Freedom of Movement

The right to travel, along with the right to freedom of movement, are constitutionally guaranteed rights. The petitioners had been barred by the government from leaving the country. This was done through a Hold-Order. The petitioners argued that this was violative of their right to travel. The Court held that the Hold-Orders impaired the petitioners' constitutional right to travel. The Hold-Orders had already expired and the grounds for their issuance had become moot. The Court said, "The right to travel and to freedom of movement is a fundamental right guaranteed by the 1987 Constitution and the Universal Declaration of Human Rights to which the Philippines is a signatory. That right extends to all residents regardless of nationality. And everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law. While such right is not absolute but must yield to the State's inherent police power upon which the Hold-Orders were premised, no 'good reasons' have been advanced which could justify the continued enforcement of the Hold-Orders." Thus, the Court held that the government had abused its discretion in maintaining the Hold-Orders for an indefinite length of time, as to do so arbitrarily violated the petitioners' fundamental right to freedom of movement. It cited the UDHR in so doing.

(found in Philippine Law & Jurisprudence on Human Rights by Alberto T. Muyot, pp. 158-159)

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Though the right to return to one's country is not constitutionally protected, it is a generally accepted principle of international law, and thus a part of domestic law. It is not, however, an absolute right. Public interest grounds may limit it.

The petitioner, former president Ferdinand E. Marcos, was deposed. Near death, he wished to return to the Philippines. The new president, Corazon C. Aquino, refused. The Supreme Court considered the petitioner's petition for mandamus. The petitioner argued it was unconstitutional to forbid him from returning under the guarantees of due process, the liberty of abode, and the right to travel. The petitioner also argued that his right to return to the Philippines was guaranteed under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The government argued that the right of the State to national security trumped individual rights. The Court said, "It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right to return to one's country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct rights.

The Court allowed the government’s ban on Marcos’ and his family’s return. Both the majority and dissenting opinions cited the UDHR.

(found in Philippine Law & Jurisprudence on Human Rights by Alberto T. Muyot, pp. 162-165)

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In the absence of a law regulating the issue of passports, the refusal of a passport by the executive, acting in its discretion, constitutes a violation of the citizen's right to leave his country. “The Universal declaration of human rights-"Everyone has the right to leave any country including his own" is applicable to normal persons. It does not apply to criminals avoiding penalties or political agitators, etc. likely to create international tensions or persons who may disgrace our country abroad. To conclude : whatever the view of countries like the U.S.A. where travel is a means of spending one's wealth, the better view in our country is that a person is ordinarily entitled to a passport unless, for reasons which can be established to the satisfaction of' the Court, the passport can be validly refused to him.”

(p454, The Judicial Application of Human Rights Law, by Jayawickrama, Nihal)

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Under Hong Kong law, non-residents were afforded all of the rights as residents except for the right of abode. A citizen of Nepal in 1995 moved to Hong Kong as a dependant to his wife, a permanent resident of Hong Kong. He developed two businesses. In 1997, after traveling abroad, he was denied entry into Hong Kong in concordance with a change in Hong Kong law that had occurred. The Court of Final Appeal held that the Nepalese citizen, even though not a permanent resident, was allowed to re-enter the country. Under the Basic Law (which had incorporated the ICCPR), non-permanent residents of Hong Kong had the right to travel. To restrict his ability to travel would be to act against the spirit of the protections afforded by the Basic Law.

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The passport of the daughter-in-law of the former prime minister was impounded on the ground that her presence was likely to be required in connection with the proceedings of ca commission of inquiry. The Court held that an order impounding a passport must be made quasi-judicially. The audi alteram partem rule (no judgment without a fair hearing) must be regarded as incorporated in the passport law by necessary implication, since any procedure which dealt with the modalities of regulating, restricting, or even rejecting a fundamental right has to be fair, not "arbitrary, freakish or bizarre".

“Things have changed, global awareness has dawned. The European Convention on Human Rights and bilateral understandings have made headway to widen freedom of travel abroad as integral to liberty of the person. And the universal Declaration of Human Rights has proclaimed in Article 13, that every one has the right to leave any country including his own, and to return to his country. This human planet is our single home, though geographically variegated, culturally diverse, politically pluralist in science and technology competitive and co-operative in arts and life-styles a lovely mosaic and, above all, suffused with a cosmic unconsciousness of unity and inter- dependence.”

(p459, The Judicial Application of Human Rights Law, by Jayawickrama, Nihal)

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