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10 November 2011
Arroyo and the Writ of Ne Exeat
In both the common law and civil law tradition, the sovereign's power to prevent its subjects from departing the realm has been expressed as the power of "ne exeat" or the writ of ne exeat. Ne exeat means "that he not depart." In the long history of "ne exeat", it has been used to prevent subjects from leaving a kingdom without a license from the king, to prevent debtors from leaving the realm without repaying their debts, and to prevent a husband or wife from removing property from the jurisdiction of a court. Most recently, it has been discussed in relationship of the power of a parent to prevent another parent from removing a child from one country to another.
Beames wrote: "this Writ is now mostly used where a suit is commenced in the Court against a Man, and he designing to defeat the other of his just demand, or to avoid the Justice and Equity of this Court, is about to go beyond Sea, or, however, that the Duty will be endangered if he goes."
Nevertheless, the power of ne exeat is something that surely subsists among the recognized powers of the sovereign. What would be the meaning or significance of national boundaries if the price of disobedience is simply a one way airplane or ship fare to another country? The question is what is the extent of that power. In countries where the power of ne exeat continues, it is used in both civil and criminal cases. The state and the courts must have some effective power to bring about justice. I recognize that there must be a balance. The medieval Spanish practice, which remained in the Philippines, until Independence in 1898, of requiring the approval of the parish priest in order to leave one's village, is tyranny. And the international community has established a framework to accept legitimate refugees. It's called the Convention Relating to the Status of Refugees (1951).
But Gloria Macapagal-Arroyo, having been sued on plunder and being investigated for election fraud, cannot be said to be a legitimate refugee under the convention. And considering powerful politicians have many opportunities to thwart the public prosecutor before a matter even makes it before a regular trial judge with the seemingly unlimited interlocutory appeals of simple criminal charges and informations, the process could be used to frustrate the ends of justice.
Next, I have reviewed the medical information disclosed to the public regarding the condition of Macapagal-Arroyo. It appears, that she has been aware of her degenerative disorder for some time. All cases of parathyroid disease is one of very slow degeneration. It is unclear what her reasons were for waiting so long to address the underlying parathyroid problem or why the medical profession in the Philippines cannot address her symptoms. The fact that she creates a medical emergency for herself, does not thereby increase the burden on the public prosecutor to prohibit her from leaving the country.
The standard test for injunctive relief is helpful: what is the likelihood of the prosecutor to prevail on the merits, what is the irreparable harm if the injunction is not granted, does the balance of harms weigh in favor of the prosecutor and would public policy support injunctive relief?
It becomes obvious that if a fugitive is permitted to depart from the jurisdictions of the courts and enter into realms beyond their reach, that will be irreparable harm. It is also true that the case for why Arroyo must go abroad has not been clearly established and so it is difficult to assess what harm, if any, will come to her of the prosecutor's doing. Just because she refuses to get medical treatment in the Philippines and thereby exacerbates her degenerative condition, does not increase the harm to her at the cause of an injunction. Finally, there is a clear public policy in favor of having crimes of public officials like corruption, electoral fraud and plunder be resolved to finality by the courts.
From the standard from an injunction (or a writ of prohibition in some parts), the standards have been met. As is regularly stated, if there is substantial likelihood of irreparable harm, the balance of harms favors the prosecutor and public policy supports the issuance of an injunction, then the question of prevailing on the merits of the case becomes less important. At this point, it would be difficult to meaningfully prove up one's case against Arroyo if the investigation is continuing.
The standards for exercising ne exeat powers is much lower that injunctive relief. So, if an injunction would be appropriate to prohibit travel, as the Secretary of Justice has done administratively with her order, the sovereign would obviously have the power to restrain Arroyo from departing the country through its ne exeat powers.