Liberty of Abode and Right to Travel | THE BILL OF RIGHTS

Liberty of Abode and Right to Travel under the Philippine Bill of Rights

1. Constitutional Provision

Article III, Section 6 of the 1987 Philippine Constitution states:

"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."

This provision enshrines two fundamental rights:

• Liberty of abode and
• Right to travel.

These rights, while essential, are not absolute and may be subject to limitations under specific conditions provided by law.

2. Liberty of Abode

Liberty of abode refers to the right of an individual to choose and establish their residence freely. This right includes:

• Freedom to choose where to live or reside.
• Freedom to change residence without any interference from the government or other parties.

Limitations on the Liberty of Abode

The Constitution allows for the limitation of this right under certain conditions:

• Lawful order of the court: The liberty of abode may be restricted only through a lawful order issued by a court, generally in the context of criminal or civil proceedings. For example:
  • House arrest: A court may restrict an individual's liberty of abode by ordering house arrest, usually in the case of individuals awaiting trial or under investigation.
  • Custodial restrictions: In certain cases, individuals under legal custodial supervision, such as probationers or parolees, may have their liberty of abode restricted by court orders.

Balancing Liberty and State Interests

Courts are required to balance an individual's liberty of abode against the state's interests. The restriction must:

• Be necessary for the administration of justice or public order.
• Have a specific legal basis (law or court order).
• Ensure due process, meaning the person affected must be given an opportunity to be heard before any restriction is imposed.

3. Right to Travel

The right to travel refers to the freedom to move from place to place, both within the country and abroad. This encompasses:

• Right to move freely within the country.
• Right to travel abroad.

Limitations on the Right to Travel

The Constitution enumerates specific grounds for which the right to travel may be restricted:

• In the interest of national security: If the movement of individuals poses a threat to the country's security, the government may impose travel restrictions. Examples include travel bans on individuals with known links to terrorist organizations or in times of internal conflict.
• Public safety: Travel may be restricted to protect the public from harm, such as in cases of curfews or lockdowns due to natural disasters or civil disturbances.
• Public health: Health emergencies, such as epidemics or pandemics, may warrant restrictions on movement to prevent the spread of diseases. This can take the form of travel bans, quarantines, or lockdowns.

Judicial Interpretation and Exceptions

• Presidential Decree No. 1083 (Code of Muslim Personal Laws) allows certain restrictions on a woman's travel under specific marital situations in line with Islamic law. However, this remains subject to constitutional scrutiny for potential violations of equality and non-discrimination.

• Habeas corpus: Individuals who believe their right to travel has been unjustly restricted may file a petition for a writ of habeas corpus to challenge the legality of their detention or restriction of movement.

Examples of Limitations in Philippine Jurisprudence

• Flight risk: Courts may prevent a person facing criminal charges from leaving the country by issuing hold departure orders (HDOs) or precautionary hold departure orders (PHDOs). These are common for individuals charged with serious crimes or facing imminent trial.
• Fugitives from justice: Persons who are deemed fugitives from justice may be barred from traveling until they have addressed their legal obligations.

4. Relevant Jurisprudence

Philippine case law provides significant interpretations of these rights, particularly on their limitations:

• Genuino v. De Lima (2016): The Supreme Court upheld the constitutionality of Department of Justice (DOJ) Circular No. 41, which allows the DOJ to issue HDOs, citing that the right to travel is not absolute. It can be restricted for reasons grounded on national security, public safety, or public health.

• Manotoc v. Court of Appeals (1986): This case involved an individual subject to a hold departure order. The Court clarified that the issuance of an HDO must be based on evidence that the person poses a flight risk. The HDO must also have a clear legal basis.

• Silverio v. Court of Appeals (2002): The Supreme Court ruled that while individuals generally have the right to choose their residence, this right is subject to reasonable restrictions imposed by the courts. In this case, the court ordered the restricted movement of a person facing charges related to fraudulent activities.

• David v. Macapagal-Arroyo (2006): In this case, the Court ruled that the President's declaration of a state of emergency was insufficient to justify a nationwide curtailment of the right to travel. The Court emphasized that any restriction must be grounded on the specific exceptions enumerated in the Constitution.

5. Travel Bans and Government Regulation

Government agencies have the authority to impose travel bans under specific circumstances. For instance:

• The Department of Foreign Affairs (DFA) can cancel or deny passports to individuals facing criminal charges or other legal constraints.
• The Bureau of Immigration (BI) can prevent individuals from leaving the country if there is a court order or if the person is on a watchlist or hold departure list.

Watchlist Orders and Precautionary Hold Departure Orders

• A watchlist order allows the DOJ to monitor individuals who may be involved in legal proceedings but are not yet facing formal charges.
• A precautionary hold departure order (PHDO) is issued by the court when an individual is under preliminary investigation for a crime punishable by at least six years of imprisonment. This prevents the individual from fleeing the country before formal charges are filed.

