“Travel is fatal to prejudice, bigotry, and narrow-mindedness.” – Mark Twain
Since recorded history and even beyond the founding of civilized society, the passion for travel had enticed the minds and physical abilities of men. Man has been traveling for eons for different reasons. It may be for food, shelter, fear of danger, or for mere survival. The Filipino ancestors were not spared from this instinctive nature. They traveled far and wide, reaching the shores of the Americas and even the island of Madagascar. It is through travel that the West found the East and Magellan discovered the Philippines.
As civilization grew within the human realm, and as republics and monarchies were founded, this very basic instinct to travel was enshrined as a basic right for every man. Man’s passion for travel is part of natural law.
But for every rule, exceptions were always formed – to enforce order, safety, and peace. The very basic lifeblood of every civilized government, along with taxes, is the control of its people, the only way to prevent chaos and anarchy.
The right to travel may be restricted on certain cases.
The 1987 Philippine Constitution was not saved from recognizing this human nature. It is just befitting since our basic law was only copied from another advanced democracy. Section 6 of Article III (Bill of Rights) of the current Constitution provides that, “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.”
A reading of the above provision will tell us that the Constitution did not create the right to travel. Before the passing of our Constitution, this right has already been there. It is part of the existence of man, and of every Filipino. What the Constitution did was to affirm the existence of this human instinct and to recognize that it is a right of every citizen to exercise. The Constitution declares that ‘to travel’ or to move from place to place, is the general rule.
As previously stated, to enforce control over the populace, a government should impose limitations to instill discipline among its people. Our Constitution enumerates the three limits that may prevent an individual to exercise this right. These are national security, public safety, and public health. However, the Constitution likewise provides the manner in which these states or conditions may be enforced – and that is, when there is a law providing for their causes and reasons. This is the meaning of the clause “as may be provided by law”.
And who then has the authority to curtail one’s right to travel?
There is no other branch of government other than the Judiciary that has the absolute authority to prevent someone from traveling. This authority covers the power to forbid an individual from leaving even through the use of arbitrary discretion. And what do we mean by arbitrary discretion? It is the judgment exercised by a person based on his discretion and not fixed by law.
The following example distinguishes arbitrary discretion from ministerial duty (fixed by law):
The law provides that all persons possessing fraudulent passports shall not be permitted to leave the country. This mandate is fixed by law. Thus, anyone caught possessing a fraudulent passport, maybe through electronic scanning of the device and confirmation with the Department of Foreign Affairs, shall not be allowed to leave. This authority is only mechanical and does not give any discretion to the person in authority.
But the authority is with arbitrary discretion when even possessing a valid passport, the person holding the passport is not allowed to leave by the person in authority. It means that the person in authority has the discretion to rule beyond the confines of what was fixed by law.
In our system of government, who possesses arbitrary discretion and who has only ministerial duty when it comes to the curtailment of travel?
The Supreme Court ruled in the case of Ricardo C. Silverio vs. Court of Appeals [G.R. No. 94284, April 8, 1991] –
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of “national security, public safety, or public health” and “as may be provided by law,” a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263).
The ruling of the Supreme Court tells us that executive authorities or administrative authorities are not allowed to exercise arbitrary discretion when preventing someone from leaving the country. All they have to do is impose what is fixed by the law.
One may take note of the limits set above, which are – national security, public safety, or public health. Likewise, observe the conjunctive “and” that follows the limitations joining the enumerations to the phrase “as may be provided by law”. This means that the administrative authority cannot on its own define and subjectively determine what are cases of national security, public safety, or public health, this must first be provided by the law. The parameters must be first set by law and they should ONLY work within its bounds without exercising any discretion. Otherwise, a leeway on discretion will result to abuse.
APPLYING THE ABOVE LAWS AND JURISPRUDENCE ON THE CASE OF THE BUREAU OF IMMIGRATION
It is worthwhile to examine the law which is the anchor of the Immigration Office in the exercise of its authority to prevent or offload citizens from leaving. It is equally important to know the authority or tasked imposed by the said law to the Immigration Office in its enforcement.
