VIII.

LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

I. FREEDOM OF MOVEMENT
Man is a peripatetic being. He keeps moving about. He
would likely develop bedsores and other maladies if he simply
stayed in one place. In any case, being able to move about and go
to other places could have an informative and educative benefit,
aside from the mere pleasure of going to places and seeing sights
other than the same old boring commonplace views. And, for the
purpose of going places, even as he cannot run like cheetahs, fly
like birds, or swim like fishes, he might as well approximate the
same by building vehicles by which he can.
And, talking of contemporary events, seen in light of the
ease with which men and women move and fly across boundaries,
the implications of trans-national illnesses might as well be factored
in the calculus. With the swine flu concerns, could one just be
irresponsible in his travels?
Also, just because you have a vehicle by which you can
move about does not necessarily mean that you can use it
anywhere and everywhere. You can not insist on using a tricycle to
traverse the expressways. In this regard, the following lines from
Mirasol v. Department of Public Works and Highways, 490 SCRA 318
(2006), may enlighten. A toll way is not an ordinary road. As a
facility designed to promote the fastest access to certain
destinations, its use, operation, and maintenance require close
regulation. Public interest and safety require the imposition of
certain restrictions on toll ways that do not apply to ordinary roads.
As a special kind of road, it is but reasonable that not all forms of
transport could use it.
And, of course, this particular guarantee was at the center
of the controversy involving the former President, the incumbent
President, the Supreme Court and the impeachment of the Chief
Justice.

1. Rubi vs Provincial Board of Mindoro

G.R. No. L-14078; March 7, 1919; 39 Phil 660
FACTS:
The case is an application for habeas corpus in favor of Rubi and other Manguianes
of the Province of Mindoro. It is alleged that the Maguianes are being illegally
deprived of their liberty by the provincial officials of that province. Rubi and his
companions are said to be held on the reservation established at Tigbao, Mindoro,
against their will, and one Dabalos is said to be held under the custody of the
provincial sheriff in the prison at Calapan for having run away from the reservation.
The provincial governor of Mindoro and the provincial board thereof directed the
Manguianes in question to take up their habitation in Tigbao, a site on the shore of

Lake Naujan, selected by the provincial governor and approved by the provincial
board. The action was taken in accordance with section 2145 of the Administrative
Code of 1917, and was duly approved by the Secretary of the Interior as required by
said action.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christian upon sites selected by provincial
governor. With the prior approval of the Department Head, the provincial governor
of any province in which non-Christian inhabitants are found is authorized, when such
a course is deemed necessary in the interest of law and order, to direct such
inhabitants to take up their habitation on sites on unoccupied public lands to be
selected by him an approved by the provincial board.
Petitioners, however, challenge the validity of this section of the Administrative Code.
The provincial board, by Resolution No. 25, selected a site in the sitio of Tigbao on
Naujan Lake for the permanent settlement of Mangyanes in Mindoro. Pursuant to the
provisions of section 2145 of the revised Administrative Code, all the Mangyans in the
vicinities of the townships of Naujan and Pola and the Mangyans east of the Baco
River including those in the districts of Dulangan and Rubis place in Calapan are
directed to take up their habitation on the site of Tigbao, Naujan Lake.
This is an application for habeas corpus in favor of Rubi and other Manguianes of the
Province of Mindoro. It is alleged that the Mangyanes are being illegally deprived of
their liberty by the provincial officials of that province. Rubi and his companions are
said to be held on the reservation established at Tigbao, Mindoro, against their will,
and one Dabalos is said to be held under the custody of the provincial sheriff in the
prison at Calapan for having run away from the reservation.
ISSUE:
Does section 2145 of the Administrative Code of 1917 constitute an unlawful
delegation of legislative power by the Philippine Legislature to a provincial official and
a department head, therefore making it unconstitutional?
HELD:
No. The Philippine Legislature has here conferred authority upon the Province of
Mindoro, to be exercised by the provincial governor and the provincial board.
In determining whether the delegation of legislative power is valid or not, the
distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion as
to its execution, to be exercised under and in pursuance of the law. The first cannot
be done; to the later no valid objection can be made. Discretion may be committed by
the Legislature to an executive department or official. The Legislature may make
decisions of executive departments of subordinate official thereof, to whom it has
committed the execution of certain acts, final on questions of fact. The growing
tendency in the decision is to give prominence to the "necessity" of the case.
In enacting the said provision of the Administrative Code, the Legislature merely
conferred upon the provincial governor, with the approval of the provincial board and
the Department Head, discretionary authority as to the execution of the law. This is

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

necessary since the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge when such as course is
deemed necessary in the interest of law and order. As officials charged with the
administration of the province and the protection of its inhabitants, they are better
fitted to select sites which have the conditions most favorable for improving the
people who have the misfortune of being in a backward state.
Hence, Section 2145 of the Administrative Code of 1917 is not an unlawful delegation
of legislative power by the Philippine Legislature to provincial official and a
department head.
No. Section 2145 of the Administrative Code does not deprive a person of his liberty
without due process of law and does not deny to him the equal protection of the laws,
and that confinement in reservations in accordance with said section does not
constitute slavery and involuntary servitude. The court further ruled that section 2145
of the Administrative Code is a legitimate exertion of the police power and thus
constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus
can, therefore, not issue.
One cannot hold that the liberty of the citizen is unduly interfered with when the
degree of civilization of the. Manguianes is considered. They are restrained for their
own good and the general good of the Philippines. Nor can one say that due process
of law has not been followed. To go back to our definition of due process of law and
equal protection of the laws, there exists a law; the law seems to be reasonable; it is
enforced according to the regular methods of procedure prescribed; and it applies
alike to all of a class.
The public policy of the Government of the Philippine Islands is shaped with a view to
benefit the Filipino people as a whole. The Manguianes, in order to fulfill this
governmental policy, must be confined for a time, as we have said, for their own good
and the good of the country.

2. EDWARDS v. PEOPLE OF STATE OF

CALIFORNIA, (1941)
Facts of the case
At the height of the Great Depression, anyone who knowingly assisted a pauper in
entering the state of California was guilty of a misdemeanor. A Californian named
Edwards drove to Texas and then returned to California with his indigent brother-inlaw. Edwards was found guilty of violating the state's "Okie law;" he was given a sixmonth suspended jail sentence.
Question

Does the Calfornia law violate the Constitution's Commerce Clause?

Conclusion
Yes, the Commerce Clause forbids a state to exclude indigents. California's interest in
the health of its citizens and the sufficiency of its welfare funds do not justify the
burden on interstate commerce occasioned by the law. Byrnes's unanimous opinion
observed that "the indigent non-residents who are the real victims of this statute are
deprived of the opportunity to exert political pressure upon the California legislature in
order to obtain a change in policy." (See Mayor of New York v. Miln.)

