I believe congratulations are in order because we’ve hurdled the most difficult provisions of the Bill of Rights. Sections 1-5 have produced so many cases and most of the landmark ones are so divided that all the rulings put together sometimes become confusing. That’s why it feels pretty good to master Due Process, Equal Protection, Searches and Seizures, Freedom of Expression, Freedom of Religion, and everything in between.
Anyway, fight’s not over, let’s get to the less stressful topic of Liberty of Abode and Freedom of Movement.
Before we get to the scope and limitations, let’s look at the reason why Section 6 exists.
The liberty of abode is basically our right to choose where we want to reside. The right to travel is self-explanatory. These rights are included in our Bill of Rights for without them, much like the freedom of expression, freedom of assembly, due process, etc., tyranny is easier to implement:
“Liberty under that clause includes the right to choose one’s residence, to leave it whenever he pleases, and to travel wherever he wills. Section 6 is a specific safeguard of these rights and is intended to underline their importance in a free society.
In repressive regimes, one may not change his residence at will. The citizen cannot move from one part of the country to another, much less out of the country, without the permission of the authorities. His departure from one locality must be previously cleared, his transfer to another registered, and, if the government so says, he may be shifted from one place to another against his consent. The idea is to keep tight rein on his movements and close track of his activities on the chance that he may be plotting against the State. Always chary of the motives of its subjects, the despotic government keeps an eagle eye on their comings and goings and places them under its close and constant surveillance, the better to control their actions.”
-Isagani Cruz, Constitutional Law, 2013, p. 168-169
Alright, on to the juicy parts.
SCOPE AND LIMITATIONS
Scope
What Section 6 protects is the Freedom of Movement. On it’s face, it can be divided into two rights:
1. Liberty of abode
2. Liberty of travel (or the right to travel in most recent SC cases)
The right to travel includes the right to move within the country, or to another country, but not the right to return to one’s country:
“…the Court ruled that the right to travel under our Constitution refers to the right to move within the country, or to another country, but not the right to return to one’s country. The latter right, however, is provided under the Universal Declaration of Human Rights to which the Philippines is a signatory.“
–SPARK v. Quezon City, 2017, citing Marcos v. Manglapus, 1989
It should also be noted that the right to travel CANNOT be invoked when a law or government action DOES NOT IMPAIR THE RIGHT TO TRAVEL DIRECTLY.
If the impact on the right is only consequential, as opposed to direct, the right to travel is actually not impaired. This is the ruling in the Boracay Closure case where Proclamation No. 475 ordered it’s temporary closure:
“In fine, this case does not actually involve the right to travel in its essential sense contrary to what petitioners want to portray. Any bearing that Proclamation No. 475 may have on the right to travel is merely corollary to the closure of Boracay and the ban of tourists and non-residents therefrom which were necessary incidents of the island’s rehabilitation. There is certainly no showing that Proclamation No. 475 deliberately meant to impair the right to travel. The questioned proclamation is clearly focused on its purpose of rehabilitating Boracay and any intention to directly restrict the right cannot, in any manner, be deduced from its import. This is contrary to the import of several laws recognized as constituting an impairment on the right to travel which directly impose restriction on the right.
x x x x
In Philippine Association of Service Exporters, Inc. v. Hon. Drilon, the Court held that the consequence on the right to travel of the deployment ban implemented by virtue of Department Order No. 1, Series of 1998 of the Department of Labor and Employment does not impair the right.
Also significant to note is that the closure of Boracay was only temporary considering the categorical pronouncement that it was only for a definite period of six months.
Hence, if at all, the impact of Proclamation No. 475 on the right to travel is not direct but merely consequential; and, the same is only for a reasonably short period of time or merely temporary.
x x x x
For obvious reason, there is likewise no more need to determine the existence in this case of the requirements for a valid impairment of the right to travel.”
–Zabal v. Duterte, 2019
What does that mean? Well, it basically means that the limitations imposed by Section 6 will not apply if a government action only indirectly impacts the right to travel. This means that even without the interest of national security, public safety, or public health, and even without a law granting authority, a government action can indirectly affect the right to travel.
