right to travel philippine jurisprudence

PROJECT JURISPRUDENCE

The right to travel is not absolute.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as maybe provided by law.

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party.[5]

On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase "and changing the same" is taken from the 1935 version; that is, changing the abode. The addition of the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether the rights be impaired on order of a court or without the order of a court, the impairment must be in accordance with the prescriptions of law; that is, it is not left to the discretion of any public officer.[8]

Section 5, 1973 Constitution: The  liberty of abode and of travel  shall not, be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health. (Emphasis ours)

MR. NOLLEDO. x x x x My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that the liberty of abode shall not be impaired except upon lawful order of the court or - underscoring the word "or" - when necessary in the interest of national security, public safety or public health. So, in the first part, there is the word "court"; in the second part, it seems that the question rises as to who determines whether it is in the interest of national security, public safety, or public health. May it be determined merely by administrative authorities? FR. BERNAS. The understanding we have of this is that, yes, it may be determined by administrative authorities provided that they act, according to line 9,  within the limits prescribed by law . For instance when this thing came up; what was in mind were passport officers. If they want to deny a passport on the first instance, do they have to go to court? The position is, they may deny a passport provided that the denial is based on the limits prescribed by law. The phrase " within the limits prescribed by law " is something which is added here. That did not exist in the old provision.[10]

MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11. Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin ang walang pakundangang paglabag sa liberty of abode sa ngalan ng national security at pagsasagawa ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang "hamletting" upon lawful order of the court. x x x. x x x x MR. RODRIGO. Aside from that, this includes the right to travel? FR. BERNAS. Yes. MR. RODRIGO. And there are cases when passports may not be granted or passports already granted may be cancelled. If the amendment is approved, then passports may not be cancelled unless it is ordered by the court. Is that the intention? x x x x FR. BERNAS. Yes MR. RODRIGO. But another right is involved here and that is to travel. SUSPENSION OF SESSION FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty of abode and or changing the same from the right to travel, because they may necessitate different provisions. THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended. x x x x RESUMPTION OF SESSION x x x x THE PRESIDING OFFICER (Mr. Bengzon). Commissioner Bernas is recognized The session is resumed. FR. BERNAS. The proposal is amended to read: The liberty of abode and of changing the same within the limits prescribed by law, shall not be impaired except upon lawful order of the court. NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH AS MAYBE PROVIDED BY LAW. THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as amended. Is there any objection? (Silence) The Chair hears none; the amendment, as amended, is approved.[11]

Some of these statutory limitations [to the right to travel] are the following: 1] The Human Security Act of 2010 or [R.A.] No. 9372. The law restricts the right to travel of an individual charged with the crime of terrorism even though such person is out on bail. 2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen. 3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions thereof, the [Bureau of Immigration], in order to manage migration and curb trafficking in persons, issued Memorandum Order Radir No. 2011-011, allowing its Travel Control and Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking" from our ports. 4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA) may refuse to issue deployment permit to a specific country that effectively prevents our migrant workers to enter such country. 5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement of an individual against whom the protection order is intended. 6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption Board may issue rules restrictive of an adoptee's right to travel "to protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child."[14]

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Right to travel, hold departure order

Published 13 September 2019, The Daily Tribune

Section 6, Article III of the Constitution provides that the “liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as maybe provided by law.”

Our right to travel is held to be part and parcel of our freedom of movement guaranteed under our Constitution. Nevertheless, this freedom is not absolute, and may be restricted in the interest of national security, public safety or public health.

As early as in the case of  Silverio v. Court of Appeals (G.R. No. 94284, 28 April 1991),  the Supreme Court had clarified that holding an accused in a criminal case within reach of the courts by preventing his departure from the Philippines is considered a valid restriction on his right to travel so that he may be dealt with in accordance with law.

While the rule then was clear that a person facing a criminal charge pending before a trial court may be prevented departure from the country, it was unclear whether one may be restrained to leave the country before he is formally charged in courts,  i.e.,  during preliminary investigation proceedings.

To address this supposed conundrum, the Department of Justice (DOJ) issued in the past several circulars, namely, DOJ Circular No. 17 dated 19 March 1998, DOJ Circular No. 18 dated 23 April 2007 and the consolidated version, DOJ Circular No. 41, empowering the Secretary of Justice to issue Hold Departure Orders (HDO) and Watchlist Orders (WLO), to prevent a person subject of a criminal complaint from leaving the country.

We may recall in 2011 that the same circular, DOJ Circular No. 41, was invoked by then DOJ Secretary (now Senator) Leila De Lima to prevent then President Gloria Arroyo from flying to Singapore for medical treatment, who was then charged with electoral sabotage. The incident sparked a huge controversy.

