Hold departure order in PAGCOR plunder case questioned before SC

A BIDA Foundation official facing plunder and corruption charges has asked the Supreme Court to prevent the the Department of Justice (DOJ) from enforcing the hold departure order against him. In a 25-page petition filed on Friday, BIDA Foundation treasurer Emilio Marcelo said Justice Secretary Leila de Lima does not have the authority to issue such order and that his constitutional right to travel must be upheld. He then asked the SC to issue a temporary restraining order (TRO) to bar the DOJ from implementing the hold departure order. Marcelo is among the 41 respondents in the plunder complaint filed against officials of BIDA Foundation and former officials of state-owned gaming firm Philippine Amusement and Gaming Corp. (PAGCOR). The complaint, which was filed by the current PAGCOR leadership, is still under preliminary investigation at the DOJ. The plunder accusation stemmed from the alleged diversion of P186 million in PAGCOR funds to BIDA Foundation, which ran but lost as a party-list group in the May 2010 elections. The first nominee of the group was Sheryl Genuino-See, daughter of then PAGCOR chair Efraim Genuino. The current PAGCOR leadership under chair Cristino Naguiat Jr. said its former officials approved the release of funds to support BIDA Foundation's anti-drug campaign and programs. Naguiat said there was conflict of interest on the part of the erstwhile PAGCOR board members because they also sat as officials in BIDA Foundation. Marcelo's arguments In his petition, Marcelo said that DOJ's issuance of the hold departure order against him was arbitrary because the department has to no authority to do so. Citing Supreme Court circulars and other orders of lower courts, Marcelo said that "only a court of law, the Regional Trial Court, not even a Municipal Trial Court, may lawfully issue a hold departure order, and only in a pending criminal case at that." Marcelo added that the DOJ should not even be investigating the plunder complaint against him and 40 others because the Office of the Ombudsman and its prosecuting arm, the Office of the Special Prosecutor, have the exclusive jurisdiction to handle such complaint. "The DOJ secretary has no jurisdiction to investigate crimes committed by public officers in relation to their office, which falls under the primary exclusive jurisdiction of the Ombudsman and the Special Prosecutor to investigate and prosecute before the Sandiganbayan," said Marcelo. He then underscored that the hold departure order violates his right to travel which is enshrined in Section 6, Article III of the 1987 Constitution. The constitutional provision states that the right to travel shall not be impaired "except in the interest of national security, public safety, or pbulic health, as may be provided by law." Marcelo then said that the issuance of the HDO against him does not fall under these exceptions. He then said the SC should issue a TRO against the hold departure order on the following ground: "The petitioner enjoys freedom to travel under the Constitution which is entitled to protection against the arbitrary and unfounded issuance of the hold departure order in blatant violation of the said constitutional right and the cardinal principle of due process of law." Marcelo also accused the DOJ of hastily and whimsically issuing the order against him in its "excitement" to prosecute respondents in the plunder complaint. "Thus it is in these times of political excitement where the great landmarks of the Constitution appear to have ben forgotten or marred, if not entirely obliterated, by the abusive exercise of power of the Executive branch in railroading the proceedings against the.. petitioner, a mere private citizen, that this petiton is being brought forth before the judicial department with this Honorable Supreme Court at its apex," Marcelo said. Genuinos ask lifting of HDO Before Marcelo lodged his petition with the high court on Friday, Genuino and his two children have already challenged the legality of the DOJ's hold departure order against them. Last Monday, the lawyers for Genuino and children Erwin and Sheryl asked the DOJ to lift the order. In a seven-page letter addressed to DOJ Chief State Counsel Ricardo Paras III, the Genuinos said the issuance of the order violated their right to due process and their constitutional right to travel. They likewise asserted that the DOJ can only issue hold departure orders (HDOs) on matters of national security, public safety, and public health. — RSJ, GMA News