6/7/2020 E-Library - Information At Your Fingertips: Printer Friendly 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 vs. Presidential Commission on Good Government[111] 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 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 non-observance 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 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. elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/64165 23/70