6. Interaction with Other Rights

The liberty of abode and right to travel are intertwined with other constitutional rights and principles, including:

• Due process of law: Any restriction on these rights must observe due process, which includes proper notice, an opportunity to be heard, and a court decision based on evidence.
• Equal protection of the law: Any restriction must apply uniformly to individuals similarly situated and must not be arbitrary or discriminatory.

7. State of Emergency and Martial Law

During periods of national emergency or martial law, the government may impose additional travel restrictions. However, such restrictions must still conform to the constitutional requirements of necessity, legality, and proportionality. Courts retain jurisdiction to review the validity of restrictions, even under extraordinary circumstances.

8. International Law Perspective

The right to freedom of movement, including the right to choose one's residence and travel freely, is also recognized under international law:

• Universal Declaration of Human Rights (Article 13): Recognizes the right to freedom of movement and residence within the borders of each state and the right to leave and return to one's country.
• International Covenant on Civil and Political Rights (ICCPR, Article 12): Protects the right to liberty of movement and the freedom to choose residence. However, like the Philippine Constitution, it permits restrictions for reasons of national security, public order, public health, or morals.

In conclusion, the liberty of abode and right to travel are enshrined in the Bill of Rights under the 1987 Philippine Constitution. While these rights are fundamental, they are not absolute and may be subject to specific limitations provided by law, particularly in the interest of national security, public safety, or public health. Courts play a crucial role in ensuring that any restrictions imposed on these rights are lawful, necessary, and proportionate, in line with the principles of due process and equal protection of the law.

Watch-List and Hold Departure Orders | Liberty of Abode and Right to Travel | THE BILL OF RIGHTS

Liberty of Abode and Right to Travel (Article III, Section 6, 1987 Philippine Constitution)

1. Constitutional Provision: Article III, Section 6 of the 1987 Philippine Constitution guarantees the right to liberty of abode and the right to travel:

“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.”

This provision outlines two fundamental rights:

• Liberty of Abode: The right to choose where to live.
• Right to Travel: The right to freely move within the country and internationally, subject to certain limitations.

These rights, however, are not absolute. They can be restricted under specific conditions or pursuant to lawful authority.

---

2. Watch-List and Hold Departure Orders

Watch-list and hold departure orders (HDOs) are mechanisms by which the government can restrict an individual's right to travel, particularly to leave the country, usually to secure the presence of a person in judicial or administrative proceedings or to prevent flight from justice.

A. Legal Framework

The issuance of Watch-list and Hold Departure Orders is grounded in specific statutes and rules, notably:

• Administrative issuances by the Department of Justice (DOJ) and the Bureau of Immigration (BI)
• The Rules of Court and jurisprudence

These orders involve a balancing act between safeguarding the right to travel and ensuring the enforcement of justice or national security interests.

---

B. Types of Orders

1. Watch-List Order (WLO)

   • A Watch-List Order places an individual under a watch-list by the Bureau of Immigration (BI), notifying the BI of any attempt by the individual to leave the country. While this order does not outright bar a person from traveling, it signals to authorities to monitor the movements of the person, usually due to an ongoing investigation or proceedings.
   • Basis for Issuance:
     • Ongoing investigation or preliminary investigation by the DOJ or law enforcement agencies
     • Requests from law enforcement agencies or courts to monitor an individual suspected of being involved in criminal activities
     • The WLO is generally valid for a period of 60 days and may be extended or lifted depending on the circumstances.

2. Hold Departure Order (HDO)

   • A Hold Departure Order (HDO) prevents an individual from leaving the Philippines. It is a more restrictive measure than a WLO because it effectively bars the person from traveling outside the country. This order is typically issued by courts or competent authorities under specific legal circumstances.
   • Issuance by Courts:
     • Criminal Cases: The court can issue an HDO if the person is charged with a crime and it believes there is a risk of flight to evade prosecution.
     • Civil Cases: An HDO may also be issued in civil cases, especially if the subject matter involves the custody of children or where the travel might frustrate court proceedings.
   • Issuance by the Department of Justice: The DOJ may issue an HDO in cases of persons under investigation or where there is sufficient reason to believe the person may flee the country before charges are filed.

3. Precautionary Hold Departure Order (PHDO)

   • A Precautionary Hold Departure Order is issued before formal charges are filed. Under A.M. No. 18-07-05-SC, the Supreme Court of the Philippines issued guidelines on the issuance of PHDOs. These are different from HDOs in that they are preventive and used by prosecutors during preliminary investigations.
   • Grounds for Issuance:
     • Issued only in cases where the crime involved is punishable by at least six (6) years and one (1) day imprisonment.
     • There is a strong likelihood that the person charged will attempt to flee the country to evade criminal prosecution.