Thus, the scope of Section 6 does not include indirect consequences on the right to travel. In other words, or in the words of Justice Perlas-Bernabe in her Concurring Opinion, there can be no violation of the right to travel if the government action DOES NOT SUBSTANTIVELY REGULATE SUCH RIGHT:
“Among other points, I agree with the ponencia that “this case does not actually involve the right to travel in its essential sense contrary to what petitioners want to portray.” In my view, there can be no violation of the right to travel because, in the first place, Proclamation No. 475 is not an issuance that substantively regulates such right.“
It’s a weird ruling, but we have no choice, I guess.
Let’s go to the limitations.
Limitations on the Liberty of Abode
The explicit limitation on the liberty of abode is pretty clear-cut: upon lawful order of the court.
That’s probably why the SC cases on this right is scarce. A classic case is one which happened prior to the 1987 Constitution. It’s about a maid who had a debt to her employer and the employer refused her request to leave and live with her cousin. The SC of course ruled in favor of the maid:
“On the hypothesis that Estelita is really indebted in the amount of P83.85, such is not a valid reason for the respondents to obstruct, impede or interfere with Estelita’s desire to leave the house of Julia Salazar and to live in the residence of his cousin Bartolome. Said indebtedness may be multiplied by thousands or millions, but would not in any way subtract an iota from Estelita’s fundamental right to have a free choice of abode.
An employment agency, regardless of the amount it may advance to a prospective employee has absolutely no power to curtail the freedom of movement of said employee. The fact that power to control said freedom may be an effective means of avoiding monetary losses to the agency is no reason for jeopardizing a fundamental human right.“
–Caunca v. Salazar, 1949
But the case above is pretty old and does not mention the “lawful order of the court” requirement because this was only introduced in 1987. Let’s provide a better example where there is a lawful court order. This case is basically the CA imposing a condition on a person’s bail where it requires that he should present a guaranty from the Mayor that he is a resident of an area and that he should inform the court if he intends to transfer his place of residence:
“Petitioner also contests the condition imposed by the Court of Appeals that he secure “a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court“, claiming that the same violates his liberty of abode and travel.
x x x x
The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision. The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so.“
–Yap, Jr. v. CA, 2001
There is a 1996 bar exam question: whether or not a law that mandatorily puts lepers in a leprosarium violates their liberty of abode. The suggested answer says no because the liberty of abode can be subject to police power:
[No, the suit will not prosper.
Section 6, Article III of the Constitution provides:
“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.”
The liberty of abode is subject to the police power of the State. Requiring the
segregation of lepers is a valid exercise of police power. In Lorenzo us. Director of
Health, 50 PhiJL 595, 598, the Supreme Court held:
“Judicial notice will be taken of the fact that leprosy is commonly believed
to be an infectious disease tending to cause one afflicted with it to be shunned
and excluded from society, and that compulsory segregation of lepers as a
means of preventing the spread of the disease is supported by high scientific
authority.”]
I’m not sure of this answer because, first, the case cited is a very old 1927 case of Lorenzo v. Director of Health, and second, there is no lawful order of the court here. But then again, it is pretty sensible to conclude that police power can impair the liberty of abode, even in the absence of a lawful court order, because why not? It is police power after all, the power to promote the general interest and welfare (a topic we’ll deeply explore in our later discussions).
Thus, I think it’s safe to say that the liberty of abode also has an implicit limitation: police power.
But, if the same question does come up, I’ll say that the law is not a valid exercise of police power and is violative of the due process clause. How? Because if put under strict scrutiny, the law violates due process. Strict scrutiny will be used (as opposed to intermediate scrutiny or the rational basis test) because the right that the law impairs here is the fundamental right of liberty of abode. Then it will basically be the liberty of abode put against the compelling state interest of public health and safety, which is more important? I think public health and safety is more important. The next question then, however, is, is the means of confining the lepers in a leprosarium the least restrictive means? NO. Leprosy has shown to be not contagious if treated and those afflicted by the disease can live a normal life without the need of confinement. Simple mandatory treatment is enough to defeat leprosy. A leprosarium is an ancient and unnecessary means that’s a product of stigma about the disease. The process on how to put a law under judicial scrutiny can be found here.
