Liberty of Abode and Right to Travel, A3S6 1987 Constitution

1. Concept

1) Liberty of abode – refers to the right to choose where to live and move to a different residence.

2) Right to travel – under the 1987 Constitution, refers to the right to travel within the Philippines.

3) Right to return to one’s country – under international law, refers to the right to go back to one’s home country.

2. Liberty of abode

SECTION 6. 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. x x x

1) Liberty under the foregoing clause includes the right to choose one’s residence, to leave it whenever he pleases and to travel wherever he wills. Thus, in Zacarias Villavicencio vs. Justo Lucban, the Court held illegal the action of the Mayor of Manila in expelling women who were known prostitutes and sending them to Davao in order to eradicate vices and immoral activities proliferated by the said subjects. It was held that regardless of the mayor’s laudable intentions, no person may compel another to change his residence without being expressly authorized by law or regulation. (Genuino v. De Lima, En Banc, G.R. No. 197930, April 17, 2018, Per Reyes, JR., J.)

2) The right to change abode… [is] not [an] absolute [right]. (Yap, Jr. v. CA, G.R. No. 141529, June 6, 2001, Per Gonzaga-Reyes, J.)

Yap v. CA, G.R. No. 141529, June 6, 2001, Per Gonzaga-Reyes, J.:

• Petitioner also contests the condition imposed by the Court of Appeals that he secure “a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court”, claiming that the same violates his liberty of abode and travel.

• Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines unless expressly permitted by the court which issued the order.In fact, the petition submits that “the hold-departure order against petitioner is already sufficient guarantee that he will not escape. Thus, to require him to inform the court every time he changed his residence is already unnecessary.”

• The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states:

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 order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision.The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so.

2. Right to travel

SECTION 6. x x x 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.

Related provisions:

Art. 13. Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country including his own, and to return to his country. (Universal Declaration of Human Rights)

1) The right to travel is part of the “liberty” of which a citizen cannot be deprived without due process of law. It is part and parcel of the guarantee of freedom of movement that the Constitution affords its citizen. (Genuino v. De Lima, En Banc, G.R. No. 197930, April 17, 2018, Per Reyes, JR., J.)

2) The right to… travel within the Philippines… [is] not [an] absolute [right]. (Yap, Jr. v. CA, G.R. No. 141529, June 6, 2001, Per Gonzaga-Reyes, J.)

3) [T]he exercise of one’s right to travel or the freedom to move from one place to another is not absolute. “There are constitutional, statutory, and inherent limitations regulating the right to travel.” (Pichay v. Sandiganbayan, G.R. Nos. 241742, 241753, May 12, 2021, Per Delos Santos, J.)

4) The right to travel and to freedom of movement is a fundamental right guaranteed by the 1987 Constitution and the Universal Declaration of Human Rights (UDHR) to which the Philippines is a signatory. (Pichay v. Sandiganbayan, G.R. Nos. 241742, 241753, May 12, 2021, Per Delos Santos, J.)

a. Limitations

SEC. 6. x x x 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. (Emphasis supplied)

1) How right to travel may be imapaired:

(1) Grounds: national security, public safety, or public health; and

(2) A law authorizing impairment.

2) Based on the foregoing, the right to travel may be impaired, if necessary, in interest of national security, public safety or public health. Apart from the presence of these exclusive grounds, there is a further requirement that there must be a law authorizing the impairment. The requirement for a law ensures that the necessity for the impairment has undergone the validation and deliberation of Congress before its enactment. The strict requirement for the concurrence of these two elements are formidable enough to serve as safeguard in the full enjoyment of the right to travel. (Garcia v. Sandiganbayan, G.R. No. 205904-06, October 17, 2018, Per A. Reyes, JR., J.)

Genuino v. De Lima, En Banc, G.R. No. 197930, April 17, 2018, Per Reyes, JR., J.:

• [T]here are only three considerations that may permit a restriction on the right to travel: national security, public safety or public health. As a further requirement, there must be an explicit provision of statutory law or the Rules of Court providing for the impairment. The requirement for a legislative enactment was purposely added to prevent inordinate restraints on the person’s right to travel by administrative officials who may be tempted to wield authority under the guise of national security, public safety or public health. This is in keeping with the principle that ours is a government of laws and not of men and also with the canon that provisions of law limiting the enjoyment of liberty should be construed against the government and in favor of the individual.

