“The right to travel is a fundamental right” (Interview transcript – 15 November 2011)

16 Nov

The Supreme Court decision to issue a temporary restraining order against the Department of Justice’s watch-list order against the Arroyos was an exhibition of judicial sagacity and sobriety.

The Constitution provides “Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health”. Therefore, the right to travel is a constitutionally protected right, or in other words, it is a fundamental right. The right to travel means that if there’s any doubt if a citizen can travel or not, the doubt must be resolved in favor of the citizen.  That is the meaning of the fact that the right is protected, not in an ordinary bill, but in the constitution itself.

The constitutional provision allows only three exceptions. They are national security, public safety, and public health. The administration has disallowed Rep. Arroyo from going abroad on the ground of national interest. Notice that in the language of the constitution, national interest is not an exception. It is a very serious and grave mistake. To think that national security, public safety, or public health can be interchanged with public interest, they are putting words in the mouth of the Constitution. That is why the Supreme Court ruling is correct. And it is also significant that the Constitutional provision provides that there could be three exceptions as may be provided by law, meaning a law passed by Congress. Congress has never passed a law defining for us what is the meaning of national security, public safety, or public health. Therefore, in my view, the Supreme Court has no choice but to allow Rep. Arroyo to travel. In fact, it should have struck down entirely the entire watch-list practice of the Department of Justice. The Department of Justice has no constitutional or legal basis—legal from the point of view of the Congress as legislature—for issuing watch-list hold orders or hold departure orders on its own. It must prove that there is a law that authorizes it. It only invokes its own Memorandum Circular No. 41. An agency cannot grant power to itself by issuing a memorandum circular. It is basic for an agency seeking power must be able to source that power from an enactment of the Congress of the Philippines, duly signed into law by the President. The memorandum circular is self-serving, and it’s not worth the paper it is written on.

I am very glad that this is the decision of the Supreme Court not only because I predicted it, but also because I believe that here we find the Supreme Court impervious to political considerations. This issue has been overblown. We have emphasized too much its political aspect. It is a simple constitutional issue. Does a person have a right to travel? Answer: Yes, as a general rule. Question: Are there any exceptions where a person can be prevented from travelling? Answer: Yes, in three cases, but we don’t know what these cases are because Congress has never defined what is national security, public safety, and public health. We cannot go by the opinion of somebody no matter how high his position is in government. Only Congress, and even the Supreme Court, can tell us what are these three exceptions. Therefore, in default of congressional definition, there should be a presumption that the citizen has a right to travel and the burden of proof is on the Solicitor General as representative of the government.  This is a good job on the part of the Supreme Court. I commend the Supreme Court.

Within the constitutional vocabulary, you have to look at the Constitution word per word. The Constitution says you can prevent a person like Rep. Arroyo from traveling if she poses a threat to national security—not the security of one person, one group, or one party, but the security of the entire nation, or safety of the entire nation, or the health of the entire nation. If that does not involve a nationwide scale, then there can be no exception—she has the right to travel.

In the case of, for example, national security: People are saying “she will be a risk to national security if we allow her to go”, “she might go to a country where there is no extradition treaty with the Philippines”, then assuming that she would be tried in absentia and found guilty, then she (Sec. De Lima) will be unable to force her (Rep. Arroyo) to serve out her sentence. That is the reasoning.  That is so full of holes. In the first place, a country does not need an extradition treaty with the Philippines to be able to deport a Filipino if it wants to on the grounds that that Filipino is an undesirable alien. It is not true that just because a country has no extradition treaty does not necessarily signify that Rep. Arroyo deliberately chose those countries because she wants to hide there. She can be deported by the country without any request from the country, depending on our relations with that country.

Secondly, she is seeking medical assistance. That falls under the right to health, which is also a fundamental right or a constitutionally protected right. In medical ethics, a patient should not be forced to accept any doctor or medication except through his informed consent. So you cannot say “We are just going to give her another doctor”, “She can have another replacement for her neckbrace or some other contraption” . That is not allowed in medical ethics.

Rep. Arroyo is said to be attempting to flee the judicial system in our country. Number one: May I remind you, ladies and gentlemen, you cannot proceed with a trial unless the accused has been arraigned. So to assume that she will be tried in absentia is to assume nonsense because that person can’t have a trial against her unless she has been arraigned first. In addition, her enemies simply presume that she will be found guilty. That is speculation. Finally, notice that the exceptions in the Constitution are national security, public safety, and public health. There is no mention of ‘national justice’. Let’s say that the all allegations against Rep. Arroyo are correct, and she is able to escape justice. Still, that would be a denial of justice for the Filipino people, but it does not fall under the constitutional exceptions to the rule. #

12 comments on ““The right to travel is a fundamental right” (Interview transcript – 15 November 2011)

  1. the right to travel is constitutionally protected, except: national security, public safety and public health…there is no question on this….however, is it also right to say that by granting TRO, in effect, the SC is declaring the Watchlist Order or the Memorandum Circular of the Department of Justice unconstitutional?

  2. Question. Why would the SC decide on something unconstitutional then? They dont need to get that 2M bond and decide on the matter if it is not even written in the law, am i right? Voting means they acknowledge DOJ’s authority over issuance of that watch list. And lastly, the arroyos are prime suspects of that election fraud investigation. why would we allow the suspect to flee? isn’t that morally wrong?

  3. This is soooo basic. How can De Lima miss this one. She has been making a lot bad decisions. And so is our dear President. Better stop smoking else all of your secretaries who are pregnant can make a better and sound decision. Stop Smoking so all of your subordinates can read well the consitution and not be disrupted by the smoke of your cigarette. That is why SMOKING is BAD kahit One stick Lang!!!

  4. Senator u have explained it very clearly and comprehensively….hanga po ako sa inyo….please enlighten me po, but this is another topic po not related to this one….one fact that I do not like about in the SC (I might be wrong) I do not like that the SC justices are appointed by presidents … can this practice be changed?

  5. You are the best! I personally agree that Mrs. Arroyo’s rights were trampled upon and I think GMA had no idea that the very people who are suppose to serve justice (De Lima ) would give her that kind of treatment and human right violation. It is sad that Arroyo does not have the masses support. If I was GMA I should have left the minute PNoy stepped into office. A clear persecution by pubkucity . Shame on De Lima. Shame on ONly. Please do not approve her for CA she should go to jail and and is a brat.

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