Later, in  Genuino v. De Lima,  docketed as G.R. No. 197930, promulgated on 17 April 2018, the Supreme Court struck down DOJ Circular No. 41 as unconstitutional as it violates one’s constitutional right to travel, and that there is no law which authorizes the Secretary of Justice to issue HDOs, WLOs, or allow departure orders (ADO).

In said ruling, the Supreme Court further emphasized that the power to issue HDO is “inherent to the courts”, and it “does not require legislative conferment or constitutional recognition”; it co-exists with the grant of judicial power.”

Consequent to said ruling, the Supreme Court, on 07 August 2018, issued a Resolution in  Administrative Matter No. 18-07-05-SC, or the Rule on Precautionary Hold Departure Order,  whereby a respondent in a criminal complaint may now be legally barred from leaving the country upon application with, and issuance of a precautionary hold departure order (PHDO) by the courts.

As defined under the rule, a PHDO is “an order in writing issued by a court, commanding the Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from the Philippines which shall be issued  ex-parte  in cases involving crimes where the minimum of the penalty prescribed by law is at least six years and one day or when the offender is a foreigner regardless of the imposable penalty.”

The pertinent points of this new rule are the following: (a) the PHDO is applicable to crimes where the minimum penalty prescribed by law is  at least  six years and one day, or the offender is a foreigner regardless of the imposable penalty; (b) the PHDO may be issued  ex parte,  or without the knowledge and participation of the respondent(s); (c) the PHDO may be applied by a prosecutor with any regional trial court within whose territorial jurisdiction the alleged crime was committed, or for compelling reasons, with any regional trial court within the judicial region where the crime was committed if the place of the commission of the crime is known; (d) the PHDO may also be applied with the regional trial courts in the City of Manila, Quezon City, Cebu City, Iloilo City, Davao City and Cagayan de Oro City based on complaints instituted by the National Bureau of Investigation regardless where the alleged crime was committed; (e) the application by the investigating prosecutor shall be upon motion of the complainant and upon a preliminary determination of probable cause based on the complaint and attachments thereof; (f) the PHDO shall be issued upon personal determination by the judge, in whose court the application is filed, that probable cause exists, and there is a high probability that respondent will depart from the Philippines to evade arrest and prosecution of crime against him or her; (g) upon a finding of probable cause, the PHDO shall issue, and the judge shall direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports; (h) the probable cause for the purpose of issuing the PHDO shall be without prejudice to the resolution of the investigating prosecutor of the criminal complaint; (i) the dismissal of the criminal complaint, however, may be used by the respondent as a ground for the lifting of the PHDO; and (j) the respondent may file a verified motion before the issuing court for the temporary lifting of the PHDO based on a meritorious ground and upon posting of a bond.

Verily, this new rule is a good development in our criminal prosecution system. At the heart of it is the need to balance the right to travel of the individual and the right of the State to prosecute offenses. As the saying goes, “one’s right ends when another’s right begins.” With the new rule, the striking of this balance is now left with the courts to determine.

For comments and questions, please send an email to [email protected].

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Constitutional Law Chapter VIII – The Constitutional Right to Travel

Posted by Magz

CONSTITUTIONAL LAW

CHAPTER VIII – THE CONSTITUTIONAL RIGHT TO TRAVEL

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. 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.

NOTE: THE APPLICABLE PROVISION OF THE HUMAN SECURITY ACT ON THE RIGHT TO TRAVEL

Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:

• Detained under house arrest;
• Restricted from traveling; and/or
• Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.

Upon application of the prosecutor, the suspect’s right to travel shall be limited to the municipality or city where he resides or where the case is pending, in the interest of national security and public safety. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of the bail which shall then be forfeited as provided in the Rules of Court.

These restrictions shall be terminated upon acquittal of the accused; or the dismissal of the case filed against him; or earlier upon the discretion of the court or upon motion of the prosecutor.

1. The constitutional as well as human right to travel,    129 SCRA

FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS, ET AL., G.R. NO. 88211, September 15, 1989 and the Resolution of the Motion for Reconsideration dated  October 27, 1989

Right to travel; liberty of abode and “right to return”

This is a petition for mandamus and prohibition asking the Supreme Court to Order the respondents to issue travel documents to the petitioners and to enjoin the implementation of the President’s decision to bar their return to the Philippines.

The case for the petitioners is founded on the assertion that their right to return to the Philippines is guaranteed by the following provisions of the Constitution:

Section 1. No person shall be deprived of life liberty or property without due process of law, nor shall any person  be denied equal protection of the laws.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except in the interest of national security, public safety or public health, as may be provided by law.

The petitioners contend that the President has no power to impair the liberty of abode of the Marcoses because only the Courts may do so “within the limits prescribed by law”. Nor may the President impair the right to travel because no law has authorized her to do so.

Also, the petitioners claim that under international law, particularly the Universal Declaration of Humjan Rights guaranteed the right of the Marcoses to return to the Philippines. Thus:

Art. 13 (1) Everyone has the right to freedom of movement and residence within the borders  of each state.