• The necessity of a law before a curtailment in the freedom of movement may be permitted is apparent in the deliberations of the members of the Constitutional Commission. In particular, Fr. Joaquin Bernas, in his sponsorship speech, stated thus:

On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase “and changing the same” is taken from the 1935 version; that is, changing the abode. The addition of the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether the rights be impaired on order of a court or without the order of a court, the impairment must be in accordance with the prescriptions of law; that is, it is not left to the discretion of any public officer.

• It is well to remember that under the 1973 Constitution, the right to travel is compounded with the liberty of abode in Section 5 thereof, which reads:

Section 5, 1973 Constitution: The liberty of abode and of travel shall not, be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health. (Emphasis ours)

• The provision, however, proved inadequate to afford protection to ordinary citizens who were subjected to “hamletting” under the Marcos regime. Realizing the loophole in the provision, the members of the Constitutional Commission agreed that a safeguard must be incorporated in the provision in order to avoid this unwanted consequence. Thus, the Commission meticulously framed the subject provision in such a manner that the right cannot be subjected to the whims of any administrative officer. In addressing the loophole, they found that requiring the authority of a law most viable in preventing unnecessary intrusion in the freedom of movement…

• It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the court and, on the one hand, the right to travel may only be impaired by a law that concerns national security, public safety or public health. Therefore, when the exigencies of times call for a limitation on the right to travel, the Congress must respond to the need by explicitly providing for the restriction in a law. This is in deference to the primacy of the right to travel, being a constitutionally-protected right and not simply a statutory right, that it can only be curtailed by a legislative enactment.

More: Genuino v. De Lima (2018)*

1) Grounds: National security, public safety, public health

Genuino v. De Lima, En Banc, G.R. No. 197930, April 17, 2018, Per Reyes, JR., J.:

• [I]n Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon, the Court upheld the validity of the Department Order No. 1, Series of 1988, issued by the Department of Labor and Employment, which temporarily suspended the deployment of domestic and household workers abroad. The measure was taken in response to escalating number of female workers abroad who were subjected to exploitative working conditions, with some even reported physical and personal abuse. The Court held that Department Order No. 1 is a valid implementation of the Labor Code, particularly, the policy to “afford protection to labor.” Public safety considerations justified the restraint on the right to travel.

Silverio v. CA, G.R. No. 94284, April 8, 1991, Per Melencio-Herrera, J.:

• Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the grounds of “national security, public safety, or public health.”

• The submission is not well taken.

• 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). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).

• Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court).

Petitioner’s argument that the ruling in Manotoc, Jr., v. Court of Appeals…, to the effect that the condition imposed upon an accused admitted to bail to make himself available at all times whenever the Court requires his presence operates as a valid restriction on the right to travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that point was but a re-affirmation of that laid down long before in People v. Uy Tuising, 61 Phil. 404 (1935).

• Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear before the Court when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an accused were to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes.

Pichay v. Sandiganbayan, G.R. Nos. 241742, 241753, May 12, 2021, Per Delos Santos, J.:

• As stated under the 1987 Constitution, courts can impair the right to travel on the grounds of “national security, public safety, or public health” and “as may be provided by law.”

• Apart from constitutional limitations, there are also statutory and inherent limitations. In Leave Division, OAS, OCA v. Heusdens, the Court enumerated some of the statutory limitations on the right to travel:

1) The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law restricts the right to travel of an individual charged with the crime of terrorism even though such person is out on bail.

2) The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen.

3) The “Anti-Trafficking in Persons Act of 2003” or R.A. No. 9208. Pursuant to the provisions thereof, the Bureau of Immigration, in order to manage migration and curb trafficking in persons, issued Memorandum Order Radjr No. 2011-011, allowing its Travel Control and Enforcement Unit to “offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking” from our ports.

4) The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No. 8042, as amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA) may refuse to issue deployment permit to a specific country that effectively prevents our migrant workers to enter such country.

5) The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement of an individual against whom the protection order is intended.

6) Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption Board may issue rules restrictive of an adoptee’s right to travel “to protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child.”

• In the present case, Pichay assails the HDO issued against him by the Sandiganbayan, stating that none of the allowable restrictions as provided for in the Constitution apply in his case.

We disagree.

• [T]he HDO issued by the Sandiganbayan is but an exercise of its inherent power to preserve and maintain the effectiveness of its jurisdiction over the case and the person of Pichay.

• The provisions stated in the Constitution, as well as the UDHR, should by no means be construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law, jurisdiction is conferred on a court or judicial officer, all auxiliary writs, process, and other means necessary to carry it into effect may be employed by such court or officer.