The facts of this case are simple and are not disputed. Appellant is a citizen
of the United States and a resident of California. In December, 1939, he left his home
in Marysville, California, for Spur, Texas, with the intention of bringing back to
Marysville, his wife's brother, Frank Duncan, a citizen of the United States and a
resident of Texas. [314 U.S. 160, 171] When he arrived in Texas, appellant learned
that Duncan had last been employed by the Works Progress Administration. Appellant
thus became aware of the fact that Duncan was an indigent person and he continued
to be aware of it throughout the period involved in this case. The two men agreed that
appellant should transport Duncan from Texas to Marysville in appellant's automobile.
Accordingly, they left Spur on January 1, 1940, entered California by way of Arizona
on January 3, and reached Marysville on January 5. When he left Texas, Duncan had
about $20. It had all been spent by the time he reached Marysville. He lived with
appellant for about ten days until he obtained financial assistance from the Farm
Security Administration. During the ten day interval, he had no employment.
In Justice Court a complaint was filed against appellant under Section 2615 of the
Welfare and Institutions Code of California, St.1937, p. 1406, which provides: 'Every
person, firm or corporation, or officer or agent thereof that brings or assists in bringing
into the State any indigent person who is not a resident of the State, knowing him to
be an indigent person, is guilty of a misdemeanor.' On demurrer to the complaint,
appellant urged that the Section violated several provisions of the Federal
Constitution. The demurrer was overruled, the cause was tried, appellant was
convicted and sentenced to six months imprisonment in the county jail, and sentence
was suspended.
On appeal to the Superior Court of Yuba County, the facts as stated above
were stipulated. The Superior Court, although regarding as 'close' the question of the
validity of the Section, felt 'constrained to uphold the statute as a valid exercise of the
police power of the State of California'. Consequently, the conviction was affirmed. No
appeal to a higher state court was open to appellant. We noted probable jurisdiction
early last [314 U.S. 160, 172] term, and later ordered reargument ( 313 U.S. 545 , 61
S.Ct. 956) which has been held.
At the threshold of our inquiry a question arises with respect to the
interpretation of Section 2615. On reargument, the Attorney General of California has
submitted an exposition of the history of the Section, which reveals that statutes
similar, though not identical to it have been in effect in California since 1860, see
Cal.Stat. 1860, p. 213; Cal.Stat. 1901, p. 636; Cal.Stat.1933, p. 2005. Neither under

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

these forerunners nor under Section 2615 itself does the term 'indigent person' seem
to have been accorded an authoritative interpretation by the California courts. The
appellee claims for the Section a very limited scope. It urges that the term 'indigent
person' must be taken to include only persons who are presently destitute of property
and without resources to obtain the necessities of life, and who have no relatives or
friends able and willing to support them. It is conceded, however, that the term is not
confined to those who are physically or mentally incapacitated. While the generality of
the language of the Section contains no hint of these limitations, we are content to
assign to the term this narrow meaning.
Article I, Section 8 of the Constitution delegates to the Congress the
authority to regulate interstate commerce. And it is settled beyond question that the
transportation of persons is 'commerce', within the meaning of that provision. 1 It is
nevertheless true that the States are not wholly precluded from exercising their police
power in matters of local concern even though they may thereby affect inter- [314
U.S. 160, 173] state commerce. California v. Thompson, 313 U.S. 109, 113 , 61
S.Ct. 930, 932. The issue presented in this case, therefore, is whether the prohibition
embodied in Section 2615 against the 'bringing' or transportation of indigent persons
into California is within the police power of that State. We think that it is not, and hold
that it is an unconstitutional barrier to interstate commerce.
The grave and perplexing social and economic dislocation which this statute
reflects is a matter of common knowledge and concern. We are not unmindful of it.
We appreciate that the spectacle of large segments of our population constantly on
the move has given rise to urgent demands upon the ingenuity of government. Both
the brief of the Attorney General of California and that of the Chairman of the Select
Committee of the House of Representatives of the United States as amicus curiae
have sharpened this appreciation. The State asserts that the huge influx of migrants
into California in recent years has resulted in problems of health, morals, and
especially finance, the proportions of which are staggering. It is not for us to say that
this is not true. We have repeatedly and recently affirmed, and we now reaffirm, that
we do not conceive it our function to pass upon 'the wisdom, need, or
appropriateness' of the legislative efforts of the States to solve such difficulties. See
Olsen v. Nebraska, 313 U.S. 236, 246 , 61 S.Ct. 862, 865, 133 A.L.R. 1500
But this does not mean that there are no boundaries to the permissible area
of State legislative activity. There are. And none is more certain than the prohibition
against attempts on the part of any single State to isolate itself from difficulties
common to all of them by restraining the transportation of persons and property
across its borders. It is frequently the case that a State might gain a momentary
respite from the pressure of events by the simple expedient of shutting its gates to the
outside world. But, in the words of Mr. Justice Cardozo: 'The Constitution was [314
U.S. 160, 174] framed under the dominion of a political philosophy less parochial in
range. It was framed upon the theory that the peoples of the several states must sink
or swim together, and that in the long run prosperity and salvation are in union and
not division.' Baldwin v. Seelig, 294 U.S. 511, 523 , 55 S.Ct. 497, 500, 101 A.L.R. 55.
It is difficult to conceive of a statute more squarely in conflict with this theory
than the Section challenged here. Its express purpose and inevitable effect is to
prohibit the transportation of indigent persons across the California border. The

