THE COLLEGE OF MAASIN

COLLEGE OF LAW
ELECTIVE
(ADVANCE CONSTITUTIONAL LAW SEMINAR)
RESEARCH PAPER
ARIEL B. LUNZAGA
STEFFI JURIS E. TAFALLA

TRAVEL BAN FOR NON-VACCINATED INDIVIDUALS

Introduction:

The Philippine government is one of the many around the world struggling
to respond to the severe public health crisis brought about by the spread of the
COVID-19 virus. To date, the Philippines is one of the countries with the highest
COVID-19 related deaths in Southeast Asia.

Due to the COVID-19 pandemic, travelling around the country is heavily

restricted. There are many Executive Orders passed by Local Government Units,
provinces passed depending on the number of cases each has. Now, that vaccines
are available throughout the country and many have been vaccinated, there is a
possibility of a new travel restriction for travelers which is “travel ban for non-
vaccinated individuals.”

For purposes of this paper, let us now dissect every provision in the 1987
Philippine Constitution that will allow and disallow this travel restriction.

Constitutional Provisions:

ARTICLE II

Declaration of Principles and State Policies

Principles
SECTION 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.
Maintenance of Peace and Order, Promotion of General Welfare
Police Power - It is the inherent and plenary power of the state which enables it
to prohibit all that is hurtful to the comfort, safety and welfare of society.

Scope and Limitations “The state in order to promote the general welfare, may
interfere with personal liberty, with property, and with business and occupations.
Persons may be subjected to all kinds of restraints and burdens, in order to secure
the general comfort, health and prosperity of the state and to this fundamental
aim of our Government, the rights of the individual are subordinated”

Can the State makes vaccination against COVID-19 mandatory?

Yes. But there has to be a law, and the basis could be police power.
"Congress can enact a law that makes vaccination against COVID-19 mandatory.
The state can invoke its police power to justify this measure, especially in light of
the pandemic’s effect on our health care system and the number of cases and
deaths," Gatmaytan told Rappler.
The Philippine Congress had previously enacted a law that made some
immunizations mandatory before, but for children.

"Congress may enact that mandatory law not only on the basis of Section 15,
Article II of the Constitution but also on the basis of the police power of the
State," said Gutierrez.
Police power, Gutierrez said, is under Section 5, Article II of the
Constitution, which says that: "The maintenance of peace and order, the
protection of life, liberty, and property, and the promotion of the general welfare
are essential for the enjoyment by all the people of the blessings of democracy."
Justice Secretary Menardo Guevarra deferred comment.
 "It involves policy and constitutional issues that require a lot of careful
deliberation. It is possible that the matter may be raised before the Inter-Agency
Task Force (IATF), or a bill may be filed in Congress, in which case the Department
of Justice will certainly be requested to give its official position," said Guevarra.

SECTION 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
Right to Health

The Department of Health (DOH) is mandated to be the over-all

technical authority on health. The major mandate of DOH is to provide
national policy direction and develop national plans, technical standards and
guidelines on health. It is also a regulator of all health services and
products; and provider of special or tertiary health care services and of
technical assistance to other health providers specially to Local Government
Units (LGU). With other health providers and stakeholders, the DOH shall
pursue and assure the following: Promotion of the health and well-being for
every Filipino; Prevention and control of diseases among population at risk;
Protection of individuals, families and communities exposed to health hazards
& risks; and Treatment, management and rehabilitation of individuals
affected by diseases and disability.