• Further, in this case, Pichay posted bail under the obligation that he will hold himself amenable at all times to the orders and processes of the court.

• The condition imposed upon Pichay to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel.

• Criminal prosecutions should be allowed to run their course without undue delay. Pichay, as one facing criminal charges with the People of the Philippines as the offended party, should hold himself amenable to court orders and processes at all times. Otherwise, such orders and processes would serve no purpose if he would be allowed to leave the country, outside the reach of the courts. An accused in a criminal case may be issued an HDO, as a valid restriction on their right to travel, so that they may be dealt with in accordance with law.

2) Authorizing law

Board of Commissions of the Bureau of Immigration v. Wenle, En Banc, G.R. No. 242957, February 28, 2023, Per Gesmundo, C.J.:

• [T]he Fundamental Law makes it a “prime duty” on the part of the State to protect the people and promote general welfare for being “essential for the enjoyment by all the people of the blessings of democracy.” More specifically, it is also provided that the right to travel may be impaired by the State’s exercise of police power in the interest of national security, public safety, or public health as may be provided by law.

• In this regard, such “law” aimed at pursuing the interests of national security, public safety, and public health is embodied in Sec. 8, Chapter 3, Title I, Book III of the Administrative Code of 1987211 (Administrative Code), which provides that: “[t]he President shall have the power to deport aliens subject to the requirements of due process.” The President’s powers and functions as regards to the deportation of aliens are delegated to the Department of Justice which, in turn, exercises the power of control and supervision over the Bureau which has rule-making powers under the law.

Garcia v. Sandiganbayan, G.R. No. 205904-06, October 17, 2018, Per A. Reyes, JR., J.:

• The petitioner may be correct in arguing that there is no law particularly vesting the Sandiganbayan the authority to issue HDOs but this is precisely because the same is not necessary for it to exercise this power.

• It bears reiterating that apart from constitutional limitations, there are also statutory and inherent limitations on the right to travel. In Leave Division, Office of the Administrative Services (OAS)-Office of the Court Administrator (OCA) v. Wilma Salvacion P. Heusdens,63 the Court enumerated some of the statutory limitations on the right to travel, to wit:

1] The Human Security Act of 2010 or [R.A.] No. 9372. The law restricts the right to travel of an individual charged with the crime of terrorism even though such person is out on bail.

2] The Philippine Passport Act of 1991 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen.

3] The “Anti-Trafficking in Persons Act of 2003” or R.A. No. 9208. Pursuant to the provisions thereof, the [BI], in order to manage migration and curb trafficking in persons, issued Memorandum Order Radir No. 2011-011, allowing its Travel Control and Enforcement Unit to “offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking” from our ports.

4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No. 8042, as amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA) may refuse to issue deployment permit to a specific country that effectively prevents our migrant workers to enter such country.

5] The Act on Violence against Woman and Children or R.A. No. 9262. The law restricts movement of an individual against whom the protection order is intended.

6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption Board may issue rules restrictive of an adoptee’s right to travel “to protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child.”

• On the other hand, the power to issue HDO is an exercise of the court’s inherent power to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused.

• Inherent powers are innate and essential faculties that are fundamental to the constitution of an effective judicial system. They are integral to the creation of courts. They do not require legislative conferment or constitutional recognition; they co-exist with the grant of judicial power. Broadly defined, they “consist of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. These powers are inherent in the sense that they exist because the court exists.”

• In other words, this authority flows from the powers possessed by a court simply because it is a court; it is an authority that inheres in the very nature of a judicial body and requires no grant of power other than that which creates the court and gives it jurisdiction.

• Verily, inherent powers are brought into existence by the grant of judicial power to the courts to in 1 Section 1, Article 8 of the 1987 Constitution “to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” As with other jurisdictions, “[t]he Constitution does not circumscribe the means that the courts may invoke on their own initiative to facilitate their exercise of judicial power. Thus, the courts may regularly apply their “inherent powers” to take some action that has not been specifically authorized by the Constitution, written rule, or statute.”