burden upon interstate commerce is intended and immediate; it is the plain and sole
function of the statute. Moreover, the indigent non-residents who are the real victims
of the statute are deprived of the opportunity to exert political pressure upon the
California legislature in order to obtain a change in policy. South Carolina Highway
Department v. Barnwell Bros., 303 U.S. 177 , 185, note 2, 58 S.Ct. 510, 513. We think
this statute must fail under any known test of the validity of State interference with
interstate commerce.
It is urged, however, that the concept which underlies Section 2615 enjoys a
firm basis in English and American history. 2 This is the notion that each community
should care for its own indigent, that relief is solely the responsibility of local
government. Of this it must first be said that we are not now called upon to determine
anything other than the propriety of an attempt by a State to prohibit the
transportation of indigent non-residents into its territory. The nature and extent of its
obligation to afford relief to newcomers is not here involved. We do, however, suggest
that the theory of the Elizabethan poor laws no longer fits the facts. Recent years, and
particularly the past decade, have been marked by a growing recognition that in an
industrial society the task of pro- [314 U.S. 160, 175] viding assistance to the needy
has ceased to be local in character. The duty to share the burden, if not wholly to
assume it, has been recognized not only by State governments, but by the Federal
government as well. The changed attitude is reflected in the Social Security laws
under which the Federal and State governments cooperate for the care of the aged,
the blind and dependent children. U.S.C., Title 42, 301-1307, 42 U.S.C.A. 301-1307,
esp. 301, 501, 601, 701, 721, 801, 1201. It is reflected in the works programs under
which work is furnished the unemployed, with the States supplying approximately
25% and the Federal government approximately 75% of the cost. See, e.g., Joint
Resolution of June 26, 1940, c. 432, 1(d), 76th Cong., 3rd Sess., 54 Stat. 611, 613,
15 U.S.C.A . 721-728. It is further reflected in the Farm Security laws, under which the
entire cost of the relief provisions is borne by the Federal government. Id., at 2(a),
2(b), 2(d).
Indeed the record in this very case illustrates the inadequate basis in fact for
the theory that relief is presently a local matter. Before leaving Texas, Duncan had
received assistance from the Works Progress Administration. After arriving in
California he was aided by the Farm Security Administration, which, as we have said,
is wholly financed by the Federal government. This is not to say that our judgment
would be different if Duncan had received relief from local agencies in Texas and
California. Nor is it to suggest that the financial burden of assistance to indigent
persons does not continue to fall heavily upon local and State governments. It is only
to illustrate that in not inconsiderable measure the relief of the needy has become the
common responsibility and concern of the whole nation.
What has been said with respect to financing relief is not without its bearing
upon the regulation of the transportation of indigent persons. For the social
phenomenon of large-scale interstate migration is as certainly a matter of national
concern as the provision of assistance to those who have found a permanent or
temporary abode. [314 U.S. 160, 176] Moreover, and unlike the relief problem, this
phenomenon does not admit of diverse treatment by the several States. The
prohibition against transporting indigent non-residents into one State is an open
invitation to retaliatory measures, and the burdens upon the transportation of such

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

persons become cumulative. Moreover, it would be a virtual impossibility for migrants
and those who transport them to acquaint themselves with the peculiar rules of
admission of many states. 'This court has repeatedly declared that the grant (the
commerce clause) established the immunity of interstate commerce from the control
of the states respecting all those subjects embraced within the grant which are of
such a nature as to demand that, if regulated at all, their regulation must be
prescribed by a single authority.' Milk Control Board v. Eisenberg Farm Products, 306
U.S. 346, 351 , 59 S.Ct. 528, 530. We are of the opinion that the transportation of
indigent persons from State to State clearly falls within this class of subjects. The
scope of Congressional power to deal with this problem we are not now called upon
to decide.
There remains to be noticed only the contention that the limitation upon
State power to interfere with the interstate transportation of persons is subject to an
exception in the case of 'paupers'. It is true that support for this contention may be
found in early decisions of this Court. In City of New York v. Miln, 11 Pet. 102, 103, at
page 143, it was said that it is 'as competent and as necessary for a state to provide
precautionary measures against the moral pestilence of paupers, vagabonds, and
possibly convicts; as it is to guard against the physical pestilence, which may arise
from unsound and infectious articles imported ....' This language has been casually
repeated in numerous later cases up to the turn of the century. See, e.g., Passenger
Cases, 7 How. 283, 426 and 466, 467; Hannibal & St. J. Railway Company v.
Husen, 95 U.S. 465 , 471; Plumley v. Massachusetts, 155 U.S. 461, 478 , 15 S.Ct.
154, 160; Missouri, Kansas & Topeka Ry. [314 U.S. 160, 177] v. Haber, 169 U.S.
613, 629 , 18 S.Ct. 488, 494. In none of these cases, however, was the power of a
State to exclude 'paupers' actually involved.
Whether an able-bodied but unemployed person like Duncan is a 'pauper'
within the historical meaning of the term is open to considerable doubt. See 53
Harvard L.Rev. 1031, 1032. But assuming that the term is applicable to him and to
persons similarly situated, we do not consider ourselves bound by the language
referred to. City of New York v. Miln was decided in 1836. Whatever may have been
the notion then prevailing, we do not think that it will now be seriously contended that
because a person is without employment and without funds he constitutes a 'moral
pestilence'. Poverty and immorality are not synonymous.
We are of the opinion that Section 2615 is not a valid exercise of the police
power of California, that it imposes an unconstitutional burden upon interstate
commerce, and that the conviction under it cannot be sustained. In the view we have
taken it is unnecessary to decide whether the Section is repugnant to other provisions
of the Constitution.
REVERSED.
Mr. Justice DOUGLAS, concurring.
I express no view on whether or not the statute here in question runs afoul of
Art. I, Sec. 8 of the Constitution granting to Congress the power 'to regulate
Commerce with foreign Nations, and among the several States.' But I am of the
opinion that the right of persons to move freely from State to State occupies a more
protected position in our constitutional system than does the movement of cattle, fruit,
steel and coal across state lines. While the opinion of the Court expresses no view on

that issue, the right involved is so fundamental that I deem it appropriate to indicate
the reach of the constitutional question which is present. [314 U.S. 160, 178] The
right to move freely from State to State is an incident of national citizenship protected
by the privileges and immunities clause of the Fourteenth Amendment against state
interference. Mr. Justice Moody in Twining v. State of New Jersey, 211 U.S. 78, 97 ,
29 S.Ct. 14, 18, stated, 'Privileges and immunities of citizens of the United States ...
are only such as arise out of the nature and essential character of the national
government, or are specifically granted or secured to all citizens or persons by the
Constitution of the United States.' And he went on to state that one of those rights of
national citizenship was 'the right to pass freely from state to state'. Id., 211 U.S. page
97, 29 S.Ct. pages 18, 19. Now it is apparent that this right is not specifically granted
by the Constitution. Yet before the Fourteenth Amendment it was recognized as a
right fundamental to the national character of our Federal government. It was so
decided in 1867 by Crandall v. Nevada, 6 Wall. 35, 39. In that case this Court struck
down a Nevada tax 'upon every person leaving the State' by common carrier. Mr.
Justice Miller writing for the Court held that the right to move freely throughout the
nation was a right of national citizenship. That the right was implied did not make it
any the less 'guaranteed' by the Constitution. Id., 6 Wall. page 47. To be sure, he
emphasized that the Nevada statute would obstruct the right of a citizen to travel to
the seat of his national government or its offices throughout the country. And see
United States v. Wheeler, 254 U.S. 281, 299 , 41 S.Ct. 133, 136. But there is not a
shred of evidence in the record of the Crandall case that the persons there involved
were en route on any such mission any more than it appears in this case that Duncan
entered California to interview some federal agency. The point which Mr. Justice Miller
made was merely in illustration of the damage and havoc which would ensue if the
States had the power to prevent the free movement of citizens from one State to
another. [314 U.S. 160, 179] This is emphasized by his quotation from Chief Justice
Taney's dissenting opinion in the Passenger Cases, 7 How. 283, 492: 'We are all
citizens of the United States, and as members of the same community must have the
right to pass and repass through every part of it without interruption, as freely as in
our own States.' Hence the dictum in United States v. Wheeler, supra, 254 U.S. page
299, 41 S.Ct. page 136, which attempts to limit the Crandall case to a holding that the
statute in question directly burdened 'the performance by the United States of its
governmental functions' and limited the 'rights of the citizens growing out of such
functions,' does not bear analysis.
So, when the Fourteenth Amendment was adopted in 1868 it had been
squarely and authoritatively settled that the right to move freely from State to State
was a right of national citizenship. As such it was protected by the privileges and
immunities clause of the Fourteenth Amendment against state interference.
Slaughter-House Cases, 16 Wall. 36, 74, 79. In the latter case Mr. Justice Miller
recognized that it was so 'protected by implied guarantees' of the Constitution. Id., 16
Wall. page 79. That was also acknowledged in Twining v. State of New Jersey, supra.
And Chief Justice Fuller in Williams v. Fears, 179 U.S. 270, 274 , 21 S.Ct. 128, 129,
stated: 'Undoubtedly the right of locomotion, the right to remove from one place to
another according to inclination, is an attribute of personal liberty, and the right,
ordinarily, of free transit from or through the territory of any state is a right secured by
the 14th Amendment and by other provisions of the Constitution.'
In the face of this history I cannot accede to the suggestion (Helson v. Com. of
Kentucky, 279 U.S. 245, 251 , 49 S.Ct. 279, 281; Colgate v. Harvey, 296 U.S. 404,

