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For: ECC
From: KYC
Date: October 29, 2018
Re: Right to travel vis-à-vis closure of territorial borders/portion

In the Philippines, the right to travel is found in various instruments.

It is entrenched in the Philippine Constitution.1 Section 6 of the Bill of

Rights provides that the right to ravel shall not be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.2 The right to travel protected by the Constitution involves
the right to travel within the country, the right to leave the country, but not
the right to return to the country.3

The same right is found in Article 13 of the Universal Declaration of

Human rights.4 It provides that (1) everyone has the right to freedom of
movement and residence within the borders of each state; and (2) everyone
has the right to leave any country, including his own, and to return to his
country.”5 The International Covenant on Civil and Political Rights, to
which the Philippines is a party thereto, also provides (1) everyone lawfully
within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence; and (2) everyone
shall be free to leave any country, including his own. 6 Article 10 of
Convention on the Rights of the Child,7 Articles 5, 8 and 39 of the
International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families, 8 Articles 9 and 18 of the
Convention on the Rights of Persons with Disabilities, 9 Article 5 of the
International Convention on the Elimination of All Racial Discrimination, 10
and Article 15 of the Convention on the Elimination of All Forms of
Discrimination Against Women11 all contain the right to travel. As party to
these conventions, the Philippines assumes the obligation and duty to
respect, to protect and to fulfil the right to travel.12

However, the right is not an unfettered freedom. Under Philippine

law, the right to travel can be limited in three ways. First, in the interest of
national security, public safety, or public health, as may be provided by

1
Constitution, Art. III, Section 6.
2
Constitution, Art. III, Section 6.
3
Marcos v. Manglapus, 258 Phil. 479 (1989).
4
U.N. Universal Declaration of Human Rights, Art. 13.
5
International Covenant on Civil and Political Rights, Art. 12.
6
International Covenant on Civil and Political Rights, Art. 12.
7
Convention on the Rights of the Child, Art. 10.
8
International Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families, Arts. 5, 8 & 39.
9
Convention on the Rights of Persons with Disabilities, Arts. 9 & 18.
10
International Convention on the Elimination of All Racial Discrimination, Art. 5.
11
Convention on the Elimination of All Forms of Discrimination against Women, Art. 15.
12
The Foundation of International Human Rights
[http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html
visited (October 28, 2018)].
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law.13 Second, by court order, as an inherent power of the Courts to use all
means necessary to carry their orders into effect in criminal cases pending
before them.14 And third, if Congress, pursuant to its power of legislative
inquiry, issues a subpoena or arrest order against a person.15

As to the question whether the closure of a portion of a territory

violates such right, the answer should be in the negative.

The right to travel is not one of the non-derogable rights under the
ICCPR.16 Like the Constitution, the ICCPR provides that some freedoms
may be restricted for a variety of reasons – necessity to protect national
security, public order, public health or morals or the rights and freedoms of
others.17 Such grounds are not novel in our jurisdiction or in the
abovementioned UN treaty. In the African Charter on Human and People’s
Rights, the right to leave any country including one’s own, and to return to
one’s own country, may only be subject to restrictions proved for by law for
the protection of national security, law and order, public health and
morality.18 The American Convention on Human Rights likewise provides
that the right to freedom of movement and residence, including the right to
any country, including one’s own may be limited on the ground of protecting
public safety, health, morals, public order, national security or the rights and
freedoms of others, as prescribed by law.19

It seems that the common elements for the right to travel to be

justifiably limited are: (1) it must be in the interest of national security,
public safety, or public health; and (2) it must be provided by law.20

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.21 Thus, the Government has to be
able to point to a law giving it such authority to impair the right to travel.22

An example of such statutory requirement is the Philippine Passport

Act of 1996 or R.A. No. 8239.23 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. 24 Some other
analogous statutory limitations are:
13
Constitution, Art. III, Section 6.
14
Silverio v. Court of Appeals, 273 Phil. 128 (1991).
15
Del Rosario v. Pascua, 683 Phil. 1 (2012).
16
International Covenant on Civil and Political Rights, Art. 4, par. 2.
17
International Covenant on Civil and Political Rights, Art. 12.
18
African Charter on Human and People’s Rights, Art. 12, par. 2.
19
American Convention on Human Rights, Art. 22.
20
Emphasis supplied.
21
Genuino v. De Lima, G.R. Nos. 197930, 199034 & 199046, April 17, 2018.
22
Joaquin Bernas, The 1987 Philippine Constitution of the Republic of the Philippines: A Commentary,
2009 Ed., p. 378.
23
Republic Act No. 8239 (1996).
24
Leave Division, Office of Administrative Services - Office of the Court Administrator v. Heusdens, 678
Phil. 328 (2011).
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“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.

xxx

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.

