FOR

ATTY. CHARISMA NOLASCO SUPERVISING LAWYER KRISTINE JOY G. DELOS SANTOS 3 October 2011 THE CASE OF THE TREKKER MINISTER

FROM : DATE : RE :

This refers to your letter dated September 9, 2011. From your letter, we note the following: FACTS
Rev. Ramirez was arrested on June 6, 2011 during the hostage taking of one of the premiere hotels in Manila. He was brought at a military camp for inquest proceedings to ascertain if there was probable cause to hold him and the others for trial or charges of Rebellion and/or inciting to Rebellion. The following day, the DOJ Secretary issued a Hold Departure Order ordering Commissioner of Immigration to include in the Hold Departure List the name of Rev. Ramirez. On June 8, 2011 a complaint for Rebellion was filed against them before the RTC Branch of Manila. The Client filed a Motion for Judicial Determination of Probable Cause and Release upon recognizance asserting that there was insufficient evidence to indicate his specific participation in the crime charged. Five days after, the RTC issued an Order dismissing the charge for Rebellion. On June 25, the Client wrote to the DOJ Secretary requesting the lifting of the HDO because the criminal case was already dismissed. But the Secretary of Justice denied the request. And every time he would present himself to the airport he was detained and interrogated by BID officers because of the continued inclusion of his name in the Hold Departure List; and that the DOJ Secretary has not acted on his request for the lifting of the HDO.

ISSUES: The issue presented in this case is: Whether Rev. Ramirez is entitled to the privilege of Writ of Amparo because of the continued restraint on his right to travel is illegal because the HDO that was issued against him has not been lifted despite the dismissal of the criminal case.

BRIEF ANSWER: No. Rev. Ramirez cant avail the Writ of Amparo. He only needs to go on the proper process of lifting the Hold Departure Order so that his right to travel becomes legal.

DISCUSSION The Writ of Amparo, which means protection is of Mexican origin. Its present form is found in Articles 103 and 107 of the Mexican Constitution.1 It started as a protection against acts or omissions of public authorities in violation of constitutional rights.2On October 24, 2007, the Rule on the Writ of Amparo took effect in the Philippines. It was adopted by the Philippine Supreme Court pursuant to its power under the 1987 Constitution to promulgate rules concerning the protection and enforcement of constitutional rights. The new rule covers the right to life, liberty and security in cases of extralegal killings, enforced disappearances or threats thereof.3 The petition may be filed by the aggrieved party or by any qualified person4 or entity on any day an at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.5 In Tapuz v. Del Rosario, 554 SCRA 768 (2008) the Court laid down the basic principle regarding the rule on the Writ of Amparo. Furthermore, under the Rules of Court, Appendix N Sec. 5 provides for the contents of Petition. In the present case, Rev. Ramirez fails to institute valid contention for him to avail the Writ of Amparo because the continued restraint on his 6right to travel is due to the existence of the Hold Departure Order. With regards to the Writ of Habeas Data, the roots of the writ can be traced to the Council of Europes 108th Convention on Data Protection of 1981. The writ of habeas data may be said to be the youngest legal mechanism to appear in the legal landscape.7 Section 1 of A.M. No. 08-116-SC states the it is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee,, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal
1

FREE LEGAL ASSISTANCE GROUP<http://philippines.ahrchk.net/pdf/PrimerOnWritOfAmparo.pdf(visited October 2, 2011)

2

Supreme Court, Annotation to the Writ of Amparo<http://sc.judiciary.gov.ph/Annotation_amparo.pdf>(visited October 2, 2011)

3

Adolfo S. Azcuna, The Philippine Writ of Amparo: A New Remedy for Human Rights <http://www.venice.coe.int/WCCJ/Papers/PHI_Azcuna_E.pdf>(visited October 2, 2011)
4

A.M. No. 07-9-12-SC The Rule on The Writ of Amparo, Sec. 2 (2007) A.M. No. 07-9-12-SC The Rule on The Writ of Amparo, Sec. 3 (2007) CONST. (1987), Art III, Sec. 6

R.S. Puno, The Writ of Habeas Data (UNESCO Policy Forum and Organizational Meeting of the Information for all Program, Philippine National Committee) (November 19, 2007)

killings and enforced disappearances, the petition may be filed by any member of the immediate family of the aggrieved party or any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity.8 On the other hand, a Hold Departure Order is an Order issued by the President, Secretary or the proper Regional Trial Court commanding the Commissioner to prevent the departure for abroad of Filipinos and/or aliens named therein by including them in the Bureaus Hold Departure list9. Under the DOJ, Department Circular No. 41 sec. 1 it states that the Secretary of Justice may issue an HDO against the accused, irrespective of nationality and In criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs). 10 Whenever (a) the accused has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold Departure Order Issued. The Court 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 hours from the time of promulgation / issuance likewise through the fastest available means of transmittal. 11All applications for lifting/cancellation of HDOs must be under oath and accompanied by certified true copies of the documentary evidence in support of the ground relied upon. In the present case, the HDO was issued against Rev. Ramirez because of the criminal case that was filed against him, and even if the said case was already dismissed the HDO still subsists which makes his right to travel becomes illegal. 12The right to travel is actually enshrined in the Constitution. And any effort to restrict or limit this right must have strong basis. As stated by the Supreme Court in one guideline the indiscriminate issuance of Hold-Departure Orders can result in inconvenience to the parties affected the same being tantamount to an infringement on the right and liberty of an individual to travel. It has been held in Reyes vs. Court of Appeals, 606 SCRA 580 (2009) Petition to lift a Hold Departure Order (HDO) issued by the Secretary of Justice should be filed in the court where criminal case against petitioner is pending.

CONCLUSION: Therefore, the continued restraint on Rev. Ramirez right to travel because of the HDO that was issued against him which is still subsisting if the criminal charge was already dismissed cannot make him entitled to the privilege of Writ of Amparo due to lack of evidence which shows that his right to life, liberty and security is violated by public officers. The action we can invoke is to follow the proper proceedings needed to lift the HDO so that his right to travel be legal. RECOMMENDATION:
8

A.M. No. 08-1-16-SC The Rule on The Writ of Habeas Data, Sec. 2 (2008)
DOJ, Department Circular No. 17,par 1 subsection e (1998) DOJ, Department Circular No. 39-97,par 4 (1997) DOJ, Department Circular No. 41, par. c (2010) < http://thelegallyinclined.blogspot.com/2010/07/not-so-fast-hold-departure-and-watch.html>

10

11

12

The following are the steps to lift the Hold Departure Order: (1) Upon the termination or dismissal of the case, get a copy of the Order, together with an Oath and accompanied by Certified True copies of the Documentary evidence in support of the ground relied upon; (2) File the lifting of the HDO to the same court where the criminal case is filed; and last (3) wait for the issuance that the HDO is already lifted. The proper process of application for the lifting of HDO is the thing we can do because the Writ of Amparo cant be avail due to lack of evidence showing that his right to life, liberty and security is violated by public officers.