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

444 , 56 S.Ct. 252, 265, 102 A.L.R. 54) that the commerce clause is the appropriate
explanation of Crandall v. Nevada, supra. Two of the Justices in that case
expressly [314 U.S. 160, 180] put the decision on the commerce clause; the others
put it on the broader ground of rights of national citizenship, Mr. Justice Miller stating
that 'we do not concede that the question before us is to be determined' by the
commerce clause. Id., 6 Wall. page 43. On that broader ground it should continue to
rest.
To be sure, there are expressions in the cases that this right of free
movement of persons is an incident of state citizenship protected against
discriminatory state action by Art. IV, Sec. 2 of the Constitution. Corfield v. Coryell,
Fed.Cas.No.3,230, 4 Wash. C.C. 371, 381; Paul v. Virginia, 8 Wall, 168, 180; Ward v.
Maryland, 12 Wall. 418, 430; United States v. Wheeler, supra, 254 U.S. pages 298,
299, 41 S.Ct. pages 135, 136. Under the dicta of those cases the statute in the instant
case would not survive, since California is curtailing only the free movement of
indigents who are non-residents of that State. But the thrust of the Crandall case is
deeper. Mr. Justice Miller adverted to Corfield v. Coryell, Paul v. Virginia, and Ward v.
Maryland, when he stated in the Slaughter-House Cases that the right protected by
the Crandall case was a right of national citizenship arising from the 'implied
guarantees' of the Constitution. 16 Wall. at pages 75-79. But his failure to classify that
right as one of state citizenship protected solely by Art. IV, sec. 2, underscores his
view that the free movement of persons throughout this nation was a right of national
citizenship. It likewise emphasizes that Art. IV, Sec. 2, whatever its reach, is primarily
concerned with the incidents of residence ( the matter involved in United States v.
Wheeler, supra) and the exercise of rights within a State, so that a citizen of one State
is not in a 'condition of alienage when he is within or when he removes to another
state.' Blake v. McClung, 172 U.S. 239, 256 , 19 S.Ct. 165, 172. Furthermore, Art. IV,
Sec. 2, cannot explain the Crandall decision. The statute in that case applied to
citizens of Nevada as well as to citizens of [314 U.S. 160, 181] other States. That is
to say Nevada was not 'discriminating against citizens of other states in favor of its
own.' Hague v. Committee for Industrial Organization, 307 U.S. 496, 511 , 59 S.Ct.
954, 962, and cases cited. Thus it is plain that the right of free ingress and egress
rises to a higher constitutional dignity than that afforded by state citizenship.
The conclusion that the right of free movement is a right of national
citizenship stands on firm historical ground. If a state tax on that movement, as in the
Crandall case, is invalid, a fortiori a state statute which obstructs or in substance
prevents that movement must fall. That result necessarily follows unless perchance a
State can curtail the right of free movement of those who are poor or destitute. But to
allow such an exception to be engrafted on the rights of national citizenship would be
to contravene every conception of national unity. It would also introduce a caste
system utterly incompatible with the spirit of our system of government. It would
permit those who were stigmatized by a State as indigents, paupers, or vagabonds to
be relegated to an inferior class of citizenship. It would prevent a citizen because he
was poor from seeking new horizons in other States. It might thus withhold from large
segments of our people that mobility which is basic to any guarantee of freedom of
opportunity. The result would be a substantial dilution of the rights of national
citizenship, a serious impairment of the principles of equality. Since the state statute
here challenged involves such consequences, it runs afoul of the privileges and
immunities clause of the Fourteenth Amendment.

Mr. Justice BLACK and Mr. Justice MURPHY join in this opinion.
Mr. Justice JACKSON, concurring.
I concur in the result reached by the Court, and I agree that the grounds of
its decision are permissible ones under [314 U.S. 160, 182] applicable authorities.
But the migrations of a human being, of whom it is charged that he possesses nothing
that can be sold and has no wherewithal to buy, do not fit easily into my notions as to
what is commerce. To hold that the measure of his rights is the commerce clause is
likely to result eventually either in distorting the commercial law or in denaturing
human rights. I turn, therefore, away from principles by which commerce is regulated
to that clause of the Constitution by virtue of which Duncan is a citizen of the United
States and which forbids any state to abridge his privileges or immunities as such.
This clause was adopted to make United States citizenship the dominant and
paramount allegiance among us. The return which the law had long associated with
allegiance was protection. The power of citizenship as a shield against oppression
was widely known from the example of Paul's Roman citizenship, which sent the
centurion scurrying to his higher-ups with the message: 'Take heed what thou doest:
for this man is a Roman.' I suppose none of us doubts that the hope of imparting to
American citizenship some of this vitality was the purpose of declaring in the
Fourteenth Amendment: 'All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States ....'
But the hope proclaimed in such generality soon shriveled in the process of
judicial interpretation. For nearly three-quarters of a century this Court rejected every
plea to the privileges and immunities clause. The judicial history of this clause and the
very real difficulties in the way of its practical application to specific cases have been
too well and recently reviewed to warrant repetition. 1 [314 U.S. 160, 183] While
instances of valid 'privileges or immunities' must be but few, I am convinced that this
is one. I do not ignore or belittle the difficulties of what has been characterized by this
Court as an 'almost forgotten' clause. But the difficulty of the task does not excuse us
from giving these general and abstract words whatever of specific content and
concreteness they will bear as we mark out their application, case by case. That is the
method of the common law, and it has been the method of this Court with other no
less general statements in our fundamental law. This Court has not been timorous
about giving concrete meaning to such obscure and vagrant phrases as 'due
process,' 'general welfare,' 'equal protection,' or even 'commerce among the several
States.' But it has always hesitated to give any real meaning to the privileges and
immunities clause lest it improvidently give too much.
This Court should, however, hold squarely that it is a privilege of citizenship
of the United States, protected from state abridgment, to enter any state of the Union,
either for temporary sojourn or for the establishment of permanent residence therein
and for gaining resultant citizenship thereof. If national citizenship means less than
this, it means nothing.
The language of the Fourteenth Amendment declaring two kinds of
citizenship is discriminating. It is: 'All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States and of the

