of the land; otherwise, it shall be struck
down for being unconstitutional.
Consistent with the foregoing, the DOJ may not
promulgate rules that have a negative impact on
constitutionally
_______________
142 Biraogo v. Philippine Truth Commission, 651 Phil. 374, 464; 637
SCRA 78, 172-173 (2010).

410

Genuino vs. De Lima

protected rights without the authority of a valid law. Even
with the predicament of preventing the proliferation of
crimes and evasion of criminal responsibility, it may not
overstep constitutional boundaries and skirt the prescribed
legal processes.
That the subjects of DOJ Circular No. 41 are individuals
who may have committed a wrong against the state does
not warrant the intrusion in the enjoyment of their basic
rights. They are nonetheless innocent individuals and
suspicions on their guilt do not confer them lesser
privileges to enjoy. As emphatically pronounced in
Secretary of National Defense v. Manalo, et al.,143 the
constitution is an overarching sky that covers all in its
protection. It affords protection to citizens without
distinction. Even the most despicable person deserves the
same respect in the enjoyment of his rights as the upright
and abiding.
Let it also be emphasized that this Court fully realizes
the dilemma of the DOJ. The resolution of the issues in the
instant petitions was partly aimed at encouraging the
legislature to do its part and enact the necessary law so
that the DOJ may be able to pursue its prosecutorial duties
without trampling on constitutionally protected rights.
Without a valid legislation, the DOJ’s actions will
perpetually be met with legal hurdles to the detriment of
the due administration of justice. The challenge therefore
is for the legislature to address this problem in the form of
a legislation that will identify permissible intrusions in the
right to travel. Unless this is done, the government will
continuously be confronted with questions on the legality of
their actions to the detriment of the implementation of
government processes and realization of its objectives.
In the meantime, the DOJ may remedy its quandary by
exercising more vigilance and efficiency in the performance
of its duties. This can be accomplished by expediency in the
_______________
143 589 Phil. 1, 10; 568 SCRA 1, 10 (2008).

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assessment of complaints filed before its office and in the prompt
filing of information in court should there be an affirmative
finding of probable cause so that it may legally request for the
issuance of HDO and hold the accused for trial. Clearly, the
solution lies not in resorting to constitutional shortcuts but in an
efficient and effective performance of its prosecutorial duties.
The Court understands the dilemma of the government
on the effect of the declaration of unconstitutionality of
DOJ Circular No. 41, considering the real possibility that it
may be utilized by suspected criminals, especially the
affluent ones, to take the opportunity to immediately leave
the country. While this is a legitimate concern, it bears
stressing that the government is not completely powerless
or incapable of preventing their departure or having them
answer charges that may be subsequently filed against
them. In his Separate Concurring Opinion, Mr. Justice
Carpio, pointed out that Republic Act No. (R.A.) 8239,
otherwise known as the Philippine Passport Act of 1996,
explicitly grants the Secretary of Foreign Affairs or any of
the authorized consular officers the authority to issue
verify, restrict, cancel or refuse the issuance of a passport
to a citizen under the circumstances mentioned in Section
4144 thereof. Mr. Justice Tijam, on the other
_______________
144 SEC. 4. Authority to Issue, Deny, Restrict, or Cancel.—Upon the

application of any qualified Filipino citizen, the Secretary of Foreign
Affairs or any of his authorized consular officer may issue passports in
accordance with this Act.
Philippine consular officers in a foreign country shall be
authorized by the Secretary to issue, verify, restrict, cancel or refuse a
passport in the area of jurisdiction of the Post in accordance with the

provisions of this Act.
In the interest of national security, public safety and public
health, the Secretary or any of the authorized consular officers may, after
due hearing and in their proper discretion, refuse to issue a passport, or
restrict its use or withdraw or cancel a passport, Provided, however, That
such act shall not mean a loss or doubt on the

412

Genuino vs. De Lima

hand, mentioned Memorandum Circular No. 036, which
was issued pursuant to R.A. No. 9208 or the Anti-
Trafficking in Persons Act of 2003, as amended by R.A. No.
10364 or the Expanded Anti-Trafficking in Persons Acts of
2012, which authorizes the BI to hold the departure of
suspected traffickers or trafficked individuals. He also
noted that the Commissioner of BI has the authority to
issue an HDO against a foreigner subject of deportation
proceedings in order to ensure his appearance therein.
Similarly, the proposal of Mr. Justice Velasco for the
adoption of new set of rules which will allow the issuance of
a precautionary warrant of arrest offers a promising
solution to this quandary. This, the Court can do in
recognition of the fact that laws and rules of procedure
should evolve as the present circumstances require.

Contempt charge against
respondent De Lima

It is well to remember that on November 18, 2011, a
Resolution145 was issued requiring De Lima to show cause
why she should not be disciplinarily dealt or be held in
contempt for failure to comply with the TRO issued by this
Court.
In view, however, of the complexity of the facts and
corresponding full discussion that it rightfully deserves, the
Court finds it more fitting to address the same in a
separate proceeding. It is in the interest of fairness that
there be a complete and exhaustive discussion on the
matter since it entails the imposition of penalty that bears
upon the fitness of the respondent as a member of the legal
profession. The Court, therefore, finds it proper to

deliberate and resolve the charge
_______________
person’s citizenship: Provided, further, That the issuance of a passport may not be

denied if the safety and interest of the Filipino citizen is at stake: Provided,
finally, That refusal or cancellation of a passport would not prevent the issuance of
a Travel Document to allow for a safe return journey by a Filipino to the
Philippines.

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of contempt against De Lima in a separate proceeding that
could accommodate a full opportunity for her to present her
case and provide a better occasion for the Court to
deliberate on her alleged disobedience to a lawful order.
WHEREFORE, in view of the foregoing disquisition,
Department of Justice Circular No. 41 is hereby declared
UNCONSTITUTIONAL. All issuances which were
released pursuant thereto are hereby declared NULL and
VOID.
The Clerk of Court is hereby DIRECTED to
REDOCKET the Resolution of the Court dated November
28, 2011, which required respondent Leila De Lima to show
cause why she should not be cited in contempt, as a
separate petition.
SO ORDERED.
Leonardo-De Castro, Peralta, Bersamin, Del Castillo,

Perlas-Bernabe, Jardeleza, Martires, Tijam and Gesmundo,
JJ., concur.
Sereno, CJ., On Indefinite Leave.
Carpio, J., See Concurring Opinion.
Velasco, Jr., J., See Separate Concurring Opinion.
Leonen, J., See Separate Opinion.
Caguioa, J., No part.

414

Genuino vs. De Lima

CONCURRING OPINION

CARPIO, Acting CJ.:

I concur.

The constitutionality of the as-
sailed administrative circular
remains justiciable.

Preliminarily, the consolidated petitions continue to
present a justiciable controversy. Neither the expiration of
the watch list orders issued by Leila M. De Lima
(respondent) as former Secretary of Justice nor the filing of
Information for electoral sabotage against petitioner Gloria
Macapagal-Arroyo (GMA) rendered the cases moot.
A case becomes moot when it ceases to present a
justiciable controversy such that its adjudication would not
yield any practical value or use.1 Where the petition is one
for certiorari seeking the nullification of an administrative
issuance for having been issued with grave abuse of
discretion, obtaining the other reliefs prayed for in the
course of the proceedings will not render the entire petition
moot altogether. In COCOFED-Philippine Coconut
Producers Federation, Inc. v. Commission on Elections
(COMELEC),2 the Court thus explained:
_______________
1 Osmeña III v. Social Security System of the Philippines, 559 Phil.

