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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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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In February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people power" revolution and forced into exile. Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.

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This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

Court ruling

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 Humans 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 Declaration speaks of the "right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those pertaining to the liberty of abode and the right to travel.

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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).]

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What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar to the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or denied.

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The President has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved during the past few years and lead to total economic collapse. Given what is within our individual and common knowledge of the state of the economy, we cannot argue with that determination.

The petitioner carried on the business of import, export and the  manufacture of automobile parts and in connection with his business it was necessary for him to travel abroad. For this  purpose  he was holding two valid passports   when  on August 31, 1966 and on September 24, 1966 the first and the second respondents, being the Assistant Passport Officer  at New  Delhi and the Regional Passport Officer  at  Bombay respectively  wrote  to the petitioner calling upon  him to surrender the two passports as the Central Government had decided to withdraw the passport facilities extended to him.

Court ruling

In any event, there is no absolute right to demand a passport because that is not a right to personal liberty even in the Blackstonian sense. The passport being a political document, is one which the State may choose to give or to withhold. Since that document vouches for the respectability of the holder, it stands to reason that Government need not vouch for a person it does not consider worthy. This is not to say that we are insensible to the importance of travel, so adequately described by writers and judgments. Those observations apply to the bulk of the people to whom passport is generally never refused. What we are concerned with is a slender body of persons whose travel' abroad is considered harmful to the larger interests of our country and who themselves are in any event undesirable emissaries of our nation and who might, if allowed to go abroad, cause many complications. A system of passports is thus essential and requires a wide discretion.

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 :...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. Since an aggrieved party can always ask for a mandamus if he is treated unfairly, it is not open, by straining the Constitution, to create an absolute and fundamental right to a passport where none exists in the Constitution. There is no doubt a fundamental right to, equality in the matter of grant of passports (subject to reasonable classifications) but there is no fundamental right to travel abroad or to the grant of a passport. With all due respect we say that the Court has missed one for the other. The solution of a law of passports will not make things any better. Even if a law were to be made the position would hardly change because the utmost discretion will have to be allowed to decide upon the worth of an applicant. The only thing that can be said is that where the passport authority is proved to be wrong, a mandamus will always right the matter.