But then, if it’s another disease that can be shown to be very deadly and very contagious, the answer depends on the seriousness of the disease and if the least restrictive means are used to combat it.
Limitations on the Right to Travel
As can be seen from the statute, the limitations are pretty clear:
1. No need for a lawful court order
2. Can only be done in the interest of national security, public safety, or public health
3. As may be provided by law
Wait, so does this mean that the right to travel cannot be impaired by a lawful court order? No. A lawful court order can still impair the right to travel. The Courts have an inherent power to use all means necessary to carry their orders into effect:
“Article III, Section 6 of the 1987 Constitution should by no means 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.
x x x x
Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law.”
–Silverio v. CA, 1991
Another important note is, if not through a lawful court order, there should be a law behind the government’s act of impairing a person’s right to travel:
“Therefore, when the exigencies of times call for a limitation on the right to travel, the Congress must respond to the need by explicitly providing for the restriction in a law. This is in deference to the primacy of the right to travel, being a constitutionally-protected right and not simply a statutory right, that it can only be curtailed by a legislative enactment.”
–Genuino v. De Lima, 2018
Does this mean that it should be a law from Congress? Yes, it should be a statutory law which enables the government to impair the right to travel. Here are some examples of these laws:
[Some of these statutory limitations [to the right to travel] are the following:
1] The Human Security Act of 2010 or [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.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. 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.
3] The “Anti-Trafficking in Persons Act of 2003” or R.A. No. 9208. Pursuant to the provisions thereof, the [BI], in order to manage migration and curb trafficking in persons, issued Memorandum Order Radir No. 2011-011, 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.
5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement of an individual against whom the protection order is intended.
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.”]
–Genuino v. De Lima, 2018
I bet one obvious question on our minds is “What law are the quarantines or travel bans based on”? That’s been bothering me too. My best guess is the Local Government Code (RA 7160), but what about nationwide travel bans and what about the quarantines set by LGUs prior to the Bayanihan to Heal as One Act (RA 11469)? To be sure, let’s do some digging.
Here are the results of some quick research:
1. International travel ban basis and quarantine stations: Quarantine Act of 2004 (RA 9271)
SEC. 4. Authority to Promulgate and Enforce Rules and Regulations and Provide Penalties for Their Violations. – (a) The Director of the Bureau with the approval of the Secretary of Health, is authorized to promulgate and enforce rules and regulations as in his judgment are necessary to prevent the introduction, transmission or spread of “public health emergencies of international concern” from foreign countries into the Philippines or from one (1) domestic seaport/airport to another.
SEC. 6. Quarantine Stations. – The Director of the Bureau shall control, direct and manage all quarantine stations, grounds and anchorages, and designate their boundaries. With the approval of Secretary of Health, he shall establish such additional quarantine station, grounds and anchorages if, in his judgment, these are necessary to prevent the introduction of diseases of international concern into the country.
2. Any form of pandemic response from the DOH: Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act (RA 11332)
Section 4. Objectives. -This Act shall have the following objectives:
x x x x
(f) To ensure that public health authorities have the statutory and regulatory authority to ensure the following:
(1) Mandatory reporting of reportable diseases and health events of public health concern;
(2) Epidemic/outbreaks and/or epidemiologic investigation, case investigations, patient interviews, review of medical records, contact tracing, specimen collection and testing, risk assessments, laboratory investigation, population surveys, and environmental investigation;
(3) Quarantine and isolation; and
(4) Rapid containment and implementation of measures for disease prevention and control;
3. LGU measures in response to a pandemic: Local Government Code (RA 7160)
SECTION 16. General Welfare. – Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
That’s pretty much it. For all other authority granted by RA 11469 or the Bayanihan to Heal as One Act, just read it there. The authorities given to government bodies are clear. But don’t take too much time. These laws were just posted to better our understanding of Sec. 6, and not to be memorized.