723, 735; 533 SCRA 313, 327 (2007), citing Province of Batangas v.
Romulo, 473 Phil. 806, 827-828; 429 SCRA 736, 754 (2004); Olanolan v.
Commission on Elections, 494 Phil. 749, 759; 454 SCRA 807, 816-817
(2005); Paloma v. Court of Appeals, 461 Phil. 269, 276-277; 415 SCRA 590,
595 (2003).
2 716 Phil. 19; 703 SCRA 165 (2013).

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Genuino vs. De Lima
A moot and academic case is one that ceases to present a

justiciable controversy because of supervening events so
that a declaration thereon would be of no practical use or
value.
In the present case, while the COMELEC counted and
tallied the votes in favor of COCOFED showing that it
failed to obtain the required number of votes, participation
in the 2013 elections was merely one of the reliefs
COCOFED prayed for. The validity of the COMELEC’s
resolution, cancelling COCOFED’s registration, remains a
very live issue that is not dependent on the outcome of the
elections.3 (Citations omitted)
Similarly, when an accused assails via certiorari the

judgment of conviction rendered by the trial court, his
subsequent release on parole will not render the petition
academic.4 Precisely, if the sentence imposed upon him is
void for lack of jurisdiction, the accused should not have
been paroled, but unconditionally released since his
detention was illegal.5 In the same vein, even when the
certification election sought to be enjoined went on as
scheduled, a petition for certiorari does not become moot
considering that the petition raises jurisdictional errors
that strike at the very heart of the validity of the
certification election itself.6 Indeed, an allegation of a
jurisdictional error is a justiciable controversy that would
prevent the mootness of a special civil action for certiorari.7
Here, the consolidated petitions for certiorari and
prohibition assail the constitutionality of Department of
Justice
_______________
3 Id., at pp. 28-29; p. 175.

4 Castrodes v. Cubelo, 173 Phil. 86; 83 SCRA 670 (1978).
5 Id., at p. 91; p. 675.
6 Cooperative Rural Bank of Davao City, Inc. v. Ferrer-Calleja, 248
Phil. 169; 165 SCRA 725 (1988).
7 Regulus Development, Inc. v. Dela Cruz, G.R. No. 198172, January
25, 2016, 781 SCRA 607, 619.

416

Genuino vs. De Lima

(DOJ) Circular No. 041-10,8 on which respondent based her
issuance of watch list and hold departure orders against
petitioners. Notably, DOJ Circular No. 041-10 was not
issued by respondent herself, but by Alberto C. Agra as
then Acting Secretary of Justice during the Arroyo
Administration. It became effective on 2 July 2010.9 In fact,
the assailed issuance remains in effect. To be sure,
whether the watch list and hold departure orders issued by
respondent against petitioners subsequently expired or
were lifted is not determinative of the constitutionality of
the circular. Hence, the Court is duty-bound to pass upon
the constitutionality of DOJ Circular No. 041-10, being a
justiciable issue rather than an exception to the doctrine of
mootness.

DOJ Circular No. 041-
10 is an invalid im-
pairment of the right
to travel, and there-
fore, unconstitutional.

Proceeding now to the substantive issue, I agree that
DOJ Circular No. 041-10 violates the constitutional right to
travel.
Section 6, Article III of the Constitution reads:
SEC. 6. The liberty of abode and of changing the same

within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of
national security, public safety, or public
_______________
8 Otherwise known as Consolidated Rules and Regulations Governing

the Issuances and Implementing of Hold Departure Orders, Watch List
Orders and Allow Departure Orders.
9 DOJ Circular No. 041-10 was published in The Philippine Star on 17
June 2010. Under Art. 2 of the Civil Code, as interpreted by the Court
in Tañada v. Tuvera, 230 Phil. 528, 533-534; 146 SCRA 446, 451-452
(1986), DOJ Circular No. 041-10 shall take effect after 15 days from the
date of its publication.

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Genuino vs. De Lima
health, as may be provided by law. (Emphasis supplied)

As above quoted, the right to travel is not absolute.
However, while it can be restricted, the only permissible
grounds for restriction are national security, public safety,
and public health, which grounds must at least be
prescribed by an act of Congress. In only two instances can
the right to travel be validly impaired even without a
statutory authorization. The first is when a court forbids
the accused from leaving Philippine jurisdiction in
connection with a pending criminal case.10 The second is
when Congress, pursuant to its power of legislative inquiry,
issues a subpoena or arrest order against a person.11
The necessity for a legislative enactment expressly
providing for a valid impairment of the right to travel finds
basis in no less than the fundamental law of the land.
Under Section 1, Article VI of the Constitution, the
legislative power is vested in Congress. Hence, only
Congress, and no other entity or office, may wield the
power to make, amend, or repeal laws.12
Accordingly, whenever confronted with provisions
interspersed with phrases like “in accordance with law” or
“as may be provided by law,” the Court turns to acts of
Congress for a holistic constitutional construction. To
illustrate, in interpreting the clause “subject to such
limitations as may be provided
_______________
10 Cruz v. Iturralde, 450 Phil. 77, 86; 402 SCRA 65, 72-73
(2003); Hold-Departure Order Issued by Judge Salvador M. Occiano,
MCTC-Nabua, Camarines Sur, in Criminal Cases Nos. 7353 and 7363,
431 Phil. 408, 411-412; 381 SCRA 655, 657 (2002); Silverio v. Court of
Appeals, 273 Phil. 128, 134-135; 195 SCRA 760, 766 (1991).
11 See Arnault v. Nazareno, 87 Phil. 29, 45 (1950). See also my
dissenting opinion in Leave Division, Office of Administrative Services-
Office of the Court Administrator (OCA) v. Heusdens, 678 Phil. 328, 355;
662 SCRA 126, 149 (2011).
12 See Belgica v. Ochoa, Jr., 721 Phil. 416, 546; 710 SCRA 1, 120-121
(2013).

418

Genuino vs. De Lima

by law” in relation to the right to information, the Court
held in Gonzales v. Narvasa13 that it is Congress that will
prescribe these reasonable conditions upon the access to
information:
The right to information is enshrined in Section 7 of the

Bill of Rights which provides that —
The right of the people to information on matters of
public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to
such limitations as may be provided by law.

Under both the 1973 and 1987 Constitution, this is a
self-executory provision which can be invoked by any
citizen before the courts. This was our ruling in Legaspi v.
Civil Service Commission, wherein the Court classified the
right to information as a public right and “when
a mandamus proceeding involves the assertion of a public
right, the requirement of personal interest is satisfied by
the mere fact that the petitioner is a citizen, and therefore,
part of the general ‘public’ which possesses the right.”
However, Congress may provide for reasonable
conditions upon the access to information. Such
limitations were embodied in Republic Act No. 6713,
otherwise known as the “Code of Conduct and Ethical
Standards for Public Officials and Employees,” which took
effect on March 25, 1989. This law provides that, in the
performance of their duties, all public officials and
employees are obliged to respond to letters sent by the
public within fifteen (15) working days from receipt thereof
and to ensure the accessibility of all public documents for

inspection by the public within reasonable
_______________
13 392 Phil. 518; 337 SCRA 733 (2000).

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Genuino vs. De Lima
working hours, subject to the reasonable claims of

confidentiality.14 (Emphasis supplied; Citations omitted)
In Tondo Medical Center Employees Association v. Court

of Appeals,15 the Court made a jurisprudential survey on
the interpretation of constitutional provisions that are not
self-executory and held that it is Congress that will breathe
life into these provisions:
As a general rule, the provisions of the Constitution are

considered self-executing, and do not require future legislation for
their enforcement. For if they are not treated as self-executing, the
mandate of the fundamental law can be easily nullified by the
inaction of Congress. However, some provisions have already been
categorically declared by this Court as non-self-executing.
In Tañada v. Angara, the Court specifically set apart the
sections found under Article II of the 1987 Constitution as
non-self-executing and ruled that such broad principles
need legislative enactments before they can be
implemented:
By its very title, Article II of the Constitution is a
“declaration of principles and state policies.” x x x
These principles in Article II are not intended to
be self-executing principles ready for enforcement
through the courts. They are used by the judiciary as
aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of
laws.