(2) Everyone has the right to leave any country, including his own, AND TO RETURN TO HIS COUNTRY.

Likewise, under the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:

4) No one shall be arbitrarily deprived of the right to enter his own country.

The respondents argue that the issue in this case involves a political question which is therefore beyond the jurisdiction of the Court. Furthermore, they argue that the right of the state to national security prevails over individual rights, citing Section 4, Art. II of the 1987 Philippine Constitution.

Whether or not, in the exercise of the powers granted in the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

The sub-issues, which could help in the determination of the main issue, are:

1. Does the President have the power to bar the Marcoses to return to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former Pres. Marcos and his family from returning to the Philippines, in the interest of national security, public safety or public health, has the President made a finding that the return of the petitioners to the Philippines is a clear and present danger to national security, public welfare or public health. And if she has made that finding, have the requirements of due process been complied with in making such finding? Has there been prior notice to the petitioners?

It must be emphasized that the individual right involved in this case is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel connote. Essentially, the right to return to one’s country, a totally distinct right under international law, independent  from, though related to the right to travel. Thus, even the Universal declaration of Human Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of the state, the right to leave a country and the right to enter one’s country as separate and distinct rights.

THE RIGHT TO RETURN TO ONE’S COUNTRY IS NOT AMONG THE RIGHTS SPECIFICALLY GUARANTEED BY THE BILL OF RIGHTS, WHICH TREATS ONLY OF THE LIBERTY OF ABODE AND THE RIGHT TO TRAVEL, BUT IT IS OUR WELL-CONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW, UNDER OUR CONSTITUTION, IS PART OF THE LAW OF THE LAND.

To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the  President’s RESIDUAL POWER to protect the general welfare of the people .

The court cannot close its eyes to present realities and pretend that the country is not besieged by the insurgency, separatist movement in Mindanao, rightist conspiracies to grab power, etc. With these before her, the President cannot be said to have acted arbitrarily, capriciously and whimsically.

Lastly, the issue involved in the case at bar is not political in nature since under Section 1, Art. VIII of the Constitution, judicial power now includes the duty to “determine whether or not  there has been a grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or instrumentality of the government.”

The main opinion was concurred in by 7 justices (CJ Fernan,  Narvasa, Melencio-Herrera, Gancayco, Grino-Aquino, Medialdea and Regalado) or a total of 8 justices in voting in favor of DISMISSING the petition. Seven justices filed separate dissenting opinions (Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin and Sarmiento).

***********************

Gutierrez, Jr., J., dissenting.

With all due respect for the majority in the Court that the main issue in this case is not one of power but one on RIGHTS. If he comes home, the government has the power to arrest and punish him but does it have the power to deny him his right to come home and die among familiar surroundings? x x x The government has more than ample powers under existing laws to deal with a person who transgresses the peace and imperils public safety. BUT THE DENIAL OF TRAVEL PAPERS IS NOT ONE OF THOSE POWERS BECAUSE THE BILL OF RIGHTS SAY SO. THERE IS NO LAW PRESCRIBING EXILE IN FOREIGN LAND AS THE PENALTY FOR HURTING THE NATION.

1. The fears expressed by its representatives were based on mere conjectures of political and economic destabilization without any single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist “factual bases for the President’s decision” to bar Marcos’s return. That is not my recollection of the impressions of the Court after the hearing.

2. Silverio vs. CA, April 8, 1991

1. Caunca vs. Salazar, 82 Phil. 851

2. Kwong vs. PCGG, December 7,l987

3. Manotoc vs. CA, 142 SCRA 149

1.   Petitioner Ricardo Manotoc, Jr. has 6 criminal cases for estafa pending against him. In said cases he was admitted to bail with the FGU Insurance Corporation as surety.

He is also involved in a case pending before the Securities and Exchange Commission.

2.   The SEC requested the Commissioner on Immigration not to clear petitioner for departure pending disposition of the case involving him. The same was granted by the Commissioner.

3.   Petitioner subsequently filed before the trial courts a motion entitled “motion for permission to leave the country” stating as ground therefor his desire to go to the United States, “relative to his business transactions and opportunities”.

4.   The motion was denied by the lower courts and the matter was elevated to the Court of Appeals which also denied the same. Petitioner brings the matter to the S.C. claiming his constitutional right to travel and also contending that having been admitted to bail as a matter of right, neither the courts which granted him bail nor the SEC would have jurisdiction over his liberty.

