(Article published in the Nov 3, 2003 issue of TODAY, Business Section)
I did not think it would
come and certainly not that quickly.
But it seems that the Department of Justice is not the slow moving
behemoth of a bureaucracy that the media is wont to picture it as.
It was only about a month
ago when this column advocated a second look at the discretion given to
the Secretary of Justice, under his own Circular 17 dated March 19, 1998,
to place aliens in the Hold Departure List sans
a court order. On 17 October
2003, in lifting the hold departure order he issued on September 26, 2003,
Justice Secretary Simeon A. Datumanong steps are being taken in that
direction. To the comfort of foreign investors watching how the
government would handle such a delicate matter, he demonstrated that, in
practice, the discretion of the Secretary of Justice under Circular No. 17
was not as broad as the text seems to suggest.
It has become clear that
the Department of Justice, as befits the lead government agency in
ensuring the rule of law in the day to day operations of the government,
in reality adheres to standards of reason and prudence, balancing
carefully the needs of the state with the individualís right to travel.
The standards may not be expressly written in full, but they are, like the
unwritten law of gravity, nevertheless operative. They formed the basis of Secretary Datumanongís Order of
October 17, 2003.
The specific provision of
Circular 17, which foreign investors had always been anxious about, is
Paragraph 2(c)(v) which states that a Hold Departure Order (HDO) is to be
implemented by the Commissioner of Immigration when it is issued by the
Secretary of Justice, upon application of an interested party, against an
alien whose presence is required as witness in a criminal case, or as the
defendant or respondent or witness in a civil, labor, or other case before
a judicial, quasi-judicial or administrative body of the government.
On this legal leg stood HDO No. 0913 issued last September 26, 2003
against three expats working in an internationally reputable bank which
has been a partner in Philippine progress longer than any bank existing in
the country today.
On its face, it appears
that all it takes, under Paragraph 2(c)(v) of Circular 17, to harass a
foreigner by restricting his freedom to travel in and out of the country
on legitimate business is to file a complaint against him with the
Secretary of Justice, alleging that his presence is necessary (a) as a
witness in a criminal or civil case or (b) as the party sued in a pending
case in the country. That
view, the October 17, 2003 order of Secretary Datumanong shows is
In his Order numbered HDO
0913-A, Secretary Datumanong noted that, in the case of the three expats
held in the country by HDO 0913, no request was received by his department
from the other agencies cited by the counsel of the applicant for the HDO,
such as the Securities and Exchange Commission, the Bangko Sentral ng
Pilipinas, the Anti-Money Laundering Council, and the National Labor
Relations Commission, or in any other agency of the government for the
issuance of the HDO. True,
complaints had been filed by the applicant, but still, no subpoenas or
summons had been issued by any of the said government agencies for them to
appear in any proceeding or to answer any charge or complaint.
By pointing this out in
the premises of his October 17 order, Secretary Datumanong reveals that a
request to his office from the government agencies concerned is a
necessary condition for him, or anyone holding his office, to consider
issuing an HDO. At the very
least, what ought to be presented by the interested party seeking an HDO
against an alien is the fact that a formal process, like a subpoena or
summons requiring the alien to appear in any proceeding before the issuing
agency or answer a charge or complaint filed with it, has been issued.
This is the minimum requirement to prove need for the alienís
presence. It must emanate
from the government agency itself. Not
volunteered by a self-serving party.
Even the issuance of a subpoena or summons, however, will not guarantee that the Secretary of Justice will exercise his discretion in favor of the applicant. Subpoenas were in fact issued by the Department of Justice against the three expats who were being investigated by that office for syndicated estafa. But the Secretary noted that the Chief State Prosecutor had interposed no objection to of HDO 0913, subject only to certain conditions.