Even though the world has waited and worked very hard for COVID-19
vaccines, 6 out pf 10 Filipinos do not want to be inoculated with a COVID-19
vaccine, according to the latest Pulse Asia survey released last March.
The Philippines targets vaccinating 50 million to 70 million Filipinos in order to
achieve herd immunity and jumpstart economic recovery.
For now, COVID-19 vaccine is not mandatory, according to the Department of
Health (DOH).
For Senior Associate Justice Estela Perlas Bernabe, Filipinos have the
constitutional right to refuse the vaccine.
"Yes, because the right to health is a constitutional right and I think employees
should be given the right to refuse or not to refuse this vaccine," Bernabe said
during her Judicial and Bar Council (JBC) interview.
Aside from the right to health, the constitutional right to privacy can also be
a basis for opposing mandatory vaccination, said retired Supreme Court justice
Angelina Sandoval-Gutierrez.
"The objection is that it will violate a person’s basic right to privacy. 
Moreover, Section 11 of Article II of the Constitution provides that the State
values the dignity of every human person," Gutierrez told Rappler.
University of the Philippines (UP) constitutional law professor Dan
Gatmaytan, however, said, "In my opinion, this pandemic will justify mandatory
vaccinations considering the number of cases and deaths we are presently
experiencing."

ARTICLE III

Bill of Rights

SECTION 5. No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.
Free Exercise Clause
 The Free Exercise Clause affords absolute protection to individual religious
convictions. However, the government is able to regulate the times, places, and
manner of its exercise [Cantwell v. Connecticut]. “Under the Free Exercise Clause,
religious belief is absolutely protected, religious speech and proselytizing are
highly protected but subject to restraints applicable to non-religious speech, and
unconventional religious practice receives less protection; nevertheless conduct,
even if it violates the law, could be accorded protection” [Estrada v. Escritor,
supra].
Dual Aspect
a. Freedom to believe – absolute
b. Freedom to act on one’s belief – subject to regulation.

Can one invoke religious beliefs as basis to refuse?

Section 5 of the Bill of Rights guarantees the freedom of religion.
In the US, Church leaders are expressing preference for brands in light of reports
that a vaccine was made in part from cell lines of an aborted fetus.
If indeed such law is passed, a petition based on a religious objection could
be filed before the Supreme Court to challenge its constitutionality, said
Gatmaytan.
"These objections can prevail if the objector can show that there is no
compelling state interest in mandated vaccination. The statute will be upheld if
the government can show that there is a compelling state interest such as
immediate danger to life or health," said Gatmaytan.
But Gutierrez said such petition would have to find case law "to back up their
posture."

Therefore, since COVID-19 vaccination is not yet mandatory, this

constitutional provision on the exercise of freedom of religion can be invoked to
refuse vaccination on religious grounds. Hence, this provision DISALLOWS the
mandatory vaccinations for non-vaccinated individuals due to religious beliefs.

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.

LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

b. Liberty of Travel
The right to travel is a constitutionally protected right. It is a fundamental
right, which occupies a preferred position in the hierarchy of values. The right to
travel is part of the liberty of which a citizen cannot be deprived without due
process of law and only on clear and compelling grounds of national security,
public health and public safety as mandated by the Constitution.
THE RIGHT TO TRAVEL ACT
Sec. 3. Right to Travel as Fundamental Right. - The right to travel is a
fundamental right, which occupies a preferred position in the hierarchy of values.
Any abridgement of the liberty to travel should therefore by strictly construed
and always with full observance of due process of law. In case of equivalence of
proof, courts should resolve in favor of the right to travel and the burden of proof
rests on the person seeking to inhibit the exercise of the right.
Sec. 4. Exceptions. - The right to travel can only be restricted upon a clear
showing of reasonable and compelling reasons that the proposed travel is plainly
harmful conduct to national security, public safety and public health.
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.
The restriction on the right to travel in the case of the COVID-19 outbreak is
hardly arguable considering that it falls squarely within the government’s
mandate to protect “public health.”
Therefore, this provision ALLOWS the travel ban for non-vaccinated
individuals due to public health concern, especially that the whole world is
suffering from a pandemic.

Credits: https://www.officialgazette.gov.ph/constitutions/1987-constitution/ 2020 UP BOC Political

Law Review, DOH Mandate, THE RIGHT TO TRAVEL ACT Introduced by SENATOR LUISA "LOI" P. EJERCITO
ESTRADA, https://www.projectjurisprudence.com/2020/01/the-right-to-travel-is-not-absolute.html
https://www.rappler.com/newsbreak/explainers/can-philippine-government-make-covid-19-vaccine-
mandatory