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

State wherein they reside.' While it thus establishes national citizenship from the mere
circumstance of birth within the territory and jurisdiction of the United States, birth
within a state does not establish citizenship thereof. State citizenship is ephemeral. It
results only from residence and is gained or lost therewith. That choice of residence
was subject to local approval is contrary to the inescapable implications of the
westward movement of our civilization. [314 U.S. 160, 184] Even as to an alien who
had 'been admitted to the United States under the Federal law,' this Court, through
Mr. Justice Hughes, declared that 'He was thus admitted with the privilege of entering
and abiding in the United States, and hence of entering and abiding in any state in the
Union.' Truax v. Raich, 239 U.S. 33, 39 , 36 S.Ct. 7, 9, L.R.A.1916D, 545,
Ann.Cas.1917B, 283. Why we should hesitate to hold that federal citizenship implies
rights to enter and abide in any state of the Union at least equal to those possessed
by aliens passes my understanding. The world is even more upside down than I had
supposed it to be, if California must accept aliens in deference to their federal
privileges but is free to turn back citizens of the United States unless we treat them as
subjects of commerce.
The right of the citizen to migrate from state to state which, I agree with Mr.
Justice DOUGLAS, is shown by our precedents to be one of national citizenship, is
not, however, an unlimited one. In addition to being subject to all constitutional
limitations imposed by the federal government, such citizen is subject to some control
by state governments. He may not, if a fugitive from justice, claim freedom to migrate
unmolested, nor may he endanger others by carrying contagion about. These causes,
and perhaps others that do not occur to me now, warrant any public authority in
stopping a man where it finds him and arresting his progress across a state line quite
as much as from place to place within the state.

If I doubted whether his federal citizenship alone were enough to open the
gates of California to Duncan, my doubt would disappear on consideration of the
obligations of such citizenship. Duncan owes a duty to render military service, and
this Court has said that this duty is the result of his citizenship. Mr. Chief Justice White
declared in the Selective Draft Law Cases, 245 U.S. 366, 378 , 38 S.Ct. 159, 161,
L.R.A.1918C, 361, Ann.Cas.1918B, 856: 'It may not be doubted that the very
conception of a just government and its duty to the citizen includes the reciprocal
obligation of the citizen to render military service in case of need and the right to
compel it.' A contention that a citizen's duty to render military service is suspended by
'indigence' would meet with little favor. Rich or penniless, Duncan's citizenship under
the Con- [314 U.S. 160, 186] stitution pledges his strength to the defense of
California as a part of the United States, and his right to migrate to any part of the
land he must defend is something she must respect under the same instrument.
Unless this Court is willing to say that citizenship of the United States means at least
this much to the citizen, then our heritage of constitutional privileges and immunities
is only a promise to the ear to be broken to the hope, a teasing illusion like a
munificent bequest in a pauper's will.

3. Zemel v. Rusk
May 3, 1965; 381 US 1
FACTS:

It is here that we meet the real crux of this case. Does 'indigence' as defined
by the application of the California statute constitute a basis for restricting the
freedom of a citizen, as crime or contagion warrants its restriction' We should say
now, and in no uncertain terms, that a man's mere property status, without more,
cannot be used by a state to test, qualify, or limit his rights as a citizen of the United
States. 'Indigence' in itself is neither a source of rights nor a basis for denying them.
The mere [314 U.S. 160, 185] state of being without funds is a neutral factconstitutionally an irrelevance, like race, creed, or color. I agree with what I
understand to be the holding of the Court that cases which may indicate the contrary
are overruled.

Prior to 1961, no passport was required for travel anywhere in the Western
Hemisphere. On January 3, 1961, the United States broke diplomatic and
consular relations with Cuba. The US Department of State eliminated Cuba
from the area for which passports were not required, and declared all
outstanding United States passports to be invalid for travel to or in Cuba
"unless specifically endorsed for such travel under the authority of the
Secretary of State." A press release stated that the Department of State
contemplated granting exceptions to "persons whose travel may be regarded
as being in the best interests of the United States, such as newsmen or
businessmen with previously established business interests," and specified
that tourist travel was excluded.

Any measure which would divide our citizenry on the basis of property into
one class free to move from state to state and another class that is poverty-bound to
the place where it has suffered misfortune is not only at war with the habit and custom
by which our country has expanded, but is also a short-sighted blow at the security of
property itself. Property can have no more dangerous, even if unwitting, enemy than
one who would make its possession a pretext for unequal or exclusive civil rights.
Where those rights are derived from national citizenship no state may impose such a
test, and whether the Congress could do so we are not called upon to inquire.
I think California had no right to make the condition of Duncan's purse, with no
evidence of violation by him of any law or social policy which caused it, the basis of
excluding him or of punishing one who extended him aid.

Appellant, a United States citizen who held an otherwise valid passport,

applied to the State Department to have his passport validated for travel to
Cuba as a tourist. His request was denied. He renewed the request, stating
that the purpose of the proposed trip was "to satisfy my curiosity about the
state of affairs in Cuba and to make me a better informed citizen." The
request again was denied, on the ground that the purpose of the trip did not
meet the previously prescribed standards for such travel.
Appellant filed suit against the Secretary of State and the Attorney General in
the United States District Court for the District of Connecticut. He argued

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

that it was unconstitutional for the Secretary of State and Attorney General to
impose restrictions on a citizen's location of travel, and that his passport
should be validated for the purpose of traveling to Cuba.
A three-judge court granted the Secretary of State's motion for summary
judgment and dismissed the action against the Attorney General. Appellant
directly appealed to the US Supreme Court.
Prior to 1961, passports were not required for travel anywhere in the Western
Hemisphere. After the United States broke diplomatic and consular relations with
Cuba, the Department of State eliminated Cuba from the area for which passports
were not required, and declared all outstanding United States passports (except
those held by persons already in Cuba) to be invalid for travel to or in Cuba unless
specifically endorsed for such travel under the authority of the Secretary of State.
Zemel, a citizen of the United States and holder of an otherwise valid passport,
applied to the State Department to have his passport validated for travel to Cuba as a
tourist. He stated that the purpose of the proposed trip was to satisfy my curiosity
about the state of affairs in Cuba and to make me a better informed citizen. The
request was denied, on the ground that the purpose of the trip did not meet the
previously prescribed standards for such travel.
On December 7, 1962, appellant filed suit against the Secretary of State and the
Attorney General. He argued that he was entitled under the Constitution and laws of
the United States to travel to Cuba and to have his passport validated for that
purpose and that the Secretarys restrictions upon travel to Cuba were invalid. A
three-judge court granted the Secretary of States motion for summary judgment and
dismissed the suit. Zemel appealed to the U.S. Supreme Court.

