GMA wins battle for right to travel

The Supreme Court unanimously voided Department of Justice Circular No. 41 (DOJ 41) for being unconstitutional and upheld the constitutional right to travel of former president Gloria Macapagal Arroyo and several others. DOJ 41 authorized the secretary of justice to issue “hold departure orders” or HDOs, “watchlist orders” or WLOs and “allow departure orders” or ADOs on those intending to travel.

Primacy of liberty. Invoking DOJ 41, then Justice Secretary Leila de Lima (now a detained senator) ordered immigration officers to stop Arroyo and her husband, Jose Miguel Arroyo, from boarding an international flight at the Ninoy Aquino International Airport on Nov. 15, 2011, to seek medical treatment abroad.

However, the 50-page landmark decision (Genuino vs De Lima, April 17, 2018), masterfully penned by Justice Andres B. Reyes Jr., held: “The right to travel is part of the ‘liberty’ of which a citizen cannot be deprived without due process of law.”

Paraphrasing the Constitution, Justice Reyes explained that the right cannot be limited or “impaired except in the interest of national security, public safety or public health,” and the limitation must be explicitly contained in a “statutory law or the Rules of Court,” not in a mere administrative issuance.

The strict limitation “was purposely added to prevent inordinate restraints on a person’s right to travel by administrative officials … Surely, the DOJ must have the best intentions in promulgating [DOJ 41], but the end will not justify the means. To sacrifice individual liberties because of a perceived good is disastrous to democracy.”

“Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the DOJ of empowering itself under the pretext of dire exigency or urgent necessity.” Unlike the courts, the DOJ does not have the inherent power “to restrict the right to travel in any way.”

Particularly reassuring is the reported willingness of new Justice Secretary Menardo I. Guevarra to abide by this unanimous ruling.

DOJ’s dilemma. Having invalidated DOJ 41, Justice Reyes was not unmindful of the “dilemma of the DOJ” in preventing the flight of suspects particularly in capital offenses. The solution, according to him, is “for the legislature … to identify permissible intrusions in the right to travel” and for the DOJ to exercise “more vigilance and efficiency.”

Moreover, in a becoming demonstration of collegiality, Justice Reyes endorsed the separate concurring opinions of his colleagues showing that the government is not “completely powerless” to address the DOJ’s dilemma, thus:

Acting Chief Justice Antonio T. Carpio cited the Philippine Passport Act of 1996 (Republic Act No. 8239) granting the secretary of foreign affairs or any authorized consular officer “the authority to issue, verify, restrict, cancel or refuse the issuance of a passport…”

Justice Presbitero J. Velasco Jr. proposed the “adoption of a new set of rules which [would] allow the issuance of a precautionary warrant of arrest.”

Justice Noel G. Tijam wrote on “Memorandum Circular No. 036 … issued pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of 2003 as amended … which authorizes the [Bureau of Immigration] to hold the departure of suspected traffickers or trafficked individuals.”

Teehankee Centenary. Aptly, the yearlong centenary celebration to honor the late Chief Justice Claudio Teehankee was kicked off by a Mass, a commemorative program, and a luncheon at his alma mater, Ateneo de Manila, last April 18, his 100th birthday.

Among the many activities sponsored by the Claudio Teehankee Foundation is a unique “Case Quote” contest from decisions of the late chief. One of the winners, Ernest Elach Eleazar, submitted this quotation from Moral vs Barro (Sept. 28, 1973) addressed to all magistrates, past and present:

“… [J]udges should strive always to exercise due care and diligence in the study and determination of cases before their courts. Courts should ever seek to render their decisions with the utmost care and thoroughness and with the conviction that the decisions so rendered are just, fair and equitable…”

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