Anyway, let’s look at a case where it illustrates the requirement of a legislative enactment before the right to travel can be impaired. In the SC’s own words, “the key is legislative enactment.” This case involves a DOJ circular (Circular 41) granting the Justice secretary authority to issue watch list orders. It was declared unconstitutional because there is no statutorily law that permits the DOJ to issue Circular 41:
[The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but the solution does not lie in taking constitutional shortcuts. Remember that the Constitution “is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights are determined and all public authority administered.” Any law or issuance, therefore, must not contradict the language of the fundamental law of the land; otherwise, it shall be struck down for being unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on constitutionally-protected rights without the authority of a valid law. Even with the predicament of preventing the proliferation of crimes and evasion of criminal responsibility, it may not overstep constitutional boundaries and skirt the prescribed legal processes.]
–Genuino v. De Lima, 2018
Thus, the limitations of Sec. 6 are:
1. Liberty of abode- may be impaired only upon lawful order of the court and implicitly by police power
2. Right to travel- Upon a lawful order of the court (inherent power) OR may be impaired in the interest of national security, public safety or public health, as may be provided by law
That’s clear enough. On to the next topic.
Watch-list and hold departure orders
Watch-lists and Hold Departure Orders were previously within the power of the DOJ. But then, in the case we just discussed above (Genuino v. De Lima, 2018), the source of that power, DOJ Circular No. 41 was held unconstitutional. Until the legislature enacts a law to empower the DOJ, our lives relative to the bar exams are now easier.
So, does that mean that the Philippines is powerless if suspected criminals want to leave the country? That’s a big NO:
“In the meantime, the DOJ may remedy its quandary by exercising more vigilance and efficiency in the performance of its duties. This can be accomplished by expediency in the assessment of complaints filed before its office and in the prompt filing of information in court should there be an affirmative finding of probable cause so that it may legally request for the issuance of HDO and hold the accused for trial. Clearly, the solution lies not in resorting to constitutional shortcuts but in an efficient and effective performance of its prosecutorial duties.”
–Genuino v. De Lima, 2018
So who can the DOJ request for the issuance of an HDO? The Bureau of Immigration and the Department of Foreign Affairs. Why? Because they have the authority GIVEN TO THEM BY A LEGISLATIVE ENACTMENT, not just a mere circular:
“The Court understands the dilemma of the government on the effect of the declaration of unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be utilized by suspected criminals, especially the affluent ones, to take the opportunity to immediately leave the country. While this is a legitimate concern, it bears stressing that the government is not completely powerless or incapable of preventing their departure or having them answer charges that may be subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out that Republic Act No. (R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly grants the Secretary of Foreign Affairs or any of the authorized consular officers the authority to issue verify, restrict, cancel or refuse the issuance of a passport to a citizen under the circumstances mentioned in Section 4 thereof. Mr. Justice Tijam, on the other hand, mentioned Memorandum Circular No. 036, which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of 2003, as amended by R.A. No. 10364 or the Expanded Anti-Trafficking in Persons Acts of 2012, which authorizes the BI to hold the departure of suspected traffickers or trafficked individuals. He also noted that the Commissioner of BI has the authority to issue a HDO against a foreigner subject of deportation proceedings in order to ensure his appearance therein. Similarly, the proposal of Mr. Justice Velasco for the adoption of new set of rules which will allow the issuance of a precautionary warrant of arrest offers a promising solution to this quandary. This, the Court can do in recognition of the fact that laws and rules of procedure should evolve as the present circumstances require.”
–Genuino v. De Lima, 2018
I doubt the bar will cover the specific laws above, so let’s not bother to dissect them.
And aside from these measures coming from the Executive Department, the Judicial Department also has the power to issue hold departure orders, but only the Regional Trial Court under OCA Circular No. 39-97, Guidelines in the Issuance of Hold-Departure Orders (1997):
“In order to avoid the indiscriminate issuance of Hold-Departure Orders resulting in inconvenience to the parties affected the same being tantamount to an infringement on the right and liberty of an individual to travel and to ensure that the Hold-Departure Orders which are issued contain complete and accurate information, the following guidelines are hereby promulgated:
- Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts;
- The Regional Trial Courts issuing the Hold-Departure Order shall furnish the Department of Foreign Affairs (DFA) and the Bureau of Immigration (BI) of the Department of Justice with a copy each of the Hold-Departure Order issued within twenty-four (24) hours from the time of issuance and through the fastest available means of transmittal;
- The Hold-Departure Order shall contain the following information:
a. The complete name (including the middle name), the date and place of birth and the place of last residence of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined;
b. The complete title and the docket number of the case in which the Hold-Departure Order was issued;
c. The specific nature of the case; and
d. The date of the Hold-Departure Order.