ISSUES:
Is the Secretary of State's refusal to validate the passports of United States
citizens for travel to Cuba unconstitutional?
ARGUMENTS OF PETITIONER:
"VALIDATION OF PASSPORTS
Article I of the Constitution provides that 'All legislative Powers herein
granted shall be vested in a Congress of the United States which shall
consist of a Senate and House of Representatives.'... This provision grants
Congress ample power to enact legislation regulating the issuance and use
of passports for travel abroad unless the particular legislation is forbidden by
some specific constitutional prohibition... Since Article I, however, vests 'All
legislative Powers' in the Congress, and no language in the Constitution
purports to vest any such power in the President, it necessarily follows, if the
Constitution is to control, that the President is completely devoid of power to

make laws regulating passports or anything else. And he has no more power
to make laws by labeling them regulations than to do so by calling them
laws... I cannot accept the Government's argument that the President has
'inherent' power to make regulations governing the issuance and use of
passports...
This statute was designed solely to centralize authority to issue passports in
the hands of the Secretary of State in order to overcome the abuses and
chaos caused by the fact that, prior to the passage of the statute, numerous
unauthorized persons issued passports and travel documents... The authority
to make rules granted by the statute to the Executive extends only to the
promulgation of rules designed to carry out this statutory purpose...
RESTRICTION
ON
TRAVEL
The travel ban is a direct interference with the First Amendment rights of
citizens to travel abroad so that they might acquaint themselves at first hand
with the effects abroad of our Government's policies, foreign and domestic,
and with conditions abroad which might affect such policies...
Regulation of passports... is a law-making -- not an executive, law-enforcing
-- function... This is delegation running riot. No such plenitude of power is
susceptible of transfer...
The right to travel overseas, as well as at home, was part of the citizen's
liberty... That conclusion was not an esoteric one drawn from the blue. It
reflected a judgment as to the peripheral rights of the citizen under the First
Amendment. The right to know, to converse with others, to consult with them,
to observe social, physical, political and other phenomena abroad, as well as
at home, gives meaning and substance to freedom of expression and
freedom of the press. Without those contacts, First Amendment rights
suffer.... Since we deal with rights peripheral to the enjoyment of First
Amendment guarantees, restrictive legislation must be 'narrowly drawn' to
meet a precise evil.
The First Amendment presupposes a mature people, not afraid of ideas. The
First Amendment leaves no room for the official, whether truculent or benign,
to say nay or yea because the ideas offend or please him or because he
believes some political objective is served by keeping the citizen at home or
letting him go...
A governmental purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means which sweep
unnecessarily broadly, and thereby invade the area of protected freedoms.

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

The breadth of legislative abridgment must be viewed in the light of less
drastic means for achieving the same basic purpose.
I do not believe that the Executive has inherent authority to impose area
restrictions in time of peace... The administrative practice of the State
Department prior to 1926 does not support the Court's view that, when
Congress reenacted the 1856 provision in 1926, it intended to grant the
Executive authority to impose area restrictions." -ACLU brief in Zemel v.
Rusk
HELD:
"The Passport Act of 1926 grants authority to the Executive to refuse validation of
passports for Cuban travel... The consistent interpretation by the Department of State
of its authority to impose area restrictions, both before and after the 1926 enactment,
must be given weight by the courts in construing the statute... In 1952, Congress
enacted legislation relating to passports, but, despite the many executive impositions
of area restrictions, it left untouched the broad rulemaking authority granted in the
Passport Act of 1926... This case, where the Secretary's refusal is based on foreign
policy considerations affecting all citizens, is distinguished from Kent v. Dulles, where
the passport denial was based on the applicant's political beliefs or associations.
The restriction on travel to Cuba does not abridge appellant's constitutional rights...
The fact that a liberty cannot be inhibited without due process of law does not mean
that it can under no circumstances be inhibited... The restriction here is justified by the
weightiest considerations of national security... The failure to validate appellant's
passport results in an inhibition of action, and not a restriction of a First Amendment
right. The right to speak and publish does not carry with it an unrestrained right to
gather information... The Passport Act of 1926 contains sufficiently definite standards
for action, especially since the area is that of foreign affairs, where the Executive has
broad authority... The Passport Act of 1926 does not grant the Executive completely
unrestricted freedom of action, as it authorizes only those passport restrictions which
it could fairly be argued were adopted by Congress in light of prior administrative
practice...
Adjudication of the reach and constitutionality of Section 215(b) of the Immigration
and Nationality Act of 1952 as applied to travel in violation of an area restriction must
await a concrete factual situation."
Held: The judgment of the District Court is affirmed.

4. Marcos, petitioner VS.

Manglapus, respondent (Part 1)
G.R. No. 88211, September 15, 1989

Facts:
Former President Ferdinand E. Marcos was deposed from the presidency via the
non-violent people power revolution and was forced into exile. Marcos, in his
deathbed, has signified his wish to return to the Philippines to die. But President
Corazon Aquino, considering the dire consequences to the nation of his return at a
time when the stability of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood firmly on the decision
to bar the return of Marcos and his family.
Aquino barred Marcos from returning due to possible threats & following supervening
events:
1.

failed Manila Hotel coup in 1986 led by Marcos leaders

2.

channel 7 taken over by rebels & loyalists

3.

plan of Marcoses to return w/ mercenaries aboard a chartered plane of a

Lebanese arms dealer. This is to prove that they can stir trouble from afar

4.

Honasans failed coup

5.

Communist insurgency movements

6.

secessionist movements in Mindanao

7.

devastated economy because of

1.

accumulated foreign debt

2.

plunder of nation by Marcos & cronies

Marcos filed for a petition of mandamus and prohibition to order the respondents to
issue them their travel documents and prevent the implementation of President
Aquinos decision to bar Marcos from returning in the Philippines. Petitioner questions
Aquinos power to bar his return in the country. He also questioned the claim of the
President that the decision was made in the interest of national security, public safety
and health. Petitioner also claimed that the President acted outside her jurisdiction.
According to the Marcoses, such act deprives them of their right to life, liberty,
property without due process and equal protection of the laws. They also said that it
deprives them of their right to travel which according to Section 6, Article 3 of the
constitution, may only be impaired by a court order.