Petition denied.

a.   A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel.

b.   “x  x  x the result of the obligation assumed by appellee to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit the accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction.” (People vs. Uy Tuising, 61 Phil. 404 (l935)

c.   To allow the petitioner to leave the Philippines without sufficient reason would place him beyond the reach of the courts.

d.   Petitioner cites the Court of Appeals case of People vs. Shepherd (C.A.-G.R. No. 23505-R, Feb. 13, 1980) as authority for his claim that he could travel. The S.C. held however that said case is not squarely on all fours with the case at bar. Unlike the Shepherd case, petitioner has failed to satisfy the courts of the urgency of his travel, the duration thereof, as well as the consent of his surety to the proposed travel.

e.   It may thus be inferred that the fact that a criminal case is pending against an accused does not automatically bar him from travelling abroad. He must however convince the courts of the urgency of his travel, the duration thereof, and that his sureties are willing to undertake the responsibility of allowing him to travel.

4. Villavicencio vs. Lukban, 39 Phil. 778

5. Roan vs. Gonzales, supra.

6. Salonga vs. Hermoso, 97 SCRA 121

7. Read also the Ferdinand Marcos Cases of August         & October, 1989

Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law , University of the Cordilleras

Baguio City

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Posted on May 13, 2011, in Constitutional Law and tagged Constitutional Law Chapter VIII - The Constitutional Right to Travel . Bookmark the permalink . 2 Comments .

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can we ask if we have rights regarding the imigration officers uploading tourists in the airport denying them of their flights regardless of them having complete documents. they just ask too much about relationships of sponsors. which consumes our tickets to be voided regardless of the documents prepared. is it a violation of article 13. chapter vIII. thank you this will help a lot of people specialy us un brunei. im an ofw wanting to sponsor my cousin here.

I also want to ask about the immigration, I was one of those people who got offloaded twice, and I booked my flight on this saturday, I got offloaded because they say I’m not part of the 4th civil degree, so they asked to bring the NSO at least of my great grandparents, because the one whose sponsoring me is my aunt(1st cousin of my mother), so I let them pass, I went home, and when I went to our municipal hall, they say that late registration of those people (great grandparents which is obviously long gone) will take months for me to get it.. And before I get that, my tourist visa will get expire this january, Is the immigration violating my right to travel?, because, I am financially capable of travelling, but they keep offloading me, What I just want is to spend the holidays with my aunt..Please reply immediately, I need the answer badly.Thank you

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• Liberty Of Abode And The Right To Travel | Constitutional Rights

by  RALB Law

In this article, we shall delve on the constitutional rights of a person with respect to his liberty of abode and right to travel. When we usually talk about our freedom, it is usually the liberty to go from one place to another that is usually being talked about; the right to travel.

We, as free people, have the right to go where we want, of course, with certain limitations. As it follows, we also have the right to choose our own residence and to leave said space whenever we like. It is the most common indication of our liberty, of our freedom. More than anything, the liberty of abode and travel seems to be more than just a right but is also a privilege.

The liberty of abode and travel is enshrined in the Bill of Rights of the 1987 Constitution :

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. 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. (( Section 6, Article III, 1987 Constitution ))

The said right to choose one’s own residence and the right to travel are guaranteed in, and by, the supreme law of the land, the Constitution. It is safeguarded by the virtue of the due process clause and said Section 6 highlights the necessity of their importance in our society.

But that is not often the case. In other tyrannical states or circumstances, a person may not choose his own residence. Worse, he does not get any at all or he will be forced to move away from his residence. In times of war, the right to travel may be halted or one may be moved from a place without his consent.

Hence, the Constitution has enforced full protection of said rights for its citizens.

When can the right to travel be restricted?

As with all the other rights, said liberty of abode and travel are with certain limitations. Pursuant to said Section 6 of the Bill of Rights, the liberty of abode can be limited upon lawful order of the court and said right to travel to protect the interest of national security, public safety, or public health, as may be provided by law.

One of the common exemptions in the liberty of abode and the right to travel is a person in custody of the law or a person that is facing charges that may be restrained by authority or a court.

A lessee who has not been paying his monthly dues may be ejected from his residence by not fulfilling his contractual obligations.

During the COVID-19 pandemic, the liberty of abode and travel was affected. People who were infected cannot go to their own residence and must be admitted to quarantine facilities to not contaminate the other people in the household. Also, domestic and international travels had been regulated given the circumstances.

Those that have comorbidities and of young age are not permitted to travel due to the travel restrictions imposed by the government. The government has the power to limit the exercise of these rights if it is for the interest of national security, public safety, or public health, as may be provided by law.

In Yap vs. Court of Appeals,(( G.R. No. 141529, June 6, 2001 )) the Supreme Court said that “the right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states: (( Ibid. ))

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. 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.” (( Ibid. ))

In Genuino vs. De Lima,(( G.R. No. 197930, April 17, 2018 )) the Supreme Court said that the right to travel is part of the “liberty” of which a citizen cannot be deprived without due process of law. It is part and parcel of the guarantee of freedom of movement that the Constitution affords its citizens. Liberty under the foregoing clause includes the right to choose one’s residence, to leave it whenever he pleases and to travel wherever he wills. (( Ibid. ))

Thus, Zacarias Villavicencio vs. Justo Lucban,(( G.R. No. L-14639, March 25, 1919 )) the Court held illegal the action of the Mayor of Manila in expelling women who were known prostitutes and sending them to Davao in order to eradicate vices and immoral activities proliferated by the said subjects. It was held that regardless of the mayor’s laudable intentions, no person may compel another to change his residence without being expressly authorized by law or regulation. (( Ibid. ))

It is apparent that the right to travel is not absolute. There are constitutional, statutory and inherent limitations regulating the right to travel.

