GENUINO VS. DE LIMA (G.R. No. 197930 April 17, 2018)

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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326 SUPREME COURT REPORTS ANNOTATED
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.
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 discharge his investigatory duties. If the accused chooses to waive his presence or fails to
submit countervailing evidence, that is his 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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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.
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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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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
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 Order 5 (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; and
8
(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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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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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.
355
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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 Motion 29 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 Petition 31 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.
356
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 compliance 35 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 (P2,000,000.00); 36 (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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Genuino vs. De Lima
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 Motion 41 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.
358
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-CR 49 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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Genuino vs. De Lima
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, 2011 54 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.
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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).
367
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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 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.
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. (Emphasis
79
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 Court 80 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.
370
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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Genuino vs. De Lima
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.
xxxx
MR. RODRIGO. Aside from that, this includes the right to travel?
FR. BERNAS. Yes.
_______________
84 Id., at p. 677.
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Genuino vs. De Lima
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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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
Genuino vs. De Lima
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).
377
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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.
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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.
384
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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 discharge his investigatory duties. If the accused chooses to waive his
presence or fails to submit countervailing evidence, that is his 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).
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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).
390
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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).
391
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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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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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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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Genuino vs. De Lima
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
Departure Orders, Watch List 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
Departure Orders, Watch List 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
xxxx
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.
400
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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.
The application under oath of an interested party must be 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.
The application under oath of an interested party must be 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.
405
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Genuino vs. De Lima
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.
407
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Genuino vs. De Lima
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.
409
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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).
411
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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 4 144 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 Resolution 145 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.
413
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Genuino vs. De Lima
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. (Citations omitted)
3
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
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. (Emphasis supplied; Citations
14
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. (Emphasis supplied; citations omitted)
16
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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Genuino vs. De Lima
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.”
xxxx
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. (Italicization in the original; boldfacing supplied)
18
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.
xxxx
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.
424
Genuino vs. De Lima
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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Genuino vs. De Lima
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.
xxxx
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. (Citations omitted)
23
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.
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 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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Genuino vs. De Lima
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
428
Genuino vs. De Lima
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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Genuino vs. De Lima
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 4 of the law. This would inevitably alert the said persons of interest of the
3
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.
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 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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Genuino vs. De Lima
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 6 4 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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Genuino vs. De Lima
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 same within the limits prescribed by law
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. (Citations omitted)
9
_______________
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-
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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. (Citations omitted, emphasis supplied)
15
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):
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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.
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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.
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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.” (Citations omitted)
2
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.
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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. (Citation omitted)
24
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).
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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.
_______________
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])

GENUINO VS. DE LIMA (G.R. No. 197930 April 17, 2018)

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GENUINO VS. DE LIMA (G.R. No. 197930 April 17, 2018)

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

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

MA. GLORIA MACAPAGAL-ARROYO, petitioner, vs. HON. LEILA M. DE LIMA, as

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

LEONEN, J., Separate Opinion:

The facts are stated in the opinion of the Court.

1 Rollo (G.R. No. 199034), Volume I, pp. 45-46.

In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the

3 Id., at pp. 49-58.

(b) XVI-INV-11D-00170, entitled Francisco I. Chavez v. Gloria Macapagal-Arroyo, et al., for

28 Id., at pp. 110, 112, 113-114, 116.

34 Id., at pp. 208-209.

38 Id., at pp. 349-350.

50 Id., at pp. 518-524.

55 Id., at pp. 7-8.

WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF

The Court may exercise

59 Rollo (G.R. No. 199034), Volume III, p. 921.

62 THE 1987 CONSTITUTION, Article VIII, Sec. 1.

In Prof. David v. Pres. Macapagal-Arroyo,68 the Court proceeded in ruling on the

67 Id., at p. 199; p. 198.

69 Id., at p. 754; pp. 214-215.

The right to travel and

76 Cruz, Isagani A., Constitutional Law, p. 168, 2000 Edition.

Bernas, Joaquin G., S.J., Vol. I, First Edition, 1987,

79 Id., at pp. 133-134; p. 765.

82 Records of the Constitutional Commission, Volume I, p. 674.

85 Id., at pp. 764-765.

86 Supra note 71 at p. 405; pp. 394-396.

88 Id., at pp. 339-340; pp. 134-135.

The issuance of DOJ

89 Rollo (G.R. No. 199034), Volume III, p. 922.

94 Supra note 91.

Section 7. Powers and Functions of the Secretary.—The Secretary shall:

99 Id., at p. 809; pp. 375-376.

the former.102 Thus, in Allado v. Diokno,103 the Court declared, viz.:

A preliminary investigation is x x x an inquiry or proceeding for the purpose of determining

It bears emphasizing that the conduct of a preliminary investigation is an implement of due

107 Id., at p. 299; pp. 92-93.

109 1987 CONSTITUTION, Article VIII, Section 5(5).

The DOJ cannot issue DOJ

112 Supra note 71 at p. 398; p. 390.

DOJ Circular No. 41

119 Guidelines in the Issuance of Hold Departure Orders.

121 Section 1(a). DOJ Circular No. 41.

126 Silverio v. Court of Appeals, supra note 78 at pp. 133-134; p. 765.

The subject WLOs and the

WLO No. ASM-11-237127

On 09 August 2011, Hon. Leila M. De Lima, Secretary of the Department of Justice

Watch List Order No. 2011-422128

In re: Issuance of Watch List

Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this

128 Id., at pp. 47-48.

IN RE: Issuance of WLO against

129 Id., at pp. 49-59.

1. MA. GLORIA M. MACAPAGAL-ARROYO

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the

Hold Departure Order (HDO)

In re: Issuance of HDO against