The right to travel is NOT absolute

The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process of law.[1] It is part and parcel of the guarantee of freedom of movement that the Constitution affords its citizen. (Genuino v. De Lima. G.R. No. 197930. April 17, 2018. Per Justice Reyes, Jr.) Pertinently, Section 6, Article III of the Constitution provides:

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 maybe provided by law.

Liberty under the foregoing clause includes the right to choose one's residence, to leave it whenever he pleases and to travel wherever he wills.[2] Thus, in Zacarias Villavicencio vs. Justo Lucban,[3] the Supreme Court held illegal the action of the Mayor of Manila in expelling women who were known prostitutes and sending them to Davao in order to eradicate vices and immoral activities proliferated by the said subjects. It was held that regardless of the mayor's laudable intentions, no person may compel another to change his residence without being expressly authorized by law or regulation.

It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory and inherent limitations regulating the right to travel. Section 6 itself provides that the right to travel may be impaired only in the interest of national security, public safety or public health, as may be provided by law. In Silverio vs. Court of Appeals,[4] the Supreme Court explained, thus:

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party.[5]

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[6] 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.[7]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.[8]

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. (Emphasis ours)

The provision, however, proved inadequate to afford protection to ordinary citizens who were subjected to "hamletting" under the Marcos regime.[9] 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 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.[10]

During the discussions, however, the Commission realized the necessity of separating the concept of liberty of abode and the right to travel in order to avoid untoward results. Ultimately, distinct safeguards were laid down which will protect the liberty of abode and the right to travel separately, viz.:

MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11. Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin ang walang pakundangang paglabag sa liberty of abode sa ngalan ng national security at pagsasagawa ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang "hamletting" upon lawful order of the court. x x x.

x x x x

MR. RODRIGO. Aside from that, this includes the right to travel?

FR. BERNAS. Yes.

MR. RODRIGO. And there are cases when passports may not be granted or passports already granted may be cancelled. If the amendment is approved, then passports may not be cancelled unless it is ordered by the court. Is that the intention? x x x x

FR. BERNAS. Yes

MR. RODRIGO. But another right is involved here and that is to travel.

SUSPENSION OF SESSION
FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty of abode and or changing the same from the right to travel, because they may necessitate different provisions.

THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.

x x x x

RESUMPTION OF SESSION
x x x x

THE PRESIDING OFFICER (Mr. Bengzon). Commissioner Bernas is recognized

The session is resumed.

FR. BERNAS. The proposal is amended to read:

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 MAYBE PROVIDED BY LAW.

THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as amended. Is there any objection? (Silence) The Chair hears none; the amendment, as amended, is approved.[11]

It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the court and, on the one hand, the right to travel may only be impaired by a law that concerns national security, public safety or public health. 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.

Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,[12] the High Court upheld the validity of the Department Order No. 1, Series of 1988, issued by the Department of Labor and Employment, which temporarily suspended the deployment of domestic and household workers abroad. The measure was taken in response to escalating number of female workers abroad who were subjected to exploitative working conditions, with some even reported physical and personal abuse. The Court held that Department Order No. 1 is a valid implementation of the Labor Code, particularly, the policy to "afford protection to labor." Public safety considerations justified the restraint on the right to travel.

Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court Administrator (OCA) vs. Wilma Salvacion P. Heusdens,[13] the Court enumerated the statutes which specifically provide for the impairment of the right to travel, viz.:

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 [Bureau of Immigration], 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."[14]

In any case, when there is a dilemma between an individual claiming the exercise of a constitutional right vis-a-vis the state's assertion of authority to restrict the same, any doubt must, at all times, be resolved in favor of the free exercise of the right, absent any explicit provision of law to the contrary.

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ADDITIONAL READINGS: 

[1] G.R. No. 237703. Oct 3, 2018 - Project Jurisprudence.
[2] SPARK v. QC (G.R. No. 225442. August 08, 2017).
[3] G.R. No. 158793. Jun 08, 2006 (523 Phil. 713) - Project Jurisprudence.
[4] Jesus P. Morfe v. Amelito R. Mutuc, 130 Phil. 415, 430 (1968).

CITATIONS: 

[1] Kent v. Dulles, 357 U.S. 116.
[2] Isagani A. Cruz, Constitutional Law, 2000 Edition, p. 168.
[3] 39 Phil. 778, 812 (1919).
[4] 273 Phil. 128, 135 (1991).
[5] Id. at 133-134.
[6] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Edition, pp. 367-368.
[7] Isagani A. Cruz, Constitutional Law, 2000 Edition, p. 172.
[8] Records of the Constitutional Commission, Volume I, p. 674.
[9] Id. at 715.
[10] Id. at 677.
[11] Id. at 764-765.
[12] Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 246 Phil. 393, 399 (1988), at 405.
[13] 678 Phil. 328 (2011).
[14] Id. at 339-340.