In Basco v. Philippine Amusement and Gaining
Corporation, this Court declared that Sections 11, 12, and
13 of Article II; Section 13 of Article XIII; and Section 2 of
Article XIV of the 1987 Constitution are not self-executing

provisions. In Tolentino v. Secretary of Fi-
_______________
14 Id., at pp. 529-530; pp. 745-746.

15 554 Phil. 609; 527 SCRA 746 (2007).

420

Genuino vs. De Lima
nance, the Court referred to Section 1 of Article XIII and Section 2

of Article XIV of the Constitution as moral incentives to
legislation, not as judicially enforceable rights. These provisions,
which merely lay down a general principle, are distinguished from
other constitutional provisions as non-self-executing and,
therefore, cannot give rise to a cause of action in the courts; they
do not embody judicially enforceable constitutional rights.
Some of the constitutional provisions invoked in the
present case were taken from Article II of the Constitution
— specifically, Sections 5, 9, 10, 11, 13, 15 and 18 — the
provisions of which the Court categorically ruled to be non-
self-executing in the aforecited case of Tañada v.
Angara.16 (Emphasis supplied; citations omitted)
In Ang Bagong Bayani-OFW Labor Party v.

COMELEC,17 the Court construed the constitutional
provisions on the party list system and held that the
phrases “in accordance with law” and “as may be provided
by law” authorized Congress “to sculpt in granite the lofty
objective of the Constitution,” to wit:
That political parties may participate in the party list elections

does not mean, however, that any political party — or any
organization or group for that matter — may do so. The requisite
character of these parties or organizations must be consistent with
the purpose of the party list system, as laid down in the
Constitution and RA 7941. Section 5, Article VI of the
Constitution, provides as follows:
“(1) The House of Representatives shall be
composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be
elected from legislative districts apportioned among

the provinces, cities, and the Metropolitan Manila
area in accor-
_______________
16 Id., at pp. 625-626; pp. 763-765.

17 412 Phil. 308; 359 SCRA 698 (2001).

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dance with the number of their respective inhabitants, and

on the basis of a uniform and progressive ratio, and those
who, as provided by law, shall be elected through a party
list system of registered national, regional, and sectoral
parties or organizations.
(2) The party list representatives shall constitute
twenty per centum of the total number of
representatives including those under the party list.
For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to
party list representatives shall be filled, as provided
by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors
as may be provided by law, except the religious
sector.”
x x x x
The foregoing provision on the party-list system is not
self-executory. It is, in fact, interspersed with
phrases like “in accordance with law” or “as may be
provided by law”; it was thus up to Congress to sculpt
in granite the lofty objective of the Constitution.
x x x.18 (Italicization in the original; boldfacing supplied)
Unable to cite any specific law on which DOJ Circular

No. 041-10 is based, respondent invokes Executive Order
No. 292, otherwise known as the Revised Administrative
Code of 1987. In particular, respondent cites the DOJ’s
mandate to “investigate the commission of crimes” and
“provide immigration x x x regulatory services,” as well as

the DOJ Secretary’s rulemaking power.19
_______________
18 Id., at pp. 331-332; pp. 717-718.

19 Consolidated Comment, p. 36.

422

Genuino vs. De Lima

I disagree.
In the landmark case of Ople v. Torres,20 an
administrative order was promulgated restricting the right
to privacy without a specific law authorizing the
restriction. The Office of the President justified its legality
by invoking the Revised Administrative Code of 1987. The
Court rejected the argument and nullified the assailed
issuance for being unconstitutional as the Revised
Administrative Code of 1987 was too general a law to serve
as basis for the curtailment of the right to privacy, thus:
We now come to the core issues. Petitioner claims that

A.O. No. 308 is not a mere administrative order but a law
and hence, beyond the power of the President to issue. He
alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the
life and liberty of every Filipino citizen and foreign resident,
and more particularly, violates their right to privacy.
Petitioner’s sedulous concern for the Executive not to
trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line
between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their
delicate balance of power and cannot be allowed. Hence, the
exercise by one branch of government of power belonging to
another will be given a stricter scrutiny by this Court.
x x x x
Prescinding from these precepts, we hold that A.O. No.
308 involves a subject that is not appropriate to be covered
by an administrative order. An administrative order is:
“Sec. 3. Administrative Orders.—Acts of the

President which relate to particular as-
_______________
20 354 Phil. 948; 293 SCRA 141 (1998).

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Genuino vs. De Lima
pects of governmental operation in pursuance of his duties as

administrative head shall be promulgated in administrative
orders.”

An administrative order is an ordinance issued by the
President which relates to specific aspects in the
administrative operation of government. It must be in
harmony with the law and should be for the sole purpose of
implementing the law and carrying out the legislative
policy. We reject the argument that A.O. No. 308
implements the legislative policy of the
Administrative Code of 1987. The Code is a general
law and “incorporates in a unified document the
major structural, functional and procedural
principles of governance” and “embodies changes in
administrative structures and procedures designed
to serve the people.” The Code is divided into seven (7)
Books: Book I deals with Sovereignty and General
Administration, Book II with the Distribution of Powers of
the three branches of Government, Book III on the Office of
the President, Book IV on the Executive Branch, Book V on
the Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative
Procedure. These Books contain provisions on the
organization, powers and general administration of the
executive, legislative and judicial branches of government,
the organization and administration of departments,
bureaus and offices under the executive branch, the
organization and functions of the Constitutional
Commissions and other constitutional bodies, the rules on
the national government budget, as well as guidelines for
the exercise by administrative agencies of quasi-legislative

and quasi-judicial powers. The Code covers both the
internal administration of government, i.e., internal
organization, personnel and recruitment, supervision and
discipline, and the effects of the functions performed by
administrative officials on private individuals or parties
outside government.21 (Citations omitted)
_______________
21 Id., at pp. 966, 968-969; pp. 148-152.

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Indeed, EO 292 is a law of general application.22 Pushed
to the hilt, the argument of respondent will grant carte
blanche to the Executive in promulgating rules that curtail
the enjoyment of constitutional rights even without the
sanction of Congress. To repeat, the Executive is limited to
executing the law. It cannot make, amend or repeal a law,
much less a constitutional provision.
For the same reason, in the Court’s jurisprudence
concerning the overseas travel of court personnel during
their approved leaves of absence and with no pending
criminal case before any court, I have consistently
maintained that only a law, not administrative rules, can
authorize the Court to impose administrative sanctions for
the employee’s failure to obtain a travel permit:
Although the constitutional right to travel is not

absolute, it can only be restricted in the interest of national
security, public safety, or public health, as may be provided
by law. As held in Silverio v. Court of Appeals:
Article III, Section 6 of the 1987 Constitution
should be interpreted to mean that while the liberty
of travel may be impaired even without court order,
the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to
impose limitations. They can impose limits only on
the basis of “national security, public safety, or public
health” and “as may be provided by law,” a limitive
phrase which did not appear in the 1973 text x x x.

Apparently, the phraseology in the 1987 Constitution
was a reaction to the ban on international travel
_______________
22 Office of the Solicitor General (OSG) v. Court of Appeals, 735 Phil.

622, 630; 725 SCRA 469, 477 (2014); Calingin v. Court of Appeals, 478
Phil. 231, 236-237; 434 SCRA 173, 176 (2004); Government Service
Insurance System v. Civil Service Commission, 307 Phil. 836, 846; 237
SCRA 809, 815 (1994).