RA 9208 “Anti-Trafficking in Persons Act of 2003” [link – http://www.lawphil.net/statutes/repacts/ra2003/ra_9208_2003.html%5D
x x x Section 2.Declaration of Policy. – It is hereby declared that the State values the dignity of every human person and guarantees the respect of individual rights. In pursuit of this policy, the State shall give highest priority to the enactment of measures and development of programs that will promote human dignity, protect the people from any threat of violence and exploitation, eliminate trafficking in persons, and mitigate pressures for involuntary migration and servitude of persons, not only to support trafficked persons but more importantly, to ensure their recovery, rehabilitation and reintegration into the mainstream of society. x x x
(f) Bureau of Immigration (BI) – shall strictly administer and enforce immigration and alien administration laws. It shall adopt measures for the apprehension of suspected traffickers both at the place of arrival and departure and shall ensure compliance by the Filipino fiancés/fiancées and spouses of foreign nationals with the guidance and counseling requirement as provided for in this Act. x x x
The Rules and Regulation Implementing the “Anti-Trafficking in Persons Act of 2003” [link – http://www.scribd.com/doc/4664952/Rules-and-Regulations-Implementing-Republic-Act-No-9208-Antitrafficking-Act] was also promulgated as guidelines for the enforcement of the law. The Bureau of Immigration’s tasks are as follows:
(f) Bureau of Immigration (BI)
(i) Strictly administer and enforce immigration and alien registration laws;
(ii) Adopt measures for the apprehension of suspected traffickers both at the place of arrival anddeparture;
(iii) Ensure compliance by the Filipino fiancés/ fiancées and spouses of foreign nationals with thepredeparture and counseling program requirement of the Act;
(iv) Strictly implement the requirement for a parental travel authority duly processed by the DSWD for minors traveling abroad unaccompanied by one parent, and the travel clearance for minors traveling abroadunaccompanied by both parents;
(v) Ensure compliance by Overseas Filipino Workers of the departure requirements of the POEA;
(vi) Conduct periodic training and seminar on fraudulent document detection and passenger assessmentto enhance the level of skill and competence of all its immigration officers and agents in document frauddetection;
(vii) Conduct periodic study of the trends, routes and modus operandi employed by the traffickers includingits recruitment base, transit countries and country of destination;
(viii) Establish a network with other law enforcement agencies and immigration counterparts of source, transit and destination countries to facilitate exchange and sharing of information on the activities of trafficking syndicates;
(ix) Establish network with LGUs for the effective apprehension of suspected traffickers and their cohorts;
(x) Develop a program for the procurement and installation of International Civil Aviation Organization(ICAO) — compliant machine readers and fraud detection equipment at all international airports andseaports in the country to deter trafficking in persons; and(xi) Develop and distribute materials containing advisory and other pertinent information to enhance awareness against trafficking in person
A careful reading of the authorities granted to the Bureau by the law would show that there is no authority given to exercise arbitrary discretion to prevent passengers from leaving the country. RA 9208 is the law cited by the Constitution that limits a Filipino’s right to travel. This law, in order to be effective, must be implemented. There are several agencies mentioned in this law that are tasked to carry on their different assignments and one of them is the Bureau of Immigration.
However, on June 30, 2011, the Bureau of Immigration issued MEMORANDUM ORDER RADJR NO.-2011- 011. This memorandum is entitled “Strengthening the Travel Control and Enforcement Unit (TCEU) under Airport Operations Division (AOD) and defining the Duties and Functions Thereof” [link – http://immigration.gov.ph/index.php?option=com_content&task=view&id=845&Itemid=103]. In this administrative issuance, the Bureau mandated in number 4(A) –
4. All TCEU officers and members, in accordance with the AOD organizational structure, shall perform the following duties and functions:
A) During Departures, TCEU officers and members are duty-bound to:
i) Implement strict departure formalities for certain Philippine nationals pursuant to Memorandum Order No. RPL-10-004 dated 09 August 2010, in relation to Republic Act No. 9208, otherwise known as the “Anti-Trafficking in Persons Act of 2003” and its Implementing Rules and Regulations (IRR);
ii) Conduct, in a respectful and professional manner, interview of passengers referred for secondary inspection by the duty supervisor or the duty immigration officers at the counter to determine their purpose of travel. All passengers subject for interview by the TCEU must fully accomplish the BI Indicator Checklist to determine purpose of travel. The TCEU officer/member shall conduct the interview of passengers for secondary inspection at the duly designated TCEU counter. The interviewing TCEU member/officer must clearly indicate on the indicator list the requirements presented by the interviewed passenger, the result of the inspection, whether allowed or disallowed to leave the country, and the basis of such decision.
iii) Conduct redundancy check on travel documents of departing passengers;
iv) Offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking.
v) Document and report any person verified to be escorting passengers and facilitating and/or influencing the decision and evaluation of immigration officers, supervisors and TCEU members on admissibility or excludability of passengers expert upon specific clearance from the Immigration Commissioner; and x x x
No. 4(A)(iv) of the Memorandum expressly provides for the offloading of passengers not only found with fraudulent travel documents. The Bureau however also added two (2) new provisions:
- passengers who have doubtful purpose of travel; and
- passengers who are possible victims of human trafficking.
Is it not that the two added tasks for immigration officers are not found in the RA 9208 and its Implementing Rules? Is it not that these functions require arbitrary discretion on immigration officers to prevent someone from leaving the country? Please concentrate on the words doubtful purpose and possible victims.
Part III Next …[a thorough discussion]