---

C. Restrictions on the Right to Travel

1. Court Orders:

   • Courts can issue HDOs to restrict travel if a person is charged with a criminal offense, particularly if there is a risk that the individual might abscond. For example, in cases of plunder, graft, or similar offenses, the court may issue such an order to ensure that the accused will face trial.
   • Jurisprudence supports the validity of this restriction, noting that the right to travel is not absolute and can be limited in the "interest of national security, public safety, or public health," or to prevent flight from prosecution.

2. Pending Criminal Cases:

   • If a person is subject to an ongoing criminal investigation or prosecution, the right to travel may be curtailed to ensure that the individual will not abscond and avoid judicial processes.
   • The Rules of Court allow for the issuance of an HDO to prevent a person charged with a crime punishable by imprisonment of more than six (6) years from leaving the country.

3. Administrative Issuances by DOJ:

   • The DOJ has the authority to issue WLOs and HDOs to prevent individuals under investigation for criminal activities from traveling abroad, especially when there is sufficient evidence to warrant such preventive measures.

---

D. Constitutional and Jurisprudential Limitations

1. Case Law:

   • Manotoc v. Court of Appeals (2006): The Supreme Court ruled that the right to travel is not absolute. It may be curtailed for valid reasons, including national security, public safety, public health, or to ensure that justice is served.
   • Genuino v. De Lima (2012): The Supreme Court clarified that WLOs and HDOs issued by the DOJ must be supported by legal basis, and individuals must be given the opportunity to contest the orders. The Court emphasized that such orders cannot be arbitrary and should have a legitimate purpose.
   • Silverio v. CA (1996): The SC ruled that HDOs cannot be issued whimsically, and there must be a compelling reason based on national interest or public safety.

2. Administrative Guidelines:

   • DOJ Circular No. 41 (2010) was the administrative basis for issuing HDOs and WLOs by the DOJ. This circular allowed the Secretary of Justice to issue these orders, but it was challenged in the Supreme Court for allegedly violating constitutional rights.
   • Following the ruling in Genuino v. De Lima, the DOJ's authority to issue these orders has been limited, ensuring stricter adherence to constitutional safeguards and due process.

---

3. Remedies Against Watch-List and Hold Departure Orders

Individuals affected by a WLO or HDO can seek the following remedies:

1. Petition for the Lifting or Cancellation of the Order:

   • Affected individuals can file a motion with the issuing court or administrative body (such as the DOJ) to lift or cancel the WLO or HDO.
   • They may argue that there is no legal basis for the continued restriction or that the circumstances that warranted the issuance of the order no longer exist.

2. Petition for Certiorari:

   • If the individual believes that the issuance of the WLO or HDO was made with grave abuse of discretion, they may file a Petition for Certiorari under Rule 65 of the Rules of Court before the Court of Appeals or the Supreme Court.

3. Temporary Lifting:

   • Courts and authorities may grant the temporary lifting of HDOs, particularly if there are compelling reasons, such as urgent medical treatment abroad or attending international conferences, and when there is assurance that the individual will return to face proceedings.

---

4. Conclusion

The liberty of abode and the right to travel are fundamental rights under the Philippine Constitution, but they can be restricted in the interest of national security, public safety, or public health. Watch-list and Hold Departure Orders serve as mechanisms to safeguard the country’s legal and security interests, ensuring that individuals facing serious criminal charges or investigations do not evade justice. However, these restrictions must always comply with due process and be supported by valid legal grounds.

Scope and Limitations | Liberty of Abode and Right to Travel | THE BILL OF RIGHTS

Liberty of Abode and Right to Travel: Scope and Limitations

Legal Basis:
The liberty of abode and the right to travel are enshrined in Section 6, Article III of the 1987 Philippine Constitution, which states:

"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."

This provision affirms two distinct but related freedoms: the liberty of abode and the right to travel, both of which are subject to limitations grounded in law.

1. Liberty of Abode

Definition:
The liberty of abode refers to the right of an individual to choose where to live, and to change one’s place of residence. It is a fundamental aspect of personal freedom, connected to the right to privacy, autonomy, and self-determination.

Scope:

• A person is free to choose and change their place of residence within the country without interference, except as provided by law.
• This right includes both domestic and international relocation, subject to lawful constraints.

Limitations:

• Lawful Order of the Court:
  The liberty of abode may only be restricted upon a lawful order of the court. For example, a person may be ordered by a court to live within a certain jurisdiction (e.g., house arrest, probation, or parole).

• Specific Orders (Example of Restraining Orders):
  In cases involving protective or restraining orders, such as those related to domestic violence, a court may mandate that the individual cannot reside within a certain distance of another person.