• Contrary to the allegation of the petitioner, the issuance of HDOs is not a mere practice that has ripened into a law or rule. The Sandiganbayan issues HDO because it has the authority to do so and this attaches from the moment it acquired jurisdiction over the case and over the person. In this case, jurisdiction over the case was acquired when the Informations against the petitioner were filed with the Sandiganbayan on July 19, 2012. Thereafter, the petitioner voluntarily submitted herself to the jurisdiction of the court by posting bail of P30,000.00 for each of the cases filed against her.

b. Right to travel vs. Right to return

Marcos v. Manglapus, En Banc, G.R. No. 88211, September 15, 1989, Per Cortes, J.:

• It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right to return to one’s country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to enter one’s country as separate and distinct rights. The Declaration speaks of the “right to freedom of movement and residence within the borders of each state” [Art. 13(l)] separately from the “right to leave any country, including his own, and to return to his country.” [Art. 13(2).] On the other hand, the Covenant guarantees the “right to liberty of movement and freedom to choose his residence” [Art. 12(l)] and the right to “be free to leave any country, including his own.” [Art. 12(2)] which rights may be restricted by such laws as “are necessary to protect national security, public order, public health or morals or enter qqqs own country” of which one cannot be “arbitrarily deprived.” [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one’s country in the same context as those pertaining to the liberty of abode and the right to travel. (Emphasis supplied.)

• The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being “arbitrarily deprived” thereof [Art. 12 (4).]

More: Marcos v. Manglapus (1989)*

c. When in doubt, in favor of constitutional right

Genuino v. De Lima, En Banc, G.R. No. 197930, April 17, 2018, Per Reyes, JR., J.:

• [W]hen there is a dilemma between an individual claiming the exercise of a constitutional right vis-à-vis the state’s assertion of authority to restrict the same, any doubt must, at all times, be resolved in favor of the free exercise of the right, absent any explicit provision of law to the contrary.

• Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which the DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law particularly providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the interest of national security, public safety or public health. As it is, the only ground of the former DOJ Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation of the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral sabotage against them.

• To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere administrative issuance apparently designed to carry out the provisions of an enabling law which the former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the “Administrative Code of 1987.” She opined that DOJ Circular No. 41 was validly issued pursuant to the agency’s rulemaking powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 and Section 50, Chapter 11, Book IV of the mentioned Code.

• It is, however, important to stress that before there can even be a valid administrative issuance, there must first be a showing that the delegation of legislative power is itself valid. It is valid only if there is a law that (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions.

• A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively restricts the right to travel through the issuance of WLOs and HDOs. 

• In the same way, Section 3 does not authorize the DOJ to issue WLOS and HDOs to restrict the constitutional right to travel. There is even no mention of the exigencies stated in the Constitution that will justify the impairment. The provision simply grants the DOJ the power to investigate the commission of crimes and prosecute offenders, which are basically the functions of the agency. However, it does not carry with it the power to indiscriminately devise all means it deems proper in performing its functions without regard to constitutionally-protected rights. The curtailment of a fundamental right, which is what DOJ Circular No. 41 does, cannot be read into the mentioned provision of the law. Any impairment or restriction in the exercise of a constitutional right must be clear, categorical and unambiguous.

• The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which simply provides for the types of issuances that administrative agencies, in general, may issue. It does not speak of any authority or power but rather a mere clarification on the nature of the issuances that may be issued by a secretary or head of agency. 

• In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the memorandum of the former DOJ Secretary cannot justify the restriction on the right to travel in DOJ Circular No. 41.

• The questioned circular does not come under the inherent power of the executive department to adopt rules and regulations as clearly the issuance of HDO and WLO is not the DOJ’s business. As such, it is a compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the expressed authority to the concerned agency to promulgate rules. On its own, the DOJ cannot make rules, its authority being confined to execution of laws. This is the import of the terms “when expressly provided by law” or “as may be provided by law” stated in Sections 7(4) and 7(9), Chapter 2, Title III, Book IV of E.O. 292 . The DOJ is confined to filling in the gaps and the necessary details in carrying into effect the law as enacted.⁹⁷ Without a clear mandate of an existing law, an administrative issuance is ultra vires.

• Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must derive its life. Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not pass the completeness test and sufficient standard test. The DOJ miserably failed to establish the existence of the enabling law that will justify the issuance of the questioned circular.

• That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the question. The purpose, no matter how commendable, will not obliterate the lack of authority of the DOJ to issue the said issuance. Surely, the DOJ must have the best intentions in promulgating DOJ Circular No. 41, but the end will not justify the means. To sacrifice individual liberties because of a perceived good is disastrous to democracy. 

• The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular No. 41 on the ground that it is necessary to ensure presence and attendance in the preliminary investigation of the complaints. There is also no authority of law granting it the power to compel the attendance of the subjects of a preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. Its investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the imposition of restraint on the liberty of movement.

• That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an administrative issuance to keep the individual within the Philippine jurisdiction so that he may not be able to evade criminal prosecution and consequent liability. It is an arrogation of power it does not have; it is a usurpation of function that properly belongs to the legislature.

