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THE RIGHT TO TRAVEL IS A FUNDAMENTAL RIGHT

(A Transcript of an Interview with Sen. Miriam Defensor-Santiago)

November 16, 2011

Source: http://miriam.com.ph/newsblog/?p=595

The Supreme Court decision to issue a temporary restraining order against the Department of Justices watch -list order against the Arroyos was an exhibition of judicial sagacity and sobriety.

The Constitution provides Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health. Therefore, the right to travel is a constitutionally protected right, or in other words, it is a fundamental right. The right to travel means that if theresany doubt if a citizen can travel or not, the doubt must be resolved in favor of the citizen. That is themeaning of the fact that the right is protected, not in an ordinary bill, but in the constitution itself.

The constitutional provision allows only three exceptions. They are national security, public safety,and public health. The administration has disallowed Rep. Arroyo from going abroad on the groundof national interest. Notice that in the language of the constitution, national interest is not anexception. It is a very serious and grave mistake. To think that national security, public safety, orpublic health can be interchanged with public interest, they are putting words in the mouth of theConstitution. That is why the Supreme Court ruling is correct. And it is also significant that theConstitutional provision provides that there could be three exceptions as may be provided by law,meaning a law passed by Congress. Congress has never passed a law defining for us what is themeaning of national security, public safety, or public health. Therefore, in my view, the SupremeCourt has no choice but to allow Rep. Arroyo to travel. In fact, it should have struck down entirely the entire watch-list practice of the Department of Justice. The Department of Justice has noconstitutional or legal basis legal from the point of view of the Congress as legislature for issuing watch-list hold orders or hold departure orders on its own. It must prove that there is a law thatauthorizes it. It only invokes its own Memorandum Circular No. 41. An agency cannot grant power toitself by issuing a memorandum circular. It is basic for an agency seeking power must be able tosource that power from an enactment of the Congress of the Philippines, duly signed into law by thePresident. The memorandum circular is self- serving, and its not worth the paper it is written on.I am very glad that this is the decision of the Supreme Court not only because I predicted it, but also

because I believe that here we find the Supreme Court impervious to political considerations. Thisissue has been overblown. We have emphasized too much its political aspect. It is a simpleconstitutional issue. Does a person have a right to travel? Answer: Yes, as a general rule. Question: Are there any exceptions where a person can be prevented from travelling? Answer: Yes, in threecases, b ut we dont know what these cases are because Congress has never defined what is nationalsecurity, public safety, and public health. We cannot go by the opinion of somebody no matter how high his position is in government. Only Congress, and even the Supreme Court, can tell us what are

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these three exceptions. Therefore, in default of congressional definition, there should be apresumption that the citizen has a right to travel and the burden of proof is on the Solicitor Generalas representative of the government. This is a good job on the part of the Supreme Court. Icommend the Supreme Court.

Within the constitutional vocabulary, you have to look at the Constitution word per word. TheConstitution says you can prevent a person like Rep. Arroyo from traveling if she poses a threat tonational security not the security of one person, one group, or one party, but the security of theentire nation, or safety of the entire nation, or the health of the entire nation. If that does not involvea nationwide scale, then there can be no exception she has the right to travel.

In the case of, for example, national security: People are saying she will be a risk to national security if we allow her to go, she might go to a country where there is no extradition treaty with thePhilippines, then assuming that she would be tried in absentia and found guilty, then she (Sec. DeLima) will be unable to force her (Rep. Arroyo) to serve out her sentence. That is the reasoning. Thatis so full of holes. In the first place, a country does not need an extradition treaty with the Philippinesto be able to deport a Filipino if it wants to on the grounds that that Filipino is an undesirable alien.It is not true that just because a country has no extradition treaty does not necessarily signify thatRep. Arroyo deliberately chose those countries because she wants to hide there. She can be deported by the country without any request from the country, depending on our relations with that country.

Secondly, she is seeking medical assistance. That falls under the right to health, which is also afundamental right or a constitutionally protected right. In medical ethics, a patient should not beforced to accept any doctor or medication except through his informed consent. So you cannot say We are just going to give her another doctor, She can have another replacement for her neckbraceor some other contraption . That is not allowed in medical ethics.

Rep. Arroyo is said to be attempting to flee the judicial system in our country. Number one: May Iremind you, ladies and gentlemen, you cannot proceed with a trial unless the accused has beenarraigned. So to assume that she will be tried in absentia is to assume nonsense because that personcant have a trial against her unless she has been arraigned first. In addition, her enemies simply presume that she will be found guilty. That is speculation. Finally, notice that the exceptions in theConstitution are national security, public safety, and public health. There is no mention of national justice. Lets say that the all allegations against Rep. Arroyo are correct, and she is able to escape justice. Still, that would be a denial of justice for the Filipino people, but it does not fall under theconstitutional exceptions to the rule. #