• Special Restrictions (Military and Public Officers):
  Certain public officers and military personnel may be subject to limitations on their place of residence, especially if it affects their ability to perform public functions.

Jurisprudence:

• Villavicencio v. Lukban (G.R. No. L-14639, 1919):
  In this early case, the Supreme Court emphasized that the liberty of abode cannot be violated without legal authority. In this instance, women were forcibly relocated by the government to Davao, and the Court ruled that this was a violation of their liberty of abode.

2. Right to Travel

Definition:
The right to travel guarantees the freedom to move from one place to another, either within the country or across international borders.

Scope:

• The right to travel encompasses both domestic and international travel.
• It includes the right to leave the country and return without arbitrary interference by the government.

Limitations: The Constitution provides that the right to travel may be restricted only in three specific instances:

• In the interest of national security:
  Restrictions may be imposed if a person’s travel is deemed to pose a threat to the country’s security. For example, those suspected of espionage or terrorism might have their travel curtailed.

• In the interest of public safety:
  This includes circumstances where travel might endanger the general public, such as during states of emergency or periods of martial law.

• In the interest of public health:
  Travel restrictions may be imposed during times of public health crises, such as during pandemics or outbreaks of contagious diseases (e.g., COVID-19 travel restrictions).

Statutory and Jurisprudential Exceptions:

• Hold Departure Orders (HDO):
  Courts may issue Hold Departure Orders to prevent individuals from leaving the country if they are facing criminal charges or are under investigation. The authority to issue HDOs is found in the Rules of Court and specific laws such as Republic Act No. 9208 (Anti-Trafficking in Persons Act).

• Watchlist Orders:
  Similar to HDOs, Watchlist Orders may be issued by the Department of Justice (DOJ) under Department Circular No. 41, placing individuals under monitoring for travel abroad if there are pending legal cases against them. However, in Leila M. De Lima v. Executive Secretary Paquito Ochoa Jr. (G.R. No. 212426, 2015), the Supreme Court ruled that DOJ Circular No. 41 was unconstitutional, affirming that only courts have the power to restrict the right to travel through lawful orders.

• Bail and Travel:
  Under the Rules of Court, a person out on bail is generally required to secure permission from the court before traveling abroad. Failure to secure this permission may result in the forfeiture of bail or other sanctions.

• Citizenship Issues:
  Travel restrictions may also apply in cases involving dual citizenship or expatriation, as regulated by laws such as Republic Act No. 9225 (Citizenship Retention and Re-acquisition Act of 2003). A person who has renounced their Filipino citizenship may be barred from entering or exiting the Philippines without proper documentation.

• Terrorism and Anti-Money Laundering Laws:
  Under Republic Act No. 11479 (Anti-Terrorism Act of 2020), individuals designated as terrorists may have their right to travel curtailed in the interest of national security. Similarly, travel may be restricted under the Anti-Money Laundering Act (AMLA) when financial transactions linked to criminal activities are suspected.

Special Considerations for Public Officials:
Public officials are sometimes required to secure travel authority from higher government offices before traveling abroad. For instance:

• Government employees must seek permission from their department heads.
• Military personnel must secure travel clearance in certain cases.

3. Balancing Test: Fundamental Right vs. State Interests

In interpreting and applying the limitations on the right to travel and liberty of abode, courts have consistently employed a balancing test. This test weighs an individual's fundamental right to travel against the state's interest in imposing restrictions based on national security, public safety, or public health.

• Strict Scrutiny:
  In cases where fundamental rights are involved, courts often apply strict scrutiny to assess whether the restriction serves a compelling state interest and whether it is the least restrictive means available.

• Proportionality:
  The principle of proportionality demands that restrictions be narrowly tailored and not broader than necessary to achieve the legitimate state purpose.

4. Right to Travel and International Law

Philippines' Obligations under International Law:
The right to travel is also recognized under international human rights instruments to which the Philippines is a signatory, such as the International Covenant on Civil and Political Rights (ICCPR). Article 12 of the ICCPR guarantees the right to freedom of movement, subject to certain restrictions for reasons of national security, public order, or public health.

Extradition and International Travel:
Extradition laws, particularly Presidential Decree No. 1069 (Philippine Extradition Law), may also affect the right to travel, as persons facing extradition may be subject to temporary detention and travel bans while their case is being processed.

Conclusion:

The liberty of abode and the right to travel are fundamental rights guaranteed under the Philippine Constitution but are not absolute. They may be restricted by lawful court orders or for reasons of national security, public safety, or public health. Any restriction on these rights must comply with statutory and constitutional safeguards, ensuring that the government’s actions are justified, narrowly tailored, and consistent with both domestic law and international obligations.