Constitutional Law Chapter VIII – The Constitutional Right to Travel
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.
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
Posted on May 13, 2011, in Constitutional Law and tagged Constitutional Law Chapter VIII - The Constitutional Right to Travel. Bookmark the permalink. 1 Comment.