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imposed under the previous regime when there was a

Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested party
x x x.
The constitutional right to travel cannot be impaired
without due process of law. Here, due process of law
requires the existence of a law regulating travel abroad, in
the interest of national security, public safety or public
health. There is no such law applicable to the travel abroad
of respondent. Neither the OCA nor the majority can point
to the existence of such a law. In the absence of such a law,
the denial of respondent’s right to travel abroad is a gross
violation of a fundamental constitutional right.
x x x x
Furthermore, respondent’s travel abroad, during her
approved leave, did not require approval from anyone
because respondent, like any other citizen, enjoys the
constitutional right to travel within the Philippines or
abroad. Respondent’s right to travel abroad, during her
approved leave, cannot be impaired “except in the interest
of national security, public safety, or public health, as may
be provided by law.” Not one of these grounds is present in
this case.23 (Citations omitted)
While the Revised Administrative Code of 1987 cannot

lend credence to a valid impairment of the right to travel,
Republic Act No. (RA) 8239, otherwise known as the
Philippine Passport Act of 1996, expressly allows

the Secretary of Foreign Affairs or any of the
authorized consular officers to cancel the passport of a
citizen. Section 4 of RA 8239 reads:
_______________
23 See my dissenting opinion in Leave Division, Office of

Administrative Services-Office of the Court Administrator (OCA) v.
Heusdens, supra note 11 at pp. 354-356; pp. 148-150.

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Genuino vs. De Lima
SEC. 4. Authority to Issue, Deny, Restrict or Cancel.—

Upon the application of any qualified Filipino citizen, the
Secretary of Foreign Affairs or any of his authorized
consular officer may issue passports in accordance with this
Act.
authorized by the Secretary to issue, verify, restrict, cancel
or refuse a passport in the area of jurisdiction of the Post in
accordance with the provisions of this Act.
In the interest of national security, public safety and
public health, the Secretary or any of the authorized
consular officers may, after due hearing and in their proper
discretion, refuse to issue a passport, or restrict its use or
withdraw or cancel a passport: Provided, however, That
such act shall not mean a loss or doubt on the person’s
citizenship: Provided, further, That the issuance of a
passport may not be denied if the safety and interest of the
Filipino citizen is at stake: Provided, finally, That refusal or
cancellation of a passport would not prevent the issuance of
a Travel Document to allow for a safe return journey by a
Filipino to the Philippines.

The identical language between the grounds to cancel
passports under the above quoted provision and the
grounds to impair the right to travel under Section 6,
Article III of the Constitution is not by accident cognizant
of the fact that passport cancellations necessarily entail an
impairment of the right. Congress intentionally copied the

latter to obviate expanding the grounds for restricting the
right to travel.
Can the DFA Secretary, under Section 4 of RA 8239,
cancel the passports of persons under preliminary
investigation? The answer depends on the nature of the
crime for which the passport holders are being investigated
on. If the crime affects national security and public safety,
the cancellation squarely falls within the ambit of Section
4. Thus, passport holders facing preliminary investigation
for the following

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crimes are subject to the DFA Secretary’s power under
Section 4:
(1) Title One, (Crimes Against National Security and the
Law of Nations), Title Three (Crimes Against Public
Order), Title Eight (Crimes Against Persons), Title
Nine (Crimes Against Liberty), Title Ten (Crimes
Against Property) and Title Eleven (Crimes Against
Chastity), Book II of the Revised Penal Code;
(2) Section 261 (Prohibited Acts), paragraphs (e),24 (f),25
(p),26 (q),27 (s),28 and (u)29 of the Omnibus Election
Code;30 and
(3) Other related election laws such as Section 27(b) of
RA 7874, as amended by RA 9369.31

Indeed, the phrases “national security” and “public
safety,” which recur in the text of the Constitution as
grounds for the exercise of powers or curtailment of
rights,32 are intentionally
_______________
24 “Threats, intimidation, terrorism, use of fraudulent device or other

forms of coercion.”
25 “Coercion of election officials and employees.”
26 “[Carrying of] deadly weapons in prohibited areas.”
27 “Carrying of firearms outside residence or place of business.”
28 “Wearing of uniforms and bearing arms.”
29 “Organization or maintenance of reaction forces, strike forces, or

other similar forces.”
30 Batas Pambansa Blg. 881, as amended.
31 Defining the offense of Electoral Sabotage.
32 E.g., (1) Art. III, Sec. 3(1) [“The privacy of communication and
correspondence shall be inviolable except upon lawful order of the court,
or when public safety or order requires otherwise, as prescribed by
law.”]; Sec. 6 [“The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of
the court. 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.”]; Sec. 15 [“The privilege of the writ of habeas
corpus shall not be suspended except

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broad to allow interpretative flexibility, but circumscribed
at the same time to prevent limitless application. At their
core, these concepts embrace acts undermining the State’s
existence or public security. At their fringes, they cover
acts disrupting individual or communal tranquility. Either
way, violence or potential of violence features prominently.
Thus understood, the “public safety” ground under
Section 4 of RA 8239 unquestionably includes violation of
election-related offenses carrying the potential of
disrupting the peace, such as electoral sabotage which
involves massive tampering of votes (in excess of 10,000
votes). Not only does electoral sabotage desecrate electoral
processes, but it also arouses heated passion among the
citizenry, driving some to engage in mass actions and
others to commit acts of violence. The cancellation of
passports of individuals investigated for this crime
undoubtedly serves the interest of public safety, much like
individuals under investigation for robbery, kidnapping,
and homicide, among others.33
_______________
in cases of invasion or rebellion, when the public safety requires it.”] and

(2) Art. VII, Sec. 15 [“Two months immediately before the next
presidential elections and up to the end of his term, a President or Acting
President shall not make appointments, except temporary appointments

to executive positions when continued vacancies therein will prejudice
public service or endanger public safety.”]; Sec. 18 par. 2 [“In case of
invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial
law. x x x. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.”] (Emphasis supplied)
33 It is not far-fetched to link election laws with public safety. The
European Court of Human Rights considers the forced abolition of a
political party espousing violent and extreme views as permissible in the
interest of public safety, even though this impairs the party members’
right to association. See Refah Partisi v. Turkey, 13

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As to whether respondent must be cited in contempt for
allegedly defying the Temporary Restraining Order issued
by the Court, I agree that it cannot be resolved
simultaneously with these consolidated petitions. Until the
contempt charge is threshed out in a separate and proper
proceeding, I defer expressing my view on this issue.
Accordingly, I vote to GRANT the petitions and to
declare DOJ Circular No. 041-10, and the assailed Watch
List Orders issued pursuant to the
circular, UNCONSTITUTIONAL for being contrary to
Section 6, Article III of the Constitution. As regards the
contempt charge against respondent, I DEFER any
opinion on this issue until it is raised in a separate and
proper proceeding.

