MR

De Guzman San Diego Mejia & Hernandez

lAW OFFICES

The Penthouse, Paragon Tower Hotel

531 A. Flores Street, Ermita, Manila

September 8, 2011Hon. Ricardo V. Paras III

Chief State Counsel

Department of Justice

Padre Faura, Manila

Re:Reconsideration of DOJ Letter dated August 22, 2011

Mr. Paras:

We refer to your letter dated August 22, 2011 denying our Application to lift Hold Departure Order No. 26 dated May 20, 2009 issued against our client, Mr. John Jacob Philip Van Der Tak, on the following grounds:1. The Allow Departure Orders issued by the Regional Trial Court of Pasig City, Branch 167 and by the Department of Justice in favor of Mr. Van Der Tak cannot serve as basis for the lifting of the HDO issued against him;

2. The attachment of Mr. Van Der Taks properties in Civil Case No. 71940 is not a ground to lift the HDO pursuant to Department Circular no. 41, series of 2010;

3. The fact that Mr. Van Der Tak is not a flight risk cannot be considered as a ground to lift the HDO; and

4. Mr. Van Der Taks constitutional right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the justice system.

In this regard, we are respectfully asking for a reconsideration of your August 22, 2011 letter considering that:

1. The DOJ is not in the best position to issue the HDO against Mr. Van Der Tak.

2. Granting Mr. Van Der Taks Application will not result in any miscarriage of justice;

3. A stringent application of DC No. 41 is not warranted under the circumstances;4. Absent any valid ground that will justify the imposition of the HDO on Mr. Van Der Tak, DC No. 41 cannot prevail over Mr. Van Der Taks Constitutional right to travel.

The DOJ is not in the best position to issue the HDO against Mr. Van Der Tak.

At the outset, it is worth noting that the Whereas clauses of DC No. 41 states that apart from the courts, the Secretary of Justice, as head of the principal law agency of the government mandated to, inter alia, investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services, is in the best position to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individuals right to travel. It bears stressing that the DOJ has no participation whatsoever in Civil Case No. 71940, hence, it cannot be said that it is in the best position to institute measures to prevent any miscarriage of justice.

Even the issuance of an HDO against Mr. Van Der Tak, who is a respondent in a civil case, remains suspect. It is important to note that Supreme Court Circular No. 39-97 12 explicitly provides that hold-departure orders may be issued only in criminal cases, thus:"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."

From the foregoing, while the DOJs authority to issue HDOs in criminal cases could not be questioned, given the fact that it is the executive departments prosecutorial arm, the same cannot be said in civil cases where it has no participation at all.Granting Mr. Van Der Taks Application will not result in miscarriage of justice

As stated in the Application, the apparent purpose of the HDO issued against Mr. Van Der Tak has already been met. To reiterate, Mr. Van Der Tak has submitted his person to the jurisdiction of the RTC and a writ of attachment was issued against, among others, his properties. It bears stressing that the value of the properties attached and garnished by virtue of the writ is more than sufficient to secure the claims of the plaintiff in the civil case against Mr. Van Der Tak. Hence, in the remote event that Mr. Van Der Tak is declared civilly liable, the judgment against him can be fully satisfied even without the HDO. The adverse judgment against him can be executed even without his presence here in the Philippines. In fact, it is in Mr. Van Der Taks interest to see the resolution of the case against him because he has lodged counterclaims against NCCRI. This is one of the reasons why he has returned to the Philippines after being allowed to go to the Netherlands at least five times.

Moreover, the Application likewise raised the fact that Mr. Van Der Tak is not a flight risk, hence, there is no point in maintaining the HDO against him. To reiterate, Mr. Van Der Tak has substantial investment in this country and his family lives here. In the same breath, Mr. Van Der Tak has been allowed to leave the country several times and he returned to the Philippines on all occasions in conformity with the terms and conditions of the Allow Departure Orders issued in his favor. These only prove that maintaining the HDO against Mr. Van Der Tak is pointless and an exercise in futility.Therefore, contrary to the intent behind DC No. 41 empowering this Honorable Office to issue, among others, HDOs, there can be no miscarriage of justice in this case if and when this Honorable Office decides to lift the HDO against Mr. Van Der Tak.A stringent application of DC No. 41 is unwarranted under the circumstances.

Your August 22, 2011 letter stated that xxx assuming that the attached properties are more than sufficient to answer the claims of the plaintiff and/or Mr. Van Der Tak is not a flight risk, the same are immaterial to the instant case because there is nothing in D.C. No. 41, which you invoke in support of your request, which states that attachment of sufficient properties of the alien in the civil case where his presence is required, either as a respondent or as a witness, and/or the fact that he is not a flight risk would warrant the lifting or cancellation of the HDO issued against him.

With due respect to this Honorable Office, the stringent application of DC No. 41 against Mr. Van Der Tak is unwarranted, given the fact that the case filed against him is only civil in nature, his properties have been attached and garnished, and he has proved that he is not a flight risk.

