National Situationer: Trivial pursuit?

Citing the need to seek medical treatment abroad, former President and current Pampanga reperesentative Gloria Arroyo recently sought the approval of the Supreme Court to leave the country. Arroyo, who was diagnosed with a rare bone disease, claims that the domestic medical facilities cannot treat her ailment.

Arroyo’s plea, however, sparked controversy when the Department of Justice (DOJ) stopped the former president and her husband, Mike Arroyo from leaving the country a few hours before their departure at the Ninoy Aquino International Airport (NAIA).

The former President, who is on the DOJ’s watch-list order because of allegations of electoral sabotage, was however allowed to travel  because the Supreme Court issued a Temporary Restraining Order (TRO).  The TRO is a legal document that temporarily prohibits the arrest of the Arroyos.

SC Spokesperson Jose Midas Marquez explains that the TRO the court issued voided indefinitely the earlier implementation of DOJ Circular No. 41, which allowed DOJ Secretary Leila de Lima to issue a hold-departure order for the former first gentleman and former president.

Neverthless, even with the TRO, the DOJ and de Lima asserted their authority in handling the incident and pushed through with issuing the arrest warrant that led to the temporary detention of Arroyo in her hospital room at St. Luke’s Medical Hospital.

The arrest came as a result of recommendations a joint-panel of the DOJ gave and the Commision on Elections’s (COMELEC) investigation of the former president’s alleged poll fraud in 2004 and 2007.

The dispute between the Supreme Court and the DOJ has sparked debates concerning the extent the state can exert its authority over such proceedings.

State supremacy over individual rights?

De Lima claims that the mandate of the state must be prioritized over the right of an individual if it entails the survival of the former. Even with the absence of a law that explicitly allows the state to impair a person’s right to travel, de Lima insisted that the state’s “inherent police power” permitted the initiative against the former president.

The Justice secretary cited Executive Order 292 or the Administrative Code of the Philippines as the legal basis for the arrest and the inclusion of the former president in the watch-list order. The Executive Order contains provisions of the administrative guidelines and delegation of power in the country’s current political system.Critics, however, question the applicability of the executive order in this case.

Justice Teresita Leonardo-de Castro explains that given that the said order has no explicit provisions pertaining to the state’s capacity to impair travel, it cannot be used as a legal basis for the administration’s recent actions. “You cannot go into inferences. There must be a law that allows you to impair private rights to serve public interest,” de Castro explains in an article from gmanetwork.com.

Former first gentleman’s lawyer, Ferdinand Topacio also questioned the legalities surrounding the joint investigation panel that recommended the former president’s arrest.

In an article from Inquirer.net, Senator Joker Arroyo warned that such actions mirror the state’s mandate that led to numerous human rights violations during Martial law.

“Secretary De Lima mentioned the conflict between individual rights versus the right of the state to survive.  That was the same issue during the 14 years of martial law when the right of the state to survive was considered superior to individual rights. That’s why police powers were always invoked during that time,” explains Senator Arroyo.

Louie Montemar from the Political Science Department shares similar sentiments. “Based on the laws of the country and based on international human rights standards, she should have been allowed to go out because that is really her right as a citizen of this country.”

“Even the hard-boiled martial law rulers, with blood in their hands, gave way to Christian charity and human rights concerns. No balancing of competing interests, no selective and arbitrary application of rules,” Senator Arroyo furthers.

Seeking refuge

Senator Miriam Defensor-Santiago opened the possibility of Arroyo seeking the help of the United Nations (UN) Human Rights Commission to get permission to travel abroad. Santiago explains that constitutional provisions explain that the right to travel is a basic human right, and thus could be grounds for petition to the commission.

Because the right to travel is a constitutionally protected right, Santiago adds that the state can only bar individuals from travelling if such actions would prove to be a threat to national security, public safety or public health. This, however, requires a substantial amount of evidence to prove.

“In the case of a particular applicant, the only way it can be proved that her departure will threaten national security is if it can be proved that while abroad, she might withdraw billions of pesos and fund a national uprising against the administration. That would be proof that a departure would be a threat to national security,” Santiago explains in an article from Inquirer.net.

The administration and the DOJ have not yet presented evidence that satisfy the conditions. Both cited only “national interest” as one of the grounds for barring the former president’s travel plans. Santiago explains that “national interest” is not in the provisions of the Constitution.

De Lima also cited the absence of extradition treaties in former president Arroyo’s destination countries as justification. An extradition treaty is an agreement between two countries to turn over wanted individuals that are found in the jurisdiction of the other country and vice versa. Santiago, however, points out that the absence of an extradition treaty does not necessarily rule out the possibility of capturing wanted persons.

“The matter of extradition can be either contractual or political. This means that even if we have no extradition treaty with another country, if that country wants to extradite the applicant, there is no rule in international law that prohibits a country from extraditing a foreign national as an exercise of state sovereignty,” she explains.

Not just a legal matter

Montemar believes that the case has gone beyond legal complexities. He explains that given the already questionable rise to power of the former president, the actions that were taken against her may be justified in spite of the legal issues raised.

“We should have done everything we could have done to disallow her from going out because her performance and her track record as a leader and as someone who uses the word of the law and twists it in her favor really tells us that this lady is not to be trusted on matters of the law and matters of justice,” he explains.