SEPARATE CONCURRING OPINION

VELASCO, JR., J.:

I concur with the ponencia of my esteemed colleague,
Justice Andres B. Reyes, Jr.
That the right to travel and to freedom of movement are
guaranteed protection by no less than the fundamental law
of our land brooks no argument. While these rights are not

absolute, the delimitation thereof must rest on specific
circumstances that would warrant the intrusion of the
State. As mandated by Section 6 of the Bill of Rights, any
curtailment of the people’s freedom of movement must
indispensably be grounded on an intrinsically valid law,
and only whenever necessary to protect national security,
public safety, or public health, thus:
SEC. 6. The liberty of abode and of changing the same

within the limits prescribed by law shall not be im-
_______________
February 2003, Application Nos. 41340/98, 41342/98, 41343/98 and

41344/9837. (<www.echr.coe.int/Documents/Reports_Recueil_2003-II.pdf>,
accessed on 18 January 2018)

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Genuino vs. De Lima
paired except upon lawful order of the court. 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. (Emphasis and underscoring supplied)
The Department of Justice (DOJ) Circular No. 41 cannot

be the law pertained to in the provision. As pointed out in
the ponencia, it is but an administrative issuance that
requires an enabling law to be valid.1
Jurisprudence dictates that the validity of an
administrative issuance is hinged on compliance with the
following requirements: 1) its promulgation is authorized
by the legislature; 2) it is promulgated in accordance with
the prescribed procedure; 3) it is within the scope of the
authority given by the legislature; and 4) it is
reasonable.2 The DOJ, thus, exceeded its jurisdiction when
it assumed to wield the power to issue hold departure
orders (HDOs) and watch list orders (WLOs), and allow
department orders which unduly infringe on the people’s
right to travel absent any specific legislation expressly
vesting it with authority to do so.
I, therefore, concur that DOJ Circular No. 41 is without basis

in law and is, accordingly, unconstitutional.
With the declaration of nullity of DOJ Circular No. 41,
our law enforcers are left in a quandary and without
prompt recourse for preventing persons strongly suspected
of committing criminal activities from evading the reach of
our justice system by fleeing to other countries.
Justice Antonio T. Carpio, in his Separate Concurring
Opinion, makes mention of Republic Act No. 8239,
otherwise known as the Philippine Passport Act of 1996,
which expressly allows the Secretary of Foreign Affairs or
any of the
_______________
1 Page 375 of the Decision.

2 Executive Secretary v. Southwing Heavy Industries, Inc., G.R. No.
164171, February 20, 2006, 482 SCRA 673, 686.

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authorized consular officers to cancel the passport of a citizen,
even those of persons under preliminary investigations, for crimes
affecting national security and public safety. This course of action,
while undoubtedly a legally viable solution to the DOJ’s dilemma,
would nevertheless require the conduct of a hearing, pursuant to
Section 43 of the law. This would inevitably alert the said persons
of interest of the cause and purpose of the cancellation of their
passports that could, in turn, facilitate, rather than avert, their
disappearance to avoid the processes of the court.
As an alternative solution, it is my humble submission that the
above predicament can be effectively addressed through the ex
parte issuance of precautionary warrants of arrest (PWAs) and/or
precautionary hold departure orders (PHDOs) prior to the filing of
formal charges and information against suspected criminal
personalities.
The issuance of PWAs or PHDOs is moored on Section 2,
Article III of the Bill of Rights of the Constitution, to wit:
_______________
3 SEC. 4. Authority to Issue, Deny, Restrict or Cancel.—Upon the

application of any qualified Filipino citizen, the Secretary of Foreign
Affairs or any of his authorized consular officer may issue passports in
accordance with this Act.
authorized by the Secretary to issue, verify, restrict, cancel or refuse a
passport in the area of jurisdiction of the Post in accordance with the
provisions of this Act.
In the interest of national security, public safety and public
health, the Secretary or any of the authorized consular officers may, after
due hearing and in their proper discretion, refuse to issue a passport, or
restrict its use or withdraw or cancel a passport: Provided, however, That
such act shall not mean a loss or doubt on the person’s
citizenship: Provided, further, That the issuance of a passport may not be
denied if the safety and interest of the Filipino citizen is at
stake: Provided, finally, That refusal or cancellation of a passport would
not prevent the issuance of a Travel Document to allow for a safe return
journey by a Filipino to the Philippines. (Emphasis supplied)

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Section 2. x x x no search warrant or warrant of arrest

shall issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized. (Emphasis supplied)

It bears noting that the warrant clause permits the
issuance of warrants, whether it be a search warrant or a
warrant of arrest, even prior to the filing of a criminal
complaint or information in court. This interpretation
finds support in the crafting of the provisions in our Rules
of Criminal Procedure that govern the issuance of search
warrants. As stated in Sections 4 to 64 of Rule 126, a search
warrant may be issued by the courts if, after personally
examining the complainants/applicants and the witnesses
produced, they are convinced that probable cause exists for
the issuance thereof. The rules do not require that 1) a

criminal action or even a complaint must have already
been filed against an accused;
_______________
4 Section 4. Requisites for issuing search warrant.—A search

warrant shall not issue except upon probable cause in connection with one
specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere in the
Philippines.
Section 5. Examination of complainant; record.—The judge
must, before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts personally known
to them and attach to the record their sworn statements, together with
the affidavits submitted. (4a)
Section 6. Issuance and form of search warrant.—If the judge
is satisfied of the existence of facts upon which the application is based or
that there is probable cause to believe that they exist, he shall issue the
warrant, which must be substantially in the form prescribed by these
Rules. (5a)

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and that 2) persons of interest are notified of such
application before law enforcement may avail of this
remedy. The application for and issuance of a search
warrant are not conditioned on the existence of a criminal
action or even a complaint before an investigating
prosecutor against any person.
Anchored on Section 2, Article III of the Constitution, a
rule on precautionary warrant of arrest, akin to a search
warrant, may be crafted by the Court. The application will
be done ex parte, by a public prosecutor upon the initiative
of our law enforcement agencies, before an information is
filed in court, and only in certain serious crimes and
offenses. Before filing the application, the public prosecutor
shall ensure that probable cause exists that the crime has
been committed and that the person sought to be arrested

committed it. The law enforcement agencies may also opt to
ask for a PWA with PHDO or simply a PHDO.
The judge’s determination of probable cause shall be
done in accordance with the requirements in Section 2,
Article III of the Constitution. He shall set a hearing on the
application to personally examine under oath or
affirmation, in form of searching questions and answers,
the applicant and the witnesses he may produce on facts
personally known to them and attach to the record their
sworn statements. If satisfied of the existence of probable
cause based on the application and its attachments, the
testimonies of the witnesses, and other evidence presented
during the hearing, the judge may issue the warrant and
direct the Philippine National Police or the National
Bureau of Investigation to effect the arrest.
The suggested revision in the Rules, to my mind, will
help solve the problem caused by the declaration of nullity
of the HDOs and WLOs issued by the DOJ. The law
enforcement agencies can apply for a PWA or PHDO to
prevent suspects from fleeing the country and to detain and
arrest them at the airport. This may also solve the problem
of extrajudicial killings as the law enforcement agency is
now provided with an adequate remedy for the arrest of the
criminals.

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Genuino vs. De Lima

I vote to GRANT the petition.

SEPARATE OPINION

LEONEN, J.:

I concur that Department of Justice Circular No. 41,
Series of 2010, is unconstitutional. The Department of
Justice is neither authorized by law nor does it possess the
inherent power to issue hold departure orders, watch list
orders, and allow departure orders against persons under
preliminary investigation.
However, I have reservations regarding the proposed
doctrine that the right of persons to travel can only be
impaired by a legislative enactment as it can likewise be

burdened by other constitutional provisions.
The pertinent Constitutional provision on the right to
travel is Article III, Section 6, which states:
Section 6. The liberty of abode and of changing the

shall the right to travel be impaired except in the interest of
national security, public safely, or public health, as may be
provided by law. (Emphasis supplied)

The right to travel, as a concept, was directly tackled in
Marcos v. Manglapus,1 an early case decided under the
1987 Constitution. It dealt specifically with the right of
former President Marcos to return to the Philippines. In
resolving the case, this Court distinguished between the
right to return to one’s country and the general right to
travel. The right to return to one’s country was treated
separately and deemed excluded from the constitutionally
protected right to travel.2
_______________
1 258 Phil. 489; 177 SCRA 668 (1989) [Per J. Cortes, En Banc].
2 Id., at pp. 497-498; p. 687.

