G. Liberty of abode and right to travel

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

Frequency: ★★☆☆☆

1. Scope and limitations

Concept: Liberty of abode. 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. (Section 6, Article III, 1987 Constitution)

Same; Right to choose one’s residence, leave it, and travel.. Under Section 6, Article III of the 1987 Constitution, liberty includes the right to choose one’s residence, to leave it whenever he pleases and to travel wherever he wills. (Genuino v. De Lima, En Banc, G.R. No. 197390, 17 April 2018)

Genuino v. De Lima, En Banc (April 2018)
In Zacarias Villavicencio vs. Justo Lucban, the 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.

Concept: Right to travel. The right to travel refers to the right to move from one place to another. (Reyes v. Gonzales, En Banc, G.R. No. 182161, 03 December 2009)

Same; Part of liberty. The right to travel is part of the “liberty” of which a citizen cannot be deprived without due process of law. It is part and parcel of the guarantee of freedom of movement that the Constitution affords its citizen. (Genuino v. De Lima, supra.)

Requisites to restrict the right to travel:
1) The consideration/ground – there are only three (3) considerations that may permit a restriction on the right to travel:
a) National security;
b) Public safety; or
c) Public health.
2) There must be an explicit provision of statutory law or the Rules of Court providing for the impairment. (Ibid.)

Same; Legislative enactment. 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. (Ibid.)

Same; Restriction on accused – aappearance in hearing when necessary. The condition imposed upon an accused admitted to bail to make himself available at all times whenever the Court requires his presence operates as a valid restriction on the right to travel remains valid and constitutional. (Silverio v. CA, supra.)

Concept: Right to return one’s country. The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being “arbitrarily deprived” thereof [Art. 12 (4).] (Marcos v. Manglapus, En Banc, G.R. No. 88211, 15 September 1989)

a. Laws

R.A. 9372, Human Security Act . Restriction on Travel: In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court. (Section 26, R.A. 9372)

Same; House Arrest. He/she may also be placed under house arrest by order of the court at his or her usual place of residence. (Paragraph 2, Section 26, Ibid.)

b. Government officers or authorities

Executive officers or administrative authorities. 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.” (Silverio v. CA, supra, citing The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263)

Courts. Processes. 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. (Silverio v. CA, G.R. No. 94284, 08 April 1991)

Same; Same. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process and other means necessary to carry it into effect may be employed by such Court or officer. (Ibid. citing Section 6, Rule 135, Rules of Court)

2. Watch-list and hold departure orders

a. DOJ Circular No. 41, series of 2021

Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise known as the “Consolidated Rules and Regulations Governing Issuance and Implementation of Hold Departure Orders, Watchlist Orders and Allow Departure Orders,” was invalidated for being unconstitutional.

Notable provisions of DOJ Circular No. 41, series of 2021:
Section 5. HDO/WLO Lifting or Cancellation- In the lifting or cancellation of the HDO/WLO issued pursuant to this Circular, the following shall apply:
(a) The HDO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the HDO as provided for in the preceding section has already expired;
2. When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country:
(b) The WLO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the WLO as provided for in the preceding section has already expired;
2. When the accused subject of the WLO has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge; and
3. When the preliminary investigation is terminated, or when the petition for review, or motion for reconsideration has been denied and/or dismissed.
x x x
Section 7. Allow Departure Order (ADO)- Any person subject of HDO/WLO issued pursuant to this Circular who intends, for some exceptional reasons, to leave the country may, upon application under oath with the Secretary of Justice, be issued an ADO.
The ADO may be issued upon submission of the following requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and containing an undertaking to immediately report to the DOJ upon return; and
(b) Authority to travel or travel clearance from the court or appropriate government office where the case upon which the issued HDO/WLO was based is pending, or from the investigating prosecutor in charge of the subject case.
Genuino v. De Lima, En Banc (April 2018)
That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that under Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the country from the court during the pendency of the case against him. Further, in 5 (b) (3), he may not leave unless the preliminary investigation of the case in which he is involved has been terminated.
In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or WLO cannot leave the country unless he obtains an ADO.
By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country, the only plausible conclusion that can be made is that its mere issuance operates as a restraint on the right to travel. To make it even more difficult, the individual will need to cite an exceptional reason to justify the granting of an ADO.
The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that they are one and the same or, at the very least, complementary such that whatever is not covered in Section 1, which pertains to the issuance of HDO, can conveniently fall under Section 2, which calls for the issuance of WLO. In any case, there is an identical provision in DOJ Circular No. 41 which authorizes the Secretary of Justice to issue a HDO or WLO against anyone, motu proprio, in the interest of national security, public safety or public health. With this all-encompassing provision, there is nothing that can prevent the Secretary of Justice to prevent anyone from leaving the country under the guise of national security, public safety or public health.



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