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.
xxx

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.”25

But, the second element cannot be construed as to hamper the State’s

right to sovereignty. In construing the Section 6 of the Bill of Rights, the
intent or purpose of the framers must be examined:

“The necessity of a law before a curtailment in the freedom of

movement may be permitted is apparent in the deliberations of the
members of the Constitutional Commission. In particular, Fr. Joaquin
Bernas, in his sponsorship speech, stated thus:

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.

It is well to remember that under the 1973 Constitution, the right to

travel is compounded with the liberty of abode in Section 5 thereof, which
reads:

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.
25
Id.
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The provision, however, proved inadequate to afford

protection to ordinary citizens who were subjected to "hamletting"
under the Marcos regime. Realizing the loophole in the provision, the
members of the Constitutional Commission agreed that a safeguard must
be incorporated in the provision in order to avoid this unwanted
consequence. Thus, the Commission meticulously framed the subject
provision in such a manner that the right cannot be subjected to the
whims of any administrative officer. In addressing the loophole, they
found that requiring the authority of a law most viable in preventing
unnecessary intrusion in the freedom of movement, viz.:

MR. NOLLEDO. 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.”26

Thus, the phrase ‘as may be provided by law’ was a reaction to the
atrocities during the Marcos Regime. Accordingly, it cannot be interpreted
as a complete, express or implied, waiver of the State’s right to restrict the
right to travel in the absence of statutory law.

In Reagan v. Commissioner of Internal Revenue, the Court opined

that the jurisdiction of the nation within its own territory is susceptible of no
limitation not imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its sovereignty to the
extent of the restriction, and an investment of that sovereignty to the same
extent in that power which could impose such restriction. All exceptions,
therefore, to the full and complete power of a nation within its own
territories, must be traced up to the consent of the nation itself.27

Therefore, the power to limit the right to travel need not be always
found in statutory law. As in Marcos v. Manglapus, the Court ruled that the
26
De Lima, supra. Emphasis supplied.
27
141 Phil. 621 (1969).
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authority of the President to impair the right to travel was founded in the
totality of executive powers, explicit and residual, thus:28

“The Constitution declares among the guiding principles that “[t]he

prime duty of the Government is to serve and protect the people” and
that “[t]he 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.” [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the

maintenance of peace and order, the protection of life, liberty and
property, and the promotion of the general welfare are essentially
ideals to guide governmental action. But such does not mean that they
are empty words. Thus, in the exercise of presidential functions, in
drawing a plan of government, and in directing implementing action for
these plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these principles,
among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow
the Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at a
decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national interest.
It must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common good.
Hence, lest the officers of the Government exercising the powers delegated
by the people forget and the servants of the people become rulers, the
Constitution reminds everyone that “[s]overeignty resides in the people
and all government authority emanates from them.” [Art. II, Sec. 1.]”29

The Court further held:

“The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed
intent of the members of the Constitutional Commission of 1986 to limit
the powers of the President as a reaction to the abuses under the regime of
Mr. Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief clause, but
not a diminution of the general grant of executive power.”30

It is well within the interest of national security, public safety and

public health that the integrity of its entire territory, or a portion of it,
remains unimpaired. And there is no doubt that the closure of a portion of a
territory, in fulfilling said interest, is an exercise of a legitimate right by the
State; for the power involved in such act is the State’s inherent right to
sovereignty.

28
Manglapus, supra. Emphasis supplied.
29
Id. Emphasis supplied.
30
Id.
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Nothing is better settled than that the Philippines being independent

and sovereign, its authority may be exercised over its entire domain. There is
no portion there of that is beyond its power. Within its limits, its decrees are
supreme, its commands paramount. Its laws govern therein, and everyone to
whom it applies must submit to its terms.31

Of course, such power should not be construed as giving the

Government the unrestrained discretion to close portions of its territory on a
whim. The exercise must always remain in the legitimate interest of national
security, public safety, or public health and exercised with due process.32

31
Reagan, supra.
32
De Lima, supra.