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

Issue:
1.

Whether or not, in the exercise of the powers granted by the Constitution,

the President may prohibit the Marcoses from returning to the Philippines.

2.

Whether or not the President acted arbitrarily or with grave abuse of

discretion amounting to lack or excess of jurisdiction when she determined
that the return of the Marcoses to the Philippines poses a serious threat to
national interest and welfare and decided to bar their return.

For issue number 2, the question for the court to determine is whether or not there
exist factual basis for the President to conclude that it was in the national interest to
bar the return of the Marcoses in the Philippines. It is proven that there are factual
bases in her decision. The supervening events that happened before her decision are
factual. The President must take preemptive measures for the self-preservation of the
country & protection of the people. She has to uphold the Constitution.
Fernan, Concurring
1.

The presidents power is not fixed. Limits would depend on the imperatives
of events and not on abstract theories of law. We are undergoing a critical
time and the current problem can only be answerable by the President.

2.

Threat is real. Return of the Marcoses would pose a clear & present danger.
Thus, its the executives responsibility & obligation to prevent a grave &
serious threat to its safety from arising.

3.

We cant sacrifice public peace, order, safety & our political & economic
gains to give in to Marcos wish to die in the country. Compassion must give
way to the other state interests.

Decision:
No to both issues. Petition dismissed.
Ratio:
Separation of power dictates that each department has exclusive powers. According
to Section 1, Article VII of the 1987 Philippine Constitution, the executive power shall
be vested in the President of the Philippines. However, it does not define what is
meant by executive power although in the same article it touches on exercise of
certain powers by the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the appointing
power to grant reprieves, commutations and pardons (art VII secfs. 14-23).
Although the constitution outlines tasks of the president, this list is not defined &
exclusive. She has residual & discretionary powers not stated in the Constitution
which include the power to protect the general welfare of the people. She is obliged to
protect the people, promote their welfare & advance national interest. (Art. II, Sec. 4-5
of the Constitution). Residual powers, according to Theodore Roosevelt, dictate that
the President can do anything which is not forbidden in the Constitution (Corwin,
supra at 153), inevitable to vest discretionary powers on the President (Hyman,
American President) and that the president has to maintain peace during times of
emergency but also on the day-to-day operation of the State.
The rights Marcoses are invoking are not absolute. Theyre flexible depending on the
circumstances. The request of the Marcoses to be allowed to return to the Philippines
cannot be considered in the light solely of the constitutional provisions guaranteeing
liberty of abode and the right to travel, subject to certain exceptions, or of case law
which clearly never contemplated situations even remotely similar to the present one.
It must be treated as a matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it must be granted or
denied.

Cruz, Dissenting
1.

As a citizen of this country, it is Marcos right to return, live & die in his own
country. It is a right guaranteed by the Consti to all individuals, whether
patriot, homesick, prodigal, tyrant, etc.

2.

Military representatives failed to show that Marcos return would pose a

threat to national security. Fears were mere conjectures.

3.

Residual powers but the executives powers were outlined to limit her
powers & not expand.

Paras, Dissenting
1.

AFP has failed to prove danger which would allow State to impair Marcos
right to return to the Philippines. .

2.

Family can be put under house arrest & in the event that one dies, he/she
should be buried w/in 10 days.

3.

Untenable that without a legislation, right to travel is absolute & state is

powerless to restrict it. Its w/in police power of the state to restrict this right if
national security, public safety/health demands that such be restricted. It
cant be absolute & unlimited all the time. It cant be arbitrary & irrational.

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

4.

No proof that Marcos return would endanger national security or public

safety. Fears are speculative & military admits that its under control.
Filipinos would know how to handle Marcos return.

Padilla, Dissenting
Sarmiento, Dissenting
1.

Presidents determination that Marcos return would threaten national

security should be agreed upon by the court. Such threat must be clear &
present.

Issue:
Whether or not the motion for reconsideration that the Marcoses be allowed to return
in the Philippines be granted.
Decision:
No. The Marcoses were not allowed to return. Motion for Reconsideration denied
because of lack of merit.
Ratio:

Marcos, petitioner VS.

Manglapus, respondent (Part 2)

1.

Petitioners failed to show any compelling reason to warrant reconsideration.

2.

Factual scenario during the time Court rendered its decision has not
changed. The threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have
ceased. Imelda Marcos also called President Aquino illegal claiming that it
is Ferdinand Marcos who is the legal president.

3.

President has unstated residual powers implied from grant of executive

power. Enumerations are merely for specifying principal articles implied in
the definition; leaving the rest to flow from general grant that power,
interpreted in conformity with other parts of the Constitution (Hamilton).
Executive unlike Congress can exercise power from sources not enumerates
so long as not forbidden by constitutional text (Myers vs. US). This does not
amount to dictatorship. Amendment No. 6 expressly granted Marcos power
of legislation whereas 1987 Constitution granted Aquino with implied powers.

4.

It is within Aquinos power to protect & promote interest & welfare of the
people. She bound to comply w/ that duty and there is no proof that she
acted arbitrarily

G.R. No. 88211, October 27, 1989

Facts:
In its decision dated September 15, 1989, the Court by a vote of eight to seven,
dismissed the petition, after finding that the President did not act arbitrarily or with
grave abuse of discretion in determining that the return of former President Marcos
and his family pose a threat to national interest and welfare and in prohibiting their
return to the Philippines. On September 28, 1989, Marcos died in Honolulu, Hawaii.
President Corazon Aquino issued a statement saying that in the interest of the safety
of those who will take the death of Marcos in widely and passionately conflicting
ways, and for the tranquility and order of the state and society, she did not allow the
remains of Marcos to be brought back in the Philippines.
A motion for Reconsideration was filed by the petitioners raising the following
arguments:
1.

Barring their return would deny them their inherent right as citizens to return
to their country of birth and all other rights guaranteed by the Constitution to
all Filipinos.

2.

The President has no power to bar a Filipino from his own country; if she
has, she had exercised it arbitrarily.

3.

There is no basis for barring the return of the family of former President
Marcos.

5. Gudani vs. Senga

Facts:
FACTS
Gudani and Balutan are high ranking officials of the
Philippine Marines who, at the time of the incidents in this
case, were assigned at the Philippine Military Academy in
Baguio.
Senator Biazon invited several junior officers of the AFP
including Chief of Staff Senga to appear before the Senate
Committee on National Defense and Security on Sept. 28,
2005, in light of the electoral fraud in the 2004elections.