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In my view, the right to travel should not be given such
a restrictive interpretation. In the broad sense, the right to
travel refers to the “right to move from one place to
another.”3 The delimitation set in Marcos effectively
excludes instances that may involve a curtailment on the
right to travel within the Philippines and the right to travel
to the Philippines. This case presents us with an
opportunity to revisit Marcos and abandon its narrow and
restrictive interpretation. In this regard, the constitutional
provision should be read to include travel within the
Philippines and travel to and from the Philippines.
Undeniably, the right to travel is not absolute. Article

III, Section 6 of the Constitution states that any
curtailment must be based on “national security, public
safety, or public health, as may be provided by law.”
In interpreting this constitutional provision,
the ponencia proposes that only a statute or a legislative
enactment may impair the right to travel.
Respectfully, I disagree. In my view, the phrase “as may
be provided by law” should not be literally interpreted to
mean statutory law. Its usage should depend upon the
context in which it is written. As used in the Constitution,
the word “law” does not only refer to statutes but embraces
the Constitution itself.
The Bill of Rights is replete with provisions that provide
a similar phraseology. For instance, both the due process
clause and the equal protection clause under Article III,
Section 1 of the Constitution contain the word “law,” thus:
_______________
3 Mirasol v. Department of Public Works and Highways, 523 Phil. 713,

752; 490 SCRA 318, 353 (2006) [Per J. Carpio, En Banc].

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Genuino vs. De Lima

Article III
BILL OF RIGHTS

Section 1. No person shall be deprived of life, liberty or

property without due process of law, nor shall any person be
denied the equal protection of the laws. (Emphasis supplied)

However, the application of the due process and the
equal protection clauses has not been limited to statutory
law. These two (2) principles have been tested even against
executive issuances.
In Ynot v. Intermediate Appellate Court,4 the due process
clause was deemed to have been violated by an executive
order which directed the outright confiscation of carabaos
transported from one province to another. In declaring the

executive order unconstitutional, this Court held:
[T]he challenged measure is an invalid exercise of the

police power because the method employed to conserve the
carabaos is not reasonably necessary to the purpose of the
law and, worse, is unduly oppressive. Due process is
violated because the owner of the property confiscated is
denied the right to be heard in his defense and is
immediately condemned and punished. The conferment on
the administrative authorities of the power to adjudge the
guilt of the supposed offender is a clear encroachment on
judicial functions and militates against the doctrine of
separation of powers. There is, finally, also an invalid
delegation of legislative powers to the officers mentioned
therein who are granted unlimited discretion in the
distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A
unconstitutional.5
_______________
4 232 Phil. 615, 631; 148 SCRA 659, 674-675 (1987) [Per J. Cruz, En
Banc].
5 Id.

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In the same manner, this Court in Corona v. United
Harbor Pilots Association of the Philippines6 invalidated an
administrative order that restricted harbor pilots from
exercising their profession. The administrative order,
which required harbor pilots to undergo an annual
performance evaluation as a condition for the continued
exercise of their profession, was considered a “deprivation
of property without due process of law.”7
In Biraogo v. Truth Commission,8 the creation of the
Philippine Truth Commission by virtue of an executive
order was deemed unconstitutional for violating the equal
protection clause. The classification under the executive
order, according to this Court, was unreasonable, thus:
Executive Order No. 1 should be struck down as violative of the

equal protection clause. The clear mandate of the envisioned truth
commission is to investigate and find out the truth “concerning the
reported cases of graft and corruption during the previous
administration” only. The intent to single out the previous
administration is plain, patent and manifest. Mention of it has
been made in at least three portions of the questioned executive
order. Specifically, these are:
WHEREAS, there is a need for a separate body
dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and
corruption during the previous administration,
and which will recommend the prosecution of the
offenders and secure justice for all;
SECTION 1. Creation of a Commission.—There is
hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred
_______________
6 347 Phil. 333; 283 SCRA 31 (1997) [Per J. Romero, En Banc].

7 Id., at p. 344; p. 43.
8 651 Phil. 374; 637 SCRA 78 (2010) [Per J. Mendoza, En Banc].

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Genuino vs. De Lima
to as the “COMMISSION,” which shall primarily seek and

find the truth on, and toward this end, investigate reports of
graft and corruption of such scale and magnitude that shock
and offend the moral and ethical sensibilities of the people,
committed by public officers and employees, their co-
principals, accomplices and accessories from the private
sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to
be taken thereon to ensure that the full measure of justice
shall be served without fear or favor.
SECTION 2. Powers and Functions.—The
Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book
I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding

investigation of reported cases of graft and corruption
referred to in Section 1, involving third level public
officers and higher, their co-principals, accomplices
and accessories from the private sector, if any, during
the previous administration and thereafter submit
its finding and recommendations to the President,
Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo

administration is but just a member of a class, that is, a
class of past administrations. It is not a class of its own. Not
to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly
reverberates to label the commission as a vehicle for
vindictiveness and selective retribution.9 (Citations omitted)
_______________
9 Id., at pp. 461-462; pp. 170-171.

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In this regard, it is inaccurate to say that the right of
persons to travel to and from the Philippines can only be
impaired by statutory law. It is also inaccurate to say that
the impairment should only be limited to national security,
public safety, or public health considerations for it to be
valid.
For instance, the assailed department order in
Philippine Association of Service Exporters, Inc. v.
Drilon10 was not founded upon national security, public
safety, or public health but on the state’s policy of affording
protection to labor.11 The department order was deemed a
valid restriction on the right to travel.12
The term “law” in Article III, Section 6 can refer to the
Constitution itself. This can be understood by examining
this Court’s power to regulate foreign travel of court
personnel and the nature and functions of bail.
The power of this Court to regulate the foreign travel of

court personnel does not emanate from statutory law, nor
is it based on national security, public safety, or public
health considerations. Rather, it is an inherent power
flowing from Article III, Section 5(6) of the Constitution,
which grants this Court the power of administrative
supervision over all courts and court personnel.13
The nature and object of this Court’s power to control
the foreign travel of court personnel were further explained
in Leave Division, Office of Administrative Services-Office
of the Court Administrator v. Heusdens,14 thus:
_______________
10 246 Phil. 393; 163 SCRA 386 (1988) [Per J. Sarmiento, En Banc].
11 Id., at pp. 404-405; p. 396.
12 Id.
13 CONST., Art. VIII, Sec. 5(6) provides:
Section 6. The Supreme Court shall have administrative
supervision over all courts and the personnel thereof.
14 678 Phil. 328; 662 SCRA 126 (2011) [Per J. Mendoza, En Banc].

