Saturday, November 2, 2013


Let’s face the passport cancellation case
Joaquin G. Bernas, S.J.

If we examine the constitutional law on the freedom of movement of citizens today as it has evolved, we might be surprised to see that it has the same  protective effect as the law in 1919 which prevented Mayor Justo Lukban of Manila from deporting 180 prostitutes to Davao in order preserve the moral standards of Manila.
This was before the 1935 Constitution and we were still living under the Organic Act given to  us the by Unted states Congress. It was our initial Bill of Rights.
Commenting on the law given to us by the US, 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."  
Hold departure orders and cancellation of passports is of a piece with this draconian practice.
Freedom of movement in Philippine Constitution has evolved through the 1935, 1973, and 1987 constitutions. What is the current constitutional law on the subject?
 The Manila  prostitutes in 1919 were being sought to be  exiled under a provision which 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 what the law prescribed.  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 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."
That was 1919.
The 1935 Constitution later provided: “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired.”  Impairment of the liberty therefore was not discretionary with just anybody.  It must be within the limits prescribed by law, that is, the grounds for the limitation must be found in law and the proper officer must be designated.
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.” 
Under this provision even without a court order the liberty of abode and of travel could be impaired by an officer “in the interest of national security, public safety, or public health.”  The officer, although unnamed, is given the discretion to determine what will impair 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 Commission, perceiving the weakness of the 1973 text 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"  during the martial law years.
As to liberty of travel, under the 1987 law, it could be impaired even without court order, but the appropriate executive officer is not armed with arbitrary discretion to impose limitations.  He or she can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law, " a phrase which was not in the less libertarian 1987 Constitution.
As can be seen, it was only under the 1973 Constitution that an officer, other than a judge, could have the discretion to determine whether national security, public safety, or public health is being impaired. For that reason, the 1987 Constitutional Commission added the phrase “as may be provided by law.”
But you may have noticed that, whenever the Secretary of Justice tries to justify her desire to cancel the passport of some senators and others, she cites the 1973 text which does not have the phrase “as may be provided by law.” 
Nevertheless the brave woman seems stymied by the Philippine Passport Law which lists the grounds  for cancellation of a passport: “1. When the holder is a fugitive from justice;  2. When the holder has been convicted of a criminal offense: Provided, That the passport may be restored after service of sentence; or 3. When the passport was acquired fraudulently or tampered with.”
4 November 2013

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