Saturday, October 29, 2011


Joaquin G. Bernas, S.J.
Justice Douglas, in Aptheker v. Secretary of State, said: "Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interest of security . . . . That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes."
Freedom of movement in Philippine law has evolved through the 1935, 1973, and i987 constitutions. The “watch list order” issued by the Secretary of Justice must be measured against the present status of the current constitutional provision
The 1935 provision simply said: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired." The teaching then was that no one could be compelled to change his or her home except in accordance with law. Thus, when the Mayor of Manila sought to cleanse the city of prostitutes by sending them to Davao, the Supreme Court stopped him. The Court then said: "If [the City Mayor and Chief of Police] can take to themselves such power, then any official can do the same . . . And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen."
The 1973 Constitution altered the 1935 text to read: "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." The liberty could thus be impaired either "upon lawful order of the court" or even without such order of a court provided that the restriction was "necessary in the interest of national security, public safety, or public health." The phrase "within the limits prescribed by law" in the 1935 provision disappeared. Thus, the net effect was that an executive officer could impair liberty of abode and of travel even without a prior court order provided only that in the executive officer's judgment impairment was "necessary in the interest of national security, public safety, or public health."
Drastic attempts by the government to control the travel of citizens during the period of martial law did reach the Court. The curtailment took the form of denial of exit permits. The Court had occasion to warn the Travel Processing Center not to treat the constitutional guarantee of the right to travel as an empty phrase in a pauper’s will.
The 1987 Constitution has strengthened the guarantee by splitting freedom of movement into two distinct sentences and treating them differently. The liberty of abode is treated in a separate sentence. It may be impaired only "upon lawful order of the court," and the court is to be guided by "the limits prescribed by law" on the liberty itself. The clear intent was to proscribe practices like "hamletting."
As to liberty of travel, under the 1987 law, it may be impaired even without court order, but the appropriate executive officer is not armed with arbitrary discretion to impose limitations. He 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 had disappeared from the less libertarian 1973 text.
My questions, therefore, are two. First, in what way will the travel of GMA be a threat to "national security, public safety, or public health.” Second, by what statutory authority is the Secretary of Justice preventing the exit of GMA?
In issuing “watch list orders” the Department of Justice has relied on its prosecutorial powers as found in Section 3[1], [2] & [6], Chapter I, Title III, Book IV of the Administrative Code. Of these, the only part specifically related to travel is Section 3(6) which deals with the admission and stay of aliens! In effect, the policy being followed now claims even a broader executive discretion than that given under the 1973 Constitution which at least was limited by the needs of "national security, public safety, or public health.”
The limitation on the right to travel must be based on law and not on a mere executive circular. The limitation may also be by legitimate court order under the Rules of Court. As the Court has said in reference to persons out on bail, (and who are therefore under the jurisdiction of a court), the right to travel should not be “construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such Court or officer.” The executive department is claiming similar discretionary power and without relation to national security, public safety, and public health.
Incidentally, the celebrated case on the right to travel was the ban of President Cory Aquino on the former President’s return to the Philippines. Since the authority to impair the right to travel must be based on law, there was need to point to a law giving her such authority. The Court found it in the “faithful execution clause” of Article VII, Section 17. The Court accepted the argument that the return of Marcos then could be a threat to public safety and the stability of the government at that time. Is the Secretary of Justice making such claim even if the President himself has been quoted as saying that he has no objection to the foreign travel of GMA?
31 October 2011

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