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Genuino vs. De Lima
With respect to the power of the Court, Section 5(6),

Article VIII of the 1987 Constitution provides that the
“Supreme Court shall have administrative supervision over
all courts and the personnel thereof.” This provision
empowers the Court to oversee all matters relating to the
effective supervision and management of all courts and
personnel under it. Recognizing this mandate,
Memorandum Circular No. 26 of the Office of the President,
dated July 31, 1986, considers the Supreme Court exempt
and with authority to promulgate its own rules and
regulations on foreign travels. Thus, the Court came out
with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in
general, he or she swears to faithfully adhere to, and abide
with, the law and the corresponding office rules and
regulations. These rules and regulations, to which one
submits himself or herself, have been issued to guide the

government officers and employees in the efficient
performance of their obligations. When one becomes a
public servant, he or she assumes certain duties with their
concomitant responsibilities and gives up some rights like
the absolute right to travel so that public service would not
be prejudiced.
As earlier stated, with respect to members and
employees of the Judiciary, the Court issued OCA Circular
No. 49-2003 to regulate their foreign travel in an unofficial
capacity. Such regulation is necessary for the orderly
administration of justice. If judges and court personnel can
go on leave and travel abroad at will and without
restrictions or regulations, there could be a disruption in the
administration of justice. A situation where the employees go
on mass leave and travel together, despite the fact that their
invaluable services are urgently needed, could possibly arise.
For said reason, members and employees of the Judiciary
cannot just invoke and demand their right to travel.
To permit such unrestricted freedom can result in
disorder, if not chaos, in the Judiciary and the society as
well. In a situation where there is a delay in the
dispensation of justice, litigants can get disappointed and
dis-

441
VOL. 861, APRIL 17, 2018 441

Genuino vs. De Lima
heartened. If their expectations are frustrated, they may take

the law into their own hands which results in public
disorder undermining public safety. In this limited sense, it
can even be considered that the restriction or regulation of a
court personnel’s right to travel is a concern for public safety,
one of the exceptions to the non-impairment of one’s
constitutional right to travel.15 (Citations omitted, emphasis
supplied)
A person’s right to bail before conviction is both

guaranteed and limited under the Constitution. Article III,
Section 13 states:
Section 13. All persons, except those charged with

offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

Courts have the jurisdiction to determine whether a
person should be admitted to bail. This jurisdiction springs
from the Constitution itself, which imposes limitations on
the right to bail. However, the discretion of courts is not
restricted to the question of whether bail should be granted
to an accused as Courts have the inherent power “to
prohibit a person admitted to bail from leaving the
Philippines.”16 Regional Trial Courts, in particular, are
empowered to issue hold departure orders in criminal cases
falling within their exclusive jurisdiction.17 Persons
admitted to bail are required to seek permission before
travelling abroad.18
_______________
15 Id., at pp. 341-342; pp. 136-137.

16 Manotoc, Jr. v. Court of Appeals, 226 Phil. 75, 82; 142 SCRA 149,
153 (1986) [Per J. Fernan, En Banc].
17 OCA Circular No. 39-97, Guidelines in the Issuance of Hold
Departure Orders (1997):

442

Genuino vs. De Lima
_______________
In order to avoid the indiscriminate issuance of Hold Departure
Orders resulting in inconvenience to the parties affected the same being
tantamount to an infringement on the right and liberty of an individual to
travel and to ensure that the Hold Departure Orders which are issued
contain complete and accurate information, the following guidelines are
hereby promulgated:
1. Hold Departure Orders shall be issued only in criminal

cases within the exclusive jurisdiction of the Regional Trial Courts;
2. The Regional Trial Courts issuing the Hold Departure Order
shall furnish the Department of Foreign Affairs (DFA) and the Bureau of
Immigration (BI) of the Department of Justice with a copy each of the
Hold Departure Order issued within twenty-four (24) hours from the time
of issuance and through the fastest available means of transmittal;
3. The Hold Departure Order shall contain the following
information:
a. The complete name (including the middle name), the date and
place of birth and the place of last residence of the person against
whom a Hold Departure Order has been issued or whose departure
from the country has been enjoined;
b. The complete title and the docket number of the case in which
the Hold Departure Order was issued;
c. The specific nature of the case; and
d. The date of the Hold Departure Order.
If available a recent photograph of the person against whom
a Hold Departure Order has been issued or whose departure from the
country has been enjoined should also be included.
4. Whenever (a) the accused has been acquitted; or (b) the
case has been dismissed, the judgment of acquittal or the order of
dismissal shall include therein the cancellation of the Hold Departure
Order issued. The courts concerned shall furnish the Department of
Foreign Affairs and the Bureau of Immigration with a copy each of the
judgment of acquittal promulgated or the order of dismissal issued within
twenty-four (24) hours from the time of promulgation/issuance and
likewise through the fastest available means of transmittal.

443
VOL. 861, APRIL 17, 2018 443

Genuino vs. De Lima

Similar to the power of this Court to control foreign
travel of court personnel, the power to restrict the travel of
persons admitted to bail is neither based on a legislative
enactment nor founded upon national security, public
safety, or public health considerations. The power of courts
to restrict the travel of persons on bail is deemed a
necessary consequence of the conditions imposed in a bail
bond.19 In Manotoc v. Court of Appeals20 this Court
explained:
Rule 114, Section 1 of the Rules of Court defines bail as the

security required and given for the release of a person who is in
the custody of the law, that he will appear before any court in
which his appearance may be required as stipulated in the bail
bond or recognizance.
“Its object is to relieve the accused of imprisonment and
the state of the burden of keeping him, pending the trial,
and at the same time, to put the accused as much under the
power of the court as if he were in custody of the proper
officer, and to secure the appearance of the accused so as to
answer the call of the court and do what the law may
require of him.”
The condition imposed upon petitioner to make himself
available at all times whenever the court requires his
presence operates as a valid restriction on his right to
travel. As we have held in People v. Uy Tuising[:]
“. . . the result of the obligation assumed by
appellee (surety) to hold the accused amenable at all
times to the orders and processes of
_______________
All Regional Trial Courts which have furnished the Department of

Foreign Affairs with their respective lists of active Hold Departure Orders
are hereby directed to conduct an inventory of the Hold Departure Orders
included in the said lists and inform the government agencies concerned of
the status of the Orders involved.
18/ Leave Division, Office of Administrative Services-Office of the Court
Administrator (OCA) v. Heusdens, supra note 14.
19 Supra note 16.
20 Id.

444

Genuino vs. De Lima
the lower court, was to prohibit said accused from leaving

the jurisdiction of the Philippines, because, otherwise, said
orders and processes will be nugatory, and inasmuch as the
jurisdiction of the courts from which they issued does not
extend beyond that of the Philippines they would have no
binding force outside of said jurisdiction.”
Indeed, if the accused were allowed to leave the

Philippines without sufficient reason, he may be placed
beyond the reach of the courts.
“The effect of a recognizance or bail bond, when fully
executed or filed of record, and the prisoner released
thereunder, is to transfer the custody of the accused from
the public officials who have him in their charge to keepers
of his own selection. Such custody has been regarded merely
as a continuation of the original imprisonment. The sureties
become invested with full authority over the person of the
principal and have the right to prevent the principal from
leaving the state.”2 (Citations omitted)
Although Manotoc was decided under the 1973

Constitution, the nature and functions of bail remain
essentially the same under the 1987 Constitution.22 Hence,
the principle laid down in Manotoc was reiterated
in Silverio v. Court of Appeals23 where this Court further
explained that:
Article III, Section 6 of the 1987 Constitution should by no

means be construed as delimiting the inherent power of the Courts
to use all means necessary to carry their orders into effect in
criminal cases pending before them. When by law jurisdiction is
conferred on a Court or judicial officer, all auxiliary writs, process
and
_______________
21 Id., at pp. 82-83; p. 154.

22 Silverio v. Court of Appeals, 273 Phil. 128, 134; 195 SCRA 760, 765-
766 (1991) [Per J. Melencio-Herrera, Second Division].
23 Id.

