OFW ‘exit permits’: unconstitutional?


12:12 AM July 14th, 2011

By: Rigoberto Tiglao, July 14th, 2011 12:12 AM

As ambassador not only to Greece but also Cyprus, I was bothered by reports that Filipinas were being unwittingly lured into prostitution to Cyprus’ then-booming nightlife districts. Reports were that they were exiting the country without the papers required by government, and they were able to do so as they were being escorted through the international airport’s gates by corrupt immigration officials.

On vacation in Manila, I bugged a high-ranking Bureau of Immigration and Deportation official to do something about it, and he promptly ordered his assistant to look into the allegations. Over coffee at his office, he asked rhetorically: “Do you know that we are really on very thin ice over having to check if departing OFWs have the proper exit clearances?”

“The freedom to leave the country, for any reason, is a fundamental human right guaranteed under the Constitution,” explained the immigration official, a lawyer. “Government can prevent you from travelling only with a court order, and practically solely on grounds that you have to be in the country to face charges filed against you. It just so happens that nobody has asked the Supreme Court to rule on the practice’s constitutionality, so we just assume it’s constitutional.”

I think he’s right. The Philippine Overseas Employment Authority’s “exit clearances” for migrant workers and the BID’s harassing of travelers to check whether they are “real” tourists or OFWs without POEA papers may in fact be unconstitutional. Indeed, the absurdity and useless expenditure of time and money by OFWs for these exit clearances were vividly described by Stella Gonzales in a much-read article in this newspaper.

Section 6 in our Constitution’s Bill of Rights says: “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 right is also emphasized by United Nations conventions that we have ratified. The UN Convention on Human Rights of 1948 states: “Everyone has the right to leave any country, including his own.” The International Covenant on Civil and Political Rights of 1966 says: “Everyone shall be free to leave the country, including his own.”

That migrant workers enjoy the same freedom of movement was also emphasized by the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: “Migrant workers and members of their families shall be free to leave any state, including their state of origin.” (Article 8)

The exceptions under the Constitution and the UN conventions deal with the traveler’s possible public impact: “except in the interest of national security, public safety, or public health.” Philippine regulations requiring exit clearances are purportedly intended to protect the traveling worker, that is, “for their own good.”

We may be in fact the only country which has a de facto class discrimination system in place in our airports: counters for OFWs, where they are required to show their exit clearances, or else they won’t be allowed to leave.

Obviously ignorant of this fundamental human right, Immigration Commissioner Ricardo David, former Armed Forces chief of staff, had the gall to respond to complaints that his staff were harassing departing Filipinos by saying: “They should understand that we are doing this to protect our poor countrymen form being victimized by criminal syndicates.”

By “this,” he meant immigration officers interrogating travelers to determine if they are “legitimate tourists,” and even requiring that they show their income tax returns, bank accounts and employment certificates. David was oblivious of the fact that the BID does not have, nor will it ever have, real criteria to determine what level of income and what amount of bank deposit one needs to have in order to be considered a “legitimate” tourist. Indeed, there have been reports of wealthy but sloppily dressed tourists being prevented by immigration officers from boarding their planes.

That the freedom to travel is a fundamental right under a democratic system is emphasized by the fact that it is curtailed only mostly in authoritarian governments, such as the People’s Republic of China for most of the last century, the former USSR, Cuba, North Korea and Myanmar.

The issue will likely be brought up when it is the Philippines’ turn to be scrutinized by the UN Committee on the Protection of all Migrant Workers and Members of Their Families. When the committee evaluated in 2007 Ecuador’s compliance with migrant workers’ rights, it reported:

“The Committee notes that according to (its) Migration Law, Ecuadorians wishing to leave the country need an ‘exit permit’ issued by the Migration Service… The Committee recommends that the state party eliminate the requirement of the ‘exit permit’ for nationals wishing to leave Ecuador, in accordance with article 8 of the convention.”

The Philippine equivalent of Ecuador’s “exit permit” is obviously the POEA’s exit clearance.

But any debate on whether this or that is constitutional or not is really moot, since it is the Supreme Court which has the absolute say on this. Other than a case questioning only certain provisions of the Migrant Workers Law of 1995, no suit has been filed in the Court asking for a ruling whether exit clearances are constitutional or not.

I hope organizations claiming to represent OFWs or even an association of tourist agencies will file a case and ask the Supreme Court for a ruling on this issue. After all, the freedom to travel is a universal human right, which government may be blatantly violating.

My e-mail: tiglao.inquirer@gmail.com

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