If available a recent photograph of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined should also be included.
- Whenever (a) the accused has been acquitted; or (b) the case has been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold-Departure Order issued. The courts concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal promulgated or the order of dismissal issued within twenty-four (24) hours from the time of promulgation/issuance and likewise through the fastest available means of transmittal.
All Regional Trial Courts which have furnished the Department of Foreign Affairs with their respective lists of active Hold-Departure Orders are hereby directed to conduct an inventory of the Hold-Departure Orders included in the said lists and inform the government agencies concerned of the status of the Orders involved.“
–OCA Circular No. 39-97, Guidelines in the Issuance of Hold-Departure Orders,1997
The question now is, so what are the laws that empowers the court to issue hold departure orders? They don’t need to. It is in their inherent power.
The court’s power to issue hold departure orders emanates from its inherent power to preserve and maintain the effectiveness of its jurisdiction over the case and over the person of the accused:
“Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted court has the power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. Hence, demands, matters, or questions ancillary or incidental to, or growing out of, the main action, and coming within the above principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority over the principal matter, even though the court may thus be called on to consider and decide matters which, as original causes of action, would not be within its cognizance.
Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its jurisdiction. Such being the case, with more reason may a party litigant be subjected to proper coercive measures where he disobeys a proper order, or commits a fraud on the court or the opposing party, the result of which is that the jurisdiction of the court would be ineffectual. What ought to be done depends upon the particular circumstances“
–Defensor-Santiago v. Vasquez, 1993
This reasoning is similar to that of the one in Silverio v. CA (1991) as cited in the early part of our discussion on limitations on the right to travel.
But wait, what about that case here the Supreme Court issued a circular which pretty much regulated the right to travel of its employees? Is it allowed? Yes, because the Supreme Court is vested the power of administrative supervision by the Constitution over its personnel:
“With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides that the Supreme Court shall have administrative supervision over all courts and the personnel thereof. This provision empowers the Court to oversee all matters relating to the effective supervision and management of all courts and personnel under it. Recognizing this mandate, Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986, considers the Supreme Court exempt and with authority to promulgate its own rules and regulations on foreign travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or she swears to faithfully adhere to, and abide with, the law and the corresponding office rules and regulations. These rules and regulations, to which one submits himself or herself, have been issued to guide the government officers and employees in the efficient performance of their obligations. When one becomes a public servant, he or she assumes certain duties with their concomitant responsibilities and gives up some rights like the absolute right to travel so that public service would not be prejudiced.”
–Leave Division v. Heusdens, 2011
And in 2018, the Court clarified that OCA Circular 49-2003 was more of a regulation rather than a restriction:
“OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the employee’s leave for purpose of foreign travel which is necessary for the orderly administration of justice. To “restrict” is to restrain or prohibit a person from doing something; to “regulate” is to govern or direct according to rule. This regulation comes as a necessary consequence of the individual’s employment in the judiciary, as part and parcel of his contract in joining the institution. For, if the members of the judiciary are at liberty to go on leave any time, the dispensation of justice will be seriously hampered. Short of key personnel, the courts cannot properly function in the midst of the intricacies in the administration of justice. At any rate, the concerned employee is not prevented from pursuing his travel plans without complying with OCA Circular No. 49-2003 but he must be ready to suffer the consequences of his non-compliance.”
–Genuino v. De Lima, 2018
Well, I guess we’ve covered it. I want to summarize everything here, but it’s not that confusing that we need to collate the important parts. Just look at the highlighted paragraphs. 🙂
On to Eminent Domain next time.
The Bartender 