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Point of Law

Francisco Ed. Lim

Right to travel

Francisco Ed. Lim

May 10, 2018

After years of uncertainty, the Supreme Court (SC) finally laid to rest whether the Department of Justice, through its chief, may issue hold departure orders (HDOs) and watchlist orders (“WLOs”) to prevent people under investigation from leaving the country.

There were several DOJ circulars (i.e., DOJ Circular No. 17 dated March 1998 and DOJ Circular No. 18 dated April 23, 2007) that gave this power to the Justice Secretary. These circulars were consolidated in 2010 under Circular No. 41 issued by then Justice Secretary Alberto Agra who served under President Gloria Macapagal Arroyo.

Ironically, the same circular was used by Justice Secretary Leila de Lima, during the time of President Benigno Aquino III, to prevent Arroyo and her husband Mike from leaving due to pending plunder cases. More ironically, the circular appeared to have been used this time around against de Lima, one of the fiercest critics of President Duterte.

Foreigners have also expressed concern about Circular No. 41. Rightfully so, because an HDO can be issued against a foreigner under the pretense that his presence is required as a witness in a civil or labor case pending litigation, or any case before an administrative agency of the government. Just imagine the implications if foreign executives need to be reassigned elsewhere in the world by their global headquarters.

The circulars were an attempt by the executive department to fill a purported gap in the law, i.e. court-issued HDOs are only available in criminal cases falling within the exclusive jurisdiction of the regional trial courts (RTCs) and not in other cases—or those within the jurisdiction of lower courts and cases pending determination by government prosecution offices. This gap enabled a person to escape prosecution by simply absconding from the country as long as the criminal case has not yet been filed against him in court.

Despite this glaring practical problem, the SC unanimously voted in Genuino vs De Lima (dated April 17, 2018) that DOJ Circular No. 41 was unconstitutional for violating the right to travel. It reasoned that the circular has no legal basis because there was no law which granted the Secretary of Justice the power to issue HDOs and WLOs. The power to restrict travel must be firmly rooted in law, it said.

The Constitution clearly provides: “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.”

The decision is a most welcome news to our citizens and foreigners alike. The landmark decision, penned by Justice Andres Reyes Jr., gives more meaning to the right to travel. Equally welcome was the pronouncement of newly designated Justice Secretary Meynard Guevarra that he would abide by the decision.

The decision is especially important to local businessmen and Philippine-based foreign employees who oftentimes need to travel at a moment’s notice. I have personally witnessed them being greatly inconvenienced or even harassed by an HDO or WLO, or their equivalents like an immigration lookout bulletin order.

The decision will unburden businessmen from the inconvenience of asking for an allow departure order (ADO) from the DOJ whenever they need to travel abroad for business. Millions of pesos, if not billions, in investments will be saved as a consequence of the high court’s decision. Truly, the opportunity cost and reputational damage that DOJ Circular 41 and its predecessor circulars have caused to the country would be difficult to recover.

Having said that, there is a need to balance the right to travel with the duty of the government to prosecute offenses. The morale of the story is that there is a need to enact a new law authorizing the Secretary of Justice to issue HDOs and WLOs or their equivalent. To this end, Congress may want to fast-track House Bill 2489. Congress can also revisit Senate Bill 3069 authored by late Senator Miriam Defensor Santiago. The bill is similar to House Bill 2489, but it requires the DOJ to apply with the RTC for the issuance of HDOs.

Of course, whatever law Congress passes must conform to the Constitution, i.e., the right to travel may be impaired only in the interest of national security, public safety or public health. No other ground can be provided by Congress to curtail this constitutional right. The new law must also comply with the due process requirements of the Constitution. Otherwise, the law will suffer the same fate as DOJ Circular No. 41.