In Silverio vs. Court of Appeals,(( G.R. No. 94284, April 8, 1991 )) the Court elucidated, thus:

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of “national security, public safety, or public health” and “as may be provided by law,” a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party. (( Ibid. ))

In addition to the pronouncements in Genuino vs. De Lima,(( Supra. )) the Court also said that:

Clearly, under the provision, there are only three considerations that may permit a restriction on the right to travel: national security, public safety or public health. As a further requirement, there must be an explicit provision of statutory law or the Rules of Court providing for the impairment. The requirement for a legislative enactment was purposely added to prevent inordinate restraints on the person’s right to travel by administrative officials who may be tempted to wield authority under the guise of national security, public safety or public health. This is in keeping with the principle that ours is a government of laws and not of men and also with the canon that provisions of law limiting the enjoyment of liberty should be construed against the government and in favor of the individual. (( Ibid. ))

Statutory Limitations on the Right to Travel

In Leave Division, OCA vs. Heusdens ,(( A.M. No. P-11-2927, December 13, 2011 )) a case stemmed from the leave application for foreign travel sent through mail by Heusdens (respondent). Records disclose that the Employees Leave Division of OCA received respondent’s leave application for foreign travel but Huesdens left for abroad without waiting for the result of her application.(( Ibid. ))

It turned out that no travel authority was issued in her favor because she was not cleared of all her accountabilities as evidenced by the Supreme Court Certificate of Clearance. The OCA recommended the disapproval of respondent’s leave application.(( Ibid. ))

It further advised that respondent be directed to make a written explanation of her failure to secure authority to travel abroad in violation of OCA Circular No. 49-2003. Chief Justice Puno approved the OCA recommendation. Eventually, OCA filed an administrative complaint against Heusdens. Subsequently, it arrived at the Supreme Court.(( Ibid. ))

The Court said that the exercise of one’s right to travel or the freedom to move from one place to another, as assured by the Constitution, is not absolute. (( Ibid. ))

There are constitutional, statutory and inherent limitations regulating the right to travel. Section 6 itself provides that “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.” Some of these statutory limitations are the following: (( Ibid. ))

1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law restricts the right to travel of an individual charged with the crime of terrorism even though such person is out on bail. (( Ibid. ))

2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen. (( Ibid. ))

3] The “Anti- Trafficking in Persons Act of 2003” or R.A. No. 9208 . Pursuant to the provisions thereof, the Bureau of Immigration, in order to manage migration and curb trafficking in persons, issued Memorandum Order Radjr No. 2011-011,12 allowing its Travel Control and Enforcement Unit to “offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking” from our ports. (( Ibid. ))

4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA) may refuse to issue deployment permit to a specific country that effectively prevents our migrant workers to enter such country. (( Ibid. ))

5] The Act on Violence against Women and Children or R.A. No. 9262 . The law restricts movement of an individual against whom the protection order is intended. (( Ibid. ))

6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption Board may issue rules restrictive of an adoptee’s right to travel “to protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child.” (( Ibid. ))

The Supreme Court took the liberty to enumerate some of the statutory limitations on the right to travel contemplated in Section 6 of the Bill of Rights.

In SPARKS vs. Quezon City,(( August 8, 2017, G.R. No. 225442 )) after the pronouncement of President Duterte to implement a nationwide curfew for minors, several local governments in Metro Manila started to strictly implement their curfew ordinances on minors through police operations.

Petitioners assail the constitutionality of the said Curfew Ordinances based on the minors’ right to travel. They claim that the liberty to travel is a fundamental right, which, therefore, necessitates the application of the strict scrutiny test.

The Supreme Court ruled that:

“Jurisprudence provides that this right refers to the right to move freely from the Philippines to other countries or within the Philippines. It is a right embraced within the general concept of liberty. Liberty – a birthright of every person – includes the power of locomotion and the right of citizens to be free to use their faculties in lawful ways and to live and work where they desire or where they can best pursue the ends of life. The right to travel is essential as it enables individuals to access and exercise their other rights, such as the rights to education, free expression, assembly, association, and religion.” (( Ibid .))

Final Thoughts

The freedom guaranteed by the Constitution should be available to the populace in a democratic nation. They ought to have unrestricted access to these rights, save in those instances which the law validly limits the exercise thereof.