First, there is nothing in DC No. 41 which states that the grounds for lifting an HDO are exclusive. Neither is DC No. 41 a law which should be strictly construed against Mr. Van Der Tak. Since DC No. 41 is a mere issuance by the DOJ, we believe that the good Justice Secretary can exercise her discretion in meritorious cases like Mr. Van Der Taks and lift the HDO against him which, for all intents and purposes, has become moot and academic under the circumstances.Second, with due respect to this Honorable Office, the above-quoted interpretation constitute a very stringent application of DC No. 41. Surely, the Whereas clauses of DC No. 41 reveal the intent behind the issuance of the same, that is, to institute measures to prevent any miscarriage of justice. As argued above, no miscarriage of justice will take place if and when this Honorable Office decides to lift the HDO against Mr. Van Der Tak. On the contrary, lifting the HDO will serve the interests of justice, as it restores Mr. Van Der Taks freedom of movement and constitutional right to travel, which are guaranteed by the 1987 Constitution, as well as by the Universal Declaration of Human Rights and the Convention on Civil and Political Rights. Department circulars like DC No. 41 which affect a persons constitutional rights, just like laws, are dedicated to mitigate the inhumaties of humanity against humanity. While they are conceived by human ingenuity, the human intellect and the human mind, they are tempered by the human conscience and guarded by the yearnings of the human heart. Therefore, strict legalism has no place in their interpretation; on the contrary, their strictest theory of regimentation must be founded on the dictates of the guiding soul, compassion, and most of all, justice.

From all the foregoing, undersigned counsel respectfully submits that the stringent application of DC No. 41 in Mr. Van Der Taks case, civil in nature, is unwarranted, unnecessary and contradictory to the vagrant demands of what is right and what is just. Absent any valid ground that will justify the imposition of the HDO on Mr. Van Der Tak, DC No. 41 cannot prevail over Mr. Van Der Taks Constitutional right to travel

Your August 22, 2011 letter quoted a portion of Section 6, Article III of the 1987 Constitution, to wit:xxx 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.

Interestingly, it would appear that there is no law granting this Honorable Office power to impair Mr. Van Der Taks right to travel. While undersigned counsel reserves the right to question the constitutionality of DC No. 41, we will limit the discussion to what was stated in your August 22, 2011 letter.

Based on the considerations stated above, there are no valid grounds that will justify the retention of the HDO against Mr. Van Der TaK. Even your August 22, 2011 letter failed to allege any reason that will validate the continued impairment of Mr. Van Der Taks constitutional right to travel.

Your August 22, 2011 letter then quoted the case of Marcos vs. Sandiganbayan, to wit: a persons right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the justice system.

The question that begs to be answered is: how can the lifting of the HDO against Mr. Van Der Tak militate against the very necessity of safeguarding the justice system.? At the risk of being repetitive, undersigned counsel wishes to stress that there will be no miscarriage of justice if and when the HDO against Mr. Van Der Tak is lifted. The case can proceed without Mr. Van Der Taks physical presence. In fact, even if Mr. Van Der Tak loses in this case, the claims of NCCRI are sufficiently safeguarded with Mr. Van Der Taks attached and garnished properties. Hence, justice can still be served even without the subject HDO.To repeat, Mr. Van Der Tak should be allowed to travel without any constraint to the Netherlands because to deprive him of this right would unjustly result in undue economic hardship on his part. Mr. Van Der Tak maintains several business engagements in the Netherlands which require his constant supervision and attention. Social justice therefore dictates that Mr. Van Der Tak should be allowed to attend to his business ventures in the Netherlands. Finally, your August 22, 2011 letter suggests that Mr. Van Der Tak has a speedy remedy if he intends to travel abroad for some valid reasons. Section 7 of D.C. No. 41 provides for the procedure for securing an ADO if he intends to leave the country. With due respect, describing the process of securing an ADO as speedy is a great understatement. The process of securing a travel clearance from the RTC alone can take days, even weeks. Then Mr. Van Der Tak will have to forward the travel clearance to the DOJ for the processing of the ADO. That will take several more days, even weeks. Then the DOJ will forward the ADO to the Bureau of Immigration and Deportation, which will also issue an ADO of its own. That will entail another week or so. Hence, it will take Mr. Van Der Tak at least a month to secure ADOs from both the DOJ and the BID. This process is hardly speedy, considering that Mr. Van Der Taks presence in the Netherlands is usually necessitated by urgent matters and business concerns that require his prompt attention and presence. To be blunt, Mr. Van Der Tak had to cancel his flight to the Netherlands the last time around because the ADO he requested has not yet been processed. Further, the processing of the ADOs has also proved to be costly on the part of Mr. Van Der Tak. It bears stressing that Mr. Van Der Tak has to pay certain fees for the issuance of the ADOs. Given the frequency of Mr. Van Der Taks recent travels, these expenses have also become a burden for him.

Thus, the HDO issued against Mr. Van Der Tak has been causing him and his business ventures in the Netherlands undue hardship. With due respect, undersigned counsel submits that the HDO issued against Mr. Van Der Tak has already become moot and academic, given the fact that the claims of NCCRI have been amply secured by Mr. Van Der Taks properties. Hence, maintaining the HDO against Mr. Van Der Tak is senseless, unnecessary, and unjust.

From all the foregoing, undersigned counsel respectfully requests that this Office reconsider its letter dated August 22, 2011 and lift the HDO dated May 29, 2009 against Mr. Van Der Tak.

This Honorable Offices prompt and favorable action on this request will be greatly appreciated.

Very truly yours,

De Guzman San Diego Mejia & Hernandez

Law Offices

(GSMH Law)

Michael P. Mejia

Ralph David D. So

Hereafter, August 22, 2011 letter.

Hereafter, HDO.

Hereafter, Application.

Hereafter, Mr. Van Der Tak.

Hereafter, RTC.

Hereafter, DOJ.

Hereafter, DC No. 41.

Hereafter, ADO.

Emphasis supplied.

G.R. No. 115132, August 9, 1995.

Hereafter, BID.

counsel@gsmhlaw.com

Telephone: +632.400.4764

Facsimile: +632.400.1307

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