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

(Gudani and Balutan were assigned to maintain peace and

order in Lanao del Norte and Sur during the 04 elections).
Gen. Senga informed Senator Biazon that he could not
attend due to prior commitments but he would ask the other
officers to attend so the PMA superintendent was informed
that Gudani and Senga were invited to appear before the
Senate hearing.
On the evening of Sept. 27, a message was transmitted to
the PMA superintendent that as per instruction of Pres.
Arroyo, no AFP personnel shall appear before any
congressional hearing without the approval of the Pres.
HOWEVER, by that time Gudani and Senga already left
Baguio for Manila.
The following day, Gen. Senga informed Sen. Biazon that no
approval has been granted by the President to any AFP
officer to appear before the hearing scheduled on that day.
Nonetheless, both Gen. Gudani and Col.Balutan were
present as the hearing started, and they both testified as to
the conduct of the 2004 elections

Note: EO 464 was also issued on Sept 28.

The Office of the Solicitor General (OSG) manifests that
shortly before the start of the hearing, a copy of Gen.
Sengas letter to Sen. Biazon sent earlier that day was
handed at the Senate by Commodore Tolentino to
Gen.Gudani, who replied that he already had a copy. Further,
Gen. Senga called Commodore Tolentino on the latters cell
phone and asked to talk to Gen.Gudani, but Gen. Gudani
refused. In response, Gen. Senga instructedCommodore
Tolentino to inform Gen. Gudani that it was an order, yet
Gen. Gudani still refused to take Gen. Sengas call.
A few hours after Gen. Gudani and Col. Balutan had
concluded their testimony, the office of Gen. Senga issued a
statement which noted that the two officers disobeyed a
legal order, in violation of Artcles of War 65(Willfully
Disobeying Superior Officer), hence they will be subjected to
General Court Martial proceedings. Both Gen. Gudani and
Col. Balutan were likewise relieved of their assignments
then.
Petitioners were separately served with Orders directing
them to appear in person at the Pre-Trial Investigation of the
Charges for violation of Articles66 and 97 of Commonwealth
Act No. 408 and to submit their counter-affidavits and
affidavits of witnesses at the Office of the Judge Advocate
General. The Orders were accompanied by respective

HELD:

charge sheets against petitioners, accusing them of

violating Articles of War 65 and 97.
It was from these premises that the present petition for
certiorari and prohibition was filed, particularly seeking that
(1) the order of President Arroyo coursed through Gen.
Senga preventing petitioners from testifying before
Congress without her prior approval be declared
unconstitutional

The President has constitutional authority to do so, by virtue

of her power as commander-in-chief, and that as a consequence a
military officer who defies such injunction is liable under military
justice. At the same time, any chamber of Congress which seeks
the appearance before it of a military officer against the consent of
the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify
before it may be compelled to do so by the President. If the
President is not so inclined, the President may be commanded by
judicial order to compel the attendance of the military officer. Final
judicial orders have the force of the law of the land which the
President has the duty to faithfully execute.
The ability of the President to prevent military officers from
testifying before Congress does not turn on executive privilege, but
on the Chief Executives power as commander-in-chief to control
the actions and speech of members of the armed forces. The
Presidents prerogatives as commander-in-chief are not hampered
by the same limitations as in executive privilege.
The President could, as a general rule, require military
officers to seek presidential approval before appearing before
Congress is based foremost on the notion that a contrary rule
unduly diminishes the prerogatives of the President as commanderin-chief. Congress holds significant control over the armed forces in
matters such as budget appropriations and the approval of higherrank promotions, yet it is on the President that the Constitution
vests the title as commander-in-chief and all the prerogatives and
functions appertaining to the position. Again, the exigencies of
military discipline and the chain of command mandate that the
Presidents ability to control the individual members of the armed
forces be accorded the utmost respect. Where a military officer is
torn between obeying the President and obeying the Senate, the
Court will without hesitation affirm that the officer has to choose
the President. After all, the Constitution prescribes that it is the
President, and not the Senate, who is the commander-in-chief of
the armed forces.

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

The ruling that the President could, as a general rule, require
military officers to seek presidential approval before appearing
before Congress is based foremost on the notion that a contrary
rule unduly diminishes the prerogatives of the President as
commander-in-chief. Congress holds significant control over the
armed forces in matters such as budget appropriations and the
approval of higher-rank promotions, yet it is on the President that
the Constitution vests the title as commander-in-chief and all the
prerogatives and functions appertaining to the position.
Again, the exigencies of military discipline and the chain of
command mandate that the Presidents ability to control the
individual members of the armed forces be accorded the utmost
respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation
affirm that the officer has to choose the President. After all, the
Constitution prescribes that it is the President, and not the Senate,
who is the commander-in-chief of the armed forces. Remedy is
judicial relief at the same time, the refusal of the President to allow
members of the military to appear before Congress is still subject to
judicial relief. The Constitution itself recognizes as one of the
legislatures functions is the conduct of inquiries in aid of
legislation. Inasmuch as it is ill-advised for Congress to interfere
with the Presidents power as commander-in-chief, it is similarly
detrimental for the President to unduly interfere with Congresss
right to conduct legislative inquiries. The impasse did not come to
pass in this petition, since petitioners testified anyway despite the
presidential prohibition. Yet the Court is aware that with its
pronouncement today that the President has the right to require
prior consent from members of the armed forces, the clash may
soon loom or actualize. We believe and hold that our constitutional
and legal order sanctions a modality by which members of the
military may be compelled to attend legislative inquiries even if the
President desires otherwise, a modality which does not offend the
Chief Executives prerogatives as commander-in-chief. The remedy
lies with the courts. The fact that the executive branch is an equal,
coordinate branch of government to the legislative creates a
wrinkle to any basic rule that persons summoned to testify before
Congress must do so. There is considerable interplay between the
legislative and executive branches, informed by due deference and
respect as to their various constitutional functions. Reciprocal
courtesy idealizes this relationship; hence, it is only as a last resort
that one branch seeks to compel the other to a particular mode of
behavior. The judiciary, the third coordinate branch of government,
does not enjoy a similar dynamic with either the legislative or
executive branches. Whatever weakness inheres on judicial power

due to its inability to originate national policies and legislation, such

is balanced by the fact that it is the branch empowered by the
Constitution to compel obeisance to its rulings by the other
branches of government.

6. Office of Administrative Services-Office of the

Court Administrator, complainant, vs. Judge
Ignacio B. Macarine, Municipal Circuit Trial Court,
Gen. Luna, Surigao Del Norte, respondent.
Facts:
On August 13, 2009, the respondent wrote then Court Administrator, now Associate
Justice Jose Portugal Perez, requesting for authority to travel