• 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. This action runs afoul the separation of powers between the three branches of the government and cannot be upheld. Even the Supreme Court, in the exercise of its power to promulgate rules is limited in that the same shall not diminish, increase, or modify substantive rights.109 This should have cautioned the DOJ, which is only one of the many agencies of the executive branch, to be more scrutinizing in its actions especially when they affect substantive rights, like the right to travel.

• WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby declared NULL and VOID.

d. Implications of posting bail

1) A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. (Manotoc, Jr. v. CA, En Banc, G.R. No. L-62100, May 30, 1986, Per Fernan, J.)

Manotoc, Jr. v. CA, En Banc, G.R. No. L-62100, May 30, 1986, Per Fernan, J.:

• [P]etitioner in this case has not satisfactorily shown any [urgent necessity for traveling abroad]. As aptly observed by the Solicitor General in his comment:

• A perusal of petitioner’s ‘Motion for Permission to Leave the Country’ will show that it is solely predicated on petitioner’s wish to travel to the United States where he will, allegedly attend to some business transactions and search for business opportunities. From the tenor and import of petitioner’s motion, no urgent or compelling reason can be discerned to justify the grant of judicial imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to travel abroad. Petitioner’s motion bears no indication that the alleged business transactions could not be undertaken by any other person in his behalf. Neither is there any hint that petitioner’s absence from the United States would absolutely preclude him from taking advantage of business opportunities therein, nor is there any showing that petitioner’s non-presence in the United States would cause him irreparable damage or prejudice.

• Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The court cannot allow the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance, the government impliedly agrees “that it will not take any proceedings with the principal that will increase the risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result has been reached as to a stipulation or agreement to postpone the trial until after the final disposition of other cases, or to permit the principal to leave the state or country.”Thus, although the order of March 26, 1982 issued by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the criminal cases pending before said judge, We see the rationale behind said order.

• As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial discretion in their having denied petitioner’s motion for permission to leave the country, in much the same way, albeit with contrary results, that We found no reversible error to have been committed by the appellate court in allowing Shepherd to leave the country after it had satisfied itself that she would comply with the conditions of her bail bond.

• The constitutional right to travel being invoked by petitioner is not an absolute right.

Garcia v. Sandiganbayan, G.R. Nos. 205904-06, October 17, 2018, Per A. Reyes, JR., J.:

• The implication of posting of a bond was well-explained in Manotoc v. Court of Appeals, viz.:

A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him.

The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404 (1935).

… the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction.

• Upon posting bail, the accused subjects himself to the jurisdiction of the court and may validly be restricted in his movement and prohibited from leaving this jurisdiction. He cannot leave the country without the permission of the court where his case is pending. Remember that the grant of bail merely secures provisional or temporary liberty under conditions set by the court. The court may recall said grant and return the accused to detention should he violate the conditions for his temporary liberty or when reasons for the lifting of his bail arise. Thus, it is not entirely correct for the petitioner to argue that the issuance of HDOs amounted to an unreasonable restriction on her liberty of movement or right to travel. The truth of the matter is that she was already under restricted right to travel when she submitted to the jurisdiction of the Sandiganbayan by posting bail. The rule is that “a person facing a criminal indictment and provisionally released on bail does not have an unrestricted right to travel, the reason being that a person’s right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice.” The issuance of the HDO is a process complementary to the granting of bail since it puts the Bureau of Immigration on notice that a certain person is charged before the courts of law and must not be allowed to leave our jurisdiction without the permission of the court. After all, the granting of bail does not guaranty compliance by the accused of the conditions for his temporary liberty, particularly, his presence at every stage of the proceedings. Some, if not all, maybe tempted to jump bail and leave the country. This is what the HDO seeks to avoid by keeping the accused within the territory where court processes and dispositions may be enforced and implemented.

• At any rate, it bears pointing out that, notwithstanding the issuance of HDOs, the petitioner is not absolutely prohibited from travelling abroad. She was only restricted from leaving the country as this would place her beyond the jurisdiction of our courts and might render nugatory the processes and proceedings being conducted in the cases against her. Nonetheless, she may, at any time, request for permission to travel abroad, citing grounds for its necessity. The Sandiganbayan, in numerous instances, had been liberal in granting permissions based on meritorious grounds, sometimes even for humanitarian considerations, for as long as certain conditions are complied with. Based on the records and allegations of the parties, however, there has yet an instance when the petitioner asked permission to travel from the Sandiganbayan and was denied of it.