One of them is the freedom to live and go anywhere. A basic right guaranteed by the Constitution is the freedom to select one’s own abode and to leave it at any time, as well as the freedom to move about the Philippines at will.

Nevertheless, it is important to remember that these rights are not absolute and sometimes do not apply. These privileges are not unqualified. They may have restrictions based on what the law may require.

RALB Law | RABR & Associates Law Firm

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> The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. 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.

I'd argue the law here is absolute. To argue otherwise would be necessary to justify illegal regulations such as LTO, Highway Patrol, checkpoints, and illegal confiscation of property, ART III, Sec. 9.

If a convicted criminal is being hauled somewhere against the freedom to travel it is because they are a threat to public safety established on REAL EVIDENCE by the court; totally within ART III, Sec 6.

If a person is quarantined, for public safety, there better be FACTUAL evidence provided by the court to justify the segregation, unlike the country-wide lock downs during 2020-2022 based on bogus, made up, and unscientific information. Why did the FLU count drop to nothing in 2020, for example?

When asking the governor of Negros Oriental where the data is to justify a lock-down I was blocked. There seems to have been a side-step of the due process of law to push these unconstitutional lock downs. If there was proper and scientific reasons to limit our travel then the data should be verifiably transparent.

Taxing the civilians because they aren't wearing helmets, licensed, wearing pants, or driving a registered vehicle have absolutely nothing to do with public safety, unless they are court ordered to withdraw travel for being reckless and an endangerment to others.

If public safety was a concern wouldn't we start covering open storm ditches adjacent to roadways, fill potholes in roads, remove fastfood joints for causing illnesses in people, and reduce dangers of sharp objects on pathways and sidewalks like unfinished rebar work?

To tax the poor man for his need to travel to and from his work to survive while letting the 4 wheeled vehicles pass on is not only an attack on the Philippine constitution, but an attack on the lower class. Surely it's easy to fleece the poor because they're unfamiliar with rights.

Thanks for the cases. I hope it's okay to borrow some that favor the freedom of travel. I hope to lobby for the freedom to travel and get as many people together to actually make a real dent the country's slipping away from the Constitution.

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• Jul 12, 2023

On Risks and Rights: Examining the Rule on Precautionary Hold Departure Orders

The right to travel is a constitutional liberty which citizens cannot be deprived without due process of law. It is part and parcel of the guarantee of freedom of movement that the Constitution affords its citizens. [1] Section 6, Article III of the 1987 Constitution prohibits the impairment of the right to travel, except in the interest of national security, public safety, or public health, as may be provided by law. [2]

In the same vein, Article 13 of the Universal Declaration of Human Rights (UDHR), to which the Philippines is a signatory, states that everyone has a right to freedom of movement and residence within the borders of each state, and that everyone has the right to leave any country including his own, and to return to his country. [3]

Like other rights, however, the right to travel is not absolute. Our jurisdiction recognizes constitutional, statutory, and inherent limitations to such right, among which is the Precautionary Hold Departure Order (“PHDO”).

Nature of the PHDO

A.M. No. 18-07-05-SC or the Rule on Precautionary Hold Departure Order defines a PHDO as a court order commanding the Bureau of Immigration (“BI”) to prevent any attempt by a person suspected of a crime to depart from the Philippines. [4] A PHDO issues only upon determination by the judge that probable cause exists and there is a high probability that the respondent will depart from the Philippines to evade arrest and prosecution of crime. [5]

A PHDO, which is applied, ex parte, may be issued in the following cases: a) involving crimes where the minimum of the penalty prescribed by law is at least six (6) years and one (1) day; b) or when the offender is a foreigner regardless of the imposable penalty. [6]

The investigating prosecutor files a PHDO in the name of the People of the Philippines before any regional trial court (“RTC”) within whose territorial jurisdiction the alleged crime was committed. For compelling reasons, the PHDO can be applied in any RTC within the judicial region where the crime was committed if the place of the crime is known. [7]

The application for a PHDO is preceded by a motion by the complainant in a criminal complaint filed before the office of the city or provincial prosecutor, and a preliminary determination of probable cause based on the complaint and attachments. [8] Such application shall be accompanied by the complaint-affidavit and its attachments, personal details, passport number, and a photograph of the respondent, if available. [9]

PHDO and preliminary investigation

The rules provide that since the finding of probable cause by the judge is solely based on the complaint and is specifically issued for the purpose of issuing the PHDO, the same shall be without prejudice to the resolution of the prosecutor of the criminal complaint considering the complaint-affidavit, counter-affidavit, reply-affidavit, and the evidence presented by both parties during preliminary investigation. [10]

If after preliminary investigation the prosecutor dismisses the complaint for lack of probable cause, the respondent may then use the dismissal as ground for the lifting of the PHDO. In contrast, if the prosecutor finds probable cause and files the criminal information, the case with the court that issued the PHDO shall be consolidated with the court where the criminal information is filed, upon motion by the prosecutor. [11]

As to the respondent’s remedy, he or she may file a verified motion before the issuing court for the temporary lifting of PHDO on a meritorious ground that, based on the complaint-affidavit and the evidence he or she will present, there is doubt that probable cause exists to issue the PHDO, or it is shown that he or she is not a flight risk. [12] Before the lifting of the PHDO is granted, the respondent must post a bond.

Judicial scrutiny

A PHDO has serious implications to one’s constitutional liberty in general, and right to travel in particular. As such, litigants have over the years assailed hold departure orders of whatever form, putting into issue its propriety and legality.

In Genuino vs. De Lima, the High Tribunal declared as unconstitutional Department of Justice (“DOJ”) Circular No. 41 issued by then Acting DOJ Secretary Alberto C. Agra, which governed the issuance and implementation of Hold Departure Orders (HDOs), Watch-list Orders (WDOs), and Allow-Departure Orders (ADOs). The Court ruled that the Secretary of Justice does not have the authority in issuing regulations that curtail the right to travel, as the same could only be done through a legislative enactment. As elucidated by the Supreme Court:

[T]here are only three considerations that may permit a restriction on the right to travel: national security, public safety or public health. As a further requirement, there must be an explicit provision of statutory law or the Rules of Court providing for the impairment. The requirement for a legislative enactment was purposely added to prevent inordinate restraints on the person's right to travel by administrative officials who may be tempted to wield authority under the guise of national security, public safety or public health. This is in keeping with the principle that ours is a government of laws and not of men and also with the canon that provisions of law limiting the enjoyment of liberty should be construed against the government and in favor of the individual. [13]

Ruling that the issuance of DOJ Circular No. 41 has no legal basis, the Court further ratiocinated:

The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO can take the place of a law that authorizes the restraint in the right to travel only in the interest of national security, public safety or public health. The DOJ Secretary has recognized himself as the sole authority in the issuance and cancellation of HDO or WLO and in the determination of the sufficiency of the grounds for an ADO. The consequence is that the exercise of the right to travel of persons subject of preliminary investigation or criminal cases in court is indiscriminately subjected to the discretion of the DOJ Secretary. [14]

In fine, the pronouncements of the Court in Genuino reveal that the restraint of one’s right to travel through the issuance of an HDO or WLO cannot be left to the unbridled discretion of the Secretary of Justice. This affirms the safeguards enshrined in our fundamental law, the primacy of the Bill of Rights that takes precedence over the State’s right to prosecute. [15]

Months after the decision in Genuino , the Court promulgated the Rule on PHDO which serves as a remedy formulated to fill in the vacuum created by the declaration of nullity of DOJ Circular No. 41. [16] The Court shed light on the rationale of the Rule on PHDO in Garcia vs. Sandiganbayan:

With the declaration of nullity of DOJ Circular No. 41 which stripped off the Secretary of Justice of self-imposed authority to issue HDOs, it becomes more imperative for the courts to use their inherent powers to prevent miscarriage of justice. It was in response to this need that A.M. No. 18-07-05-SC was issued . Specifically, it authorizes the issuance of a precautionary HDO even prior to the filing of an information in court when justified under the circumstances . This recognizes the fact that the processes leading to the filing of a case usually take a while before they are concluded such that by the time the information is filed in court, the accused may have already left the country and is now beyond the reach of courts. This renders futile the processes taken up prior to the filing of information and stalls the administration of justice until the accused is brought to the jurisdiction of the court. The issuance of a precautionary HDO cures this predicament. [17]

In this case, the High Tribunal emphasized that the power of the courts, including the Sandiganbayan, to issue HDOs is an exercise of the court's inherent power to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused . [18] The Court declared that these inherent powers are innate and essential faculties that are fundamental to the constitution of an effective judicial system. They are integral to the creation of courts. They do not require legislative conferment or constitutional recognition; they co-exist with the grant of judicial power. [19]

Finally, the Court in Garcia acknowledged the “complementary” relationship of an HDO to the concept of bail in criminal proceedings, in such a way that the issuance of an HDO puts the Bureau of Immigration on notice that a certain person is charged before the courts of law and must not be allowed to leave our jurisdiction without the permission of the court . [20] The Court went on to explain such relationship in this wise:

After all, the granting of bail does not guaranty compliance by the accused of the conditions for his temporary liberty, particularly, his presence at every stage of the proceedings. Some, if not all, maybe tempted to jump bail and leave the country. This is what the HDO seeks to avoid by keeping the accused within the territory where court processes and dispositions may be enforced and implemented. [21]

We write this article to provide an overview about the Rule on Precautionary Hold Departure Order (PHDO) and the legal implications thereof. Should you need legal assistance on PHDOs, please send an email to [email protected].

[1] Genuino vs. De Lima, G.R. No. 197930, 17 April 2018

[2] Section 6, Article III, 1987 Constitution

[3] Section 13, Universal Declaration of Human Rights

[4] Section 1, A.M. No. 18-07-05-SC (2018)

[5] Id, Section 4.

[6] Id, Section 1.

[7] Id, Section 2

[8] Id, Section 3

[10] Id, Section 5.

[12] Id, Section 7

[13] Genuino vs. De Lima, G.R. No. 197930, 17 April 2018

[16] Garcia vs. Sandiganbayan, G.R. Nos. 205904-06, 17 October 2018

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Liberty Of Abode and Travel

Section 6, philippines constitution- the liberty of abode and of changing the same within the limits prescribed by law shall not be impaired upon lawful order of the court. 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., manotoc jr. v. ca -.

A court may prohibit an accused from leaving the Philippines even if he was admitted to bail – necessary consequence of a bail bond

Marcos v. Manglapus –

Marcos wants to return to country - The right to return to one’s country is not among the rights specifically guaranteed under the Bill of Rights, though it may well be considered as a generally accepted principle of international law, which is part of the law of the land. However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights.

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The Filipino right to travel

Roxas City, Capiz—It is bad enough that many countries around the world—through strict visa regimes and discriminatory border controls—are restricting our right to travel (See “Visas, privilege, and inequality,” 10/28/22). But what makes it worse is that our own country is also holding us back.

This is the message we get from the recent reports of Filipinos being intensively interrogated by our own immigration officers—to the point of being asked to show one’s yearbook. Regardless of how common such an incident is, its virality meant that it resonated with many Filipinos—if not with their experiences, then their anxieties.

Beyond incidents of excessive questioning or failing to catch one’s flight, the overall unpleasant experience at the airport compromises traveling, which has become one of the most important activities for Filipinos from all walks of life. The indoor waterfall in Singapore’s Jewel Changi Airport is a luxury we can do away with—but seamless train connections and good public transport to and from airport (and between terminals!) are basics that we have long been deprived of. Ditto with being able to get into the gates without being exhausted by very long immigration queues (completely avoidable given the very predictable and knowable number of planes and passengers).

Moreover, it is when things go horribly wrong—as in the New Year Ninoy Aquino International Airport (Naia) glitch—that we realize how precarious we are as travelers—even in our own country. Aside from actual delays and cancellations during that “epic fail,” it was the lack of assistance and compensation; the passengers’ feeling of being left high and dry that outraged many of the 60,000 affected.

Then there is also the bureaucracy that gets in the way even before many Filipinos set foot at the airport. Some overseas Filipino workers (OFWs) groups, for instance, have pointed out that the requirement to produce an “overseas employment certificate” (OEC) whenever they travel is just another layer of bureaucracy that causes additional stress. For government officials—including state-employed academics, having to request for “authority to travel” is an additional requirement that makes one’s trip uncertain at the very last minute.

——————-

Such bureaucratic inefficiencies are in stark contrast with the experience of those living elsewhere, making me understand why the perks of having a powerful passport and a painless traveling experience are a powerful draw for my generational peers to migrate to places like Canada, Australia, the US, and the EU.

Several years back, when I was living in the Netherlands as a Ph.D. student, my flight back to Manila got delayed, causing me to miss the flight and forcing me to spend the night in Frankfurt. Aside from the airline paying for my hotel and food, I managed to get a compensation of 400 euros a few months later—not a small amount for a graduate student!

Of course, the travel predicaments faced by Filipinos are not unique to our country; as I learned from attending international conferences, others even have it worse. Cited in the horror stories of academics and advocates from Indonesia and Pakistan to Kenya and Mexico, global health scholar Madhukar Pai described the status quo as an “unfair, unjust, and humiliating system.” Beyond visa inequities, the lack of passenger protections is also a problem in other countries, including the US, to the point of making it to Joe Biden’s agenda.

In fairness to our government and airport authorities, they have tried to make improvements over the years—e.g., the automatic arrival kiosks for Philippine passport holders—and in many aspects, the Naia experience today is actually smoother than a decade ago.

Also, it must be pointed out that there are good intentions behind many of our travel-related policies—including the desire to prevent human trafficking (hence the OECs and registration of OFWs) and corruption in government (hence the “authority to travel”).

These good intentions, however, are often undermined by the bad intentions of some who abuse those laws—and their sheer inefficiencies in their implementation. Also, as my colleague Anna Cristina Tuazon pointed out yesterday, it is the human trafficking syndicates and perpetrators that should be targeted by the government, while “making it easier for victims to signal for help” and addressing the conditions that make people vulnerable to trafficking in the first place.

President Marcos—a frequent flyer since childhood and someone who has lived and studied abroad—is in a good position to appreciate what traveling means for individuals and families. Since taking office, he has made full use of his own right to travel; I hope he will use the rest of his presidency to ensure that all Filipinos can.

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