445
VOL. 861, APRIL 17, 2018 445

Genuino vs. De Lima
other means necessary to carry it into effect may be

employed by such Court or officer.
. . . .
. . . Holding an accused in a criminal case within the
reach of the Courts by preventing his departure from the
Philippines must be considered as a valid restriction on his

right to travel so that he may be dealt with in accordance
with law.24 (Citation omitted)
Moreover, the power of courts to restrict the travel of

persons out on bail is an incident of its power to grant or
deny bail. As explained in Santiago v. Vasquez:25
Courts possess certain inherent powers which may be

said to be implied from a general grant of jurisdiction, in
addition to those expressly conferred on them. These
inherent powers are such powers as are necessary for the
ordinary and efficient exercise of jurisdiction; or essential to
the existence, dignity and functions of the courts, as well as
to the due administration of justice; or are directly
appropriate, convenient and suitable to the execution of
their granted powers; and include the power to maintain
the court’s jurisdiction and render it effective in behalf of
the litigants.
Therefore, while a court may be expressly granted the
incidental powers necessary to effectuate its jurisdiction, a
grant of jurisdiction, in the absence of prohibitive
legislation, implies the necessary and usual incidental
powers essential to effectuate it, and, subject to existing
laws and constitutional provisions, every regularly
constituted court has the power to do all things that are
reasonably necessary for the administration of justice
within the scope of its jurisdiction. Hence, demands,
matters, or questions ancillary or incidental to, or growing
out of, the
_______________
25 Id.
25 291 Phil. 664; 217 SCRA 633 (1993) [Per J. Regalado, En Banc].

446

Genuino vs. De Lima
main action, and coming within the above principles, may be taken
cognizance of by the court and determined, since such jurisdiction
is in aid of its authority over the principal matter, even though the
court may thus be called on to consider and decide matters which,

as original causes of action, would not be within its cognizance.
Furthermore, a court has the inherent power to make
interlocutory orders necessary to protect its jurisdiction.
Such being the case, with more reason may a party-litigant
be subjected to proper coercive measures where he disobeys
a proper order, or commits a fraud on the court or the
opposing party, the result of which is that the jurisdiction of
the court would be ineffectual. What ought to be done
depends upon the particular circumstances.
Turning now to the case at bar, petitioner does not deny
and, as a matter of fact, even made a public statement that
she had every intention of leaving the country allegedly to
pursue higher studies abroad. We uphold the course of
action adopted by the Sandiganbayan in taking judicial
notice of such fact of petitioner’s plan to go abroad and in
thereafter issuing sua sponte the hold departure order, in
justified consonance with our preceding disquisition. To
reiterate, the hold departure order is but an exercise of
respondent court’s inherent power to preserve and to
maintain the effectiveness of its jurisdiction over the case
and the person of the accused.208
The Department of Justice is neither empowered by a

specific law nor does it possess the inherent power to
restrict the right to travel of persons under criminal
investigation through the issuance of hold departure
orders, watch list orders, and allow departure orders. Its
mandate under the Administrative Code of 1987 to
“[i]nvestigate the commission of crimes [and] prosecute
offenders”209 cannot be interpreted so broadly as to include
the power to curtail a person’s right to
_______________
26 Id., at pp. 679-680; pp. 648-649.

27 1987 Adm. Code, Title III, Sec. 3(2).

447
VOL. 861, APRIL 17, 2018 447

Genuino vs. De Lima
travel. Furthermore, Department Order No. 41, Series of

2010 cannot be likened to the power of the courts to restrict
the travel of persons on bail as the latter presupposes that
the accused was arrested by virtue of a valid warrant and
placed under the court’s jurisdiction. For these reasons,
Department of Justice Circular No. 41, Series of 2010, is
unconstitutional.
Parenthetically, I agree that the right to travel is part
and parcel of an individual’s right to liberty, which cannot
be impaired without due process of law.28
The ponencia mentions Rubi v. Provincial Board of
Mindoro.29 In my view, Rubi should always be cited with
caution. In Rubi, the Mangyans of Mindoro were forcibly
removed from their habitat and were compelled to settle in
a reservation under pain of imprisonment for
noncompliance.30 Although the concepts of civil liberty and
due process were extensively discussed in the case,31 this
Court nevertheless justified the government act on a
perceived necessity to “begin the process of civilization” of
the Mangyans who were considered to have a “low degree
of intelligence” and as “a drag upon the progress of the
State.”32
Department of Justice Circular No. 41 declared

unconstitutional.
Notes.—Jurisprudence provides that an actual case or

controversy is one which — involves a conflict of legal
rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or
abstract difference or dispute. (Belgica vs. Ochoa, Jr., 710
SCRA 1 [2013])
_______________
28 Ponencia, pp. 367-368.

29 39 Phil. 660 (1919) [Per J. Malcolm, En Banc].
30 Id., at pp. 666-669.
31 Id., at pp. 703-707.
32 Id., at pp. 718-720.

448

Genuino vs. De Lima
While probable cause should be determined in a

summary manner, there is a need to examine the evidence
with care to prevent material damage to a potential
accused’s constitutional right to liberty and the guarantees
of freedom and fair play. (Cam vs. Casimiro, 760 SCRA 467
[2015])

——o0o——

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2/2/2021 SUPREME COURT REPORTS ANNOTATED 861

G.R. No. 197930. April 17, 2018.*

326 SUPREME COURT REPORTS ANNOTATED

G.R. No. 199046. April 17, 2018.*

Judicial Review; Limitations on the Power of Judicial Review.

VOL. 861, APRIL 17, 2018 327

novel occurrence as the Court, in a number of occasions, took

Constitutional Law; Bill of Rights; The more precious gifts of

328 SUPREME COURT REPORTS ANNOTATED

tion of Service Exporters, Inc. v. Drilon, 163 SCRA 386 (1988),

VOL. 861, APRIL 17, 2018 329

Same; Same; Same; There are only three (3) considerations

330 SUPREME COURT REPORTS ANNOTATED

Same; Same; Same; There is no law particularly providing for

delegation of legislative power is itself valid. It is valid only if

VOL. 861, APRIL 17, 2018 331

therein the policy to be executed, carried out, or implemented

law. Any impairment or restriction in the exercise of a

332 SUPREME COURT REPORTS ANNOTATED

requirement that there be an existing law, complete and

VOL. 861, APRIL 17, 2018 333

Constitutional Law; Hierarchy of Rights; The Department of

discharge his investigatory duties. If the accused chooses to waive

334 SUPREME COURT REPORTS ANNOTATED

Same; Same; Same; Right to Liberty; Right to Travel; The

criminal prosecution and consequent liability. It is an arrogation

VOL. 861, APRIL 17, 2018 335

interfere with personal liberty or property in order to promote

if it claims to be exercising the same as the alter ego of the

336 SUPREME COURT REPORTS ANNOTATED

persons, especially the parties targeted by it, fair notice of the

information against them which could have warranted the

VOL. 861, APRIL 17, 2018 337

Same; The power to issue Hold Departure Order (HDO) is

338 SUPREME COURT REPORTS ANNOTATED

Thereafter, on September 1, 2005, E.O. No. 459 was issued,

CARPIO, Acting CJ., Concurring Opinion:

VOL. 861, APRIL 17, 2018 339

the legislative power is vested in Congress. Hence, only

340 SUPREME COURT REPORTS ANNOTATED

of 1996, expressly allows the Secretary of Foreign

VOL. 861, APRIL 17, 2018 341

investigated for this crime undoubtedly serves the interest of

342 SUPREME COURT REPORTS ANNOTATED

Same; Same; Hold Departure Orders; Watch List Orders;

VOL. 861, APRIL 17, 2018 343

humble submission that the above predicament can be

344 SUPREME COURT REPORTS ANNOTATED

2, Article III of the Constitution, a rule on precautionary

VOL. 861, APRIL 17, 2018 345

346 SUPREME COURT REPORTS ANNOTATED

while a court may be expressly granted the incidental

VOL. 861, APRIL 17, 2018 347

cannot be likened to the power of the courts to restrict the

SPECIAL CIVIL ACTIONS in the Supreme Court.

348 SUPREME COURT REPORTS ANNOTATED

The facts are stated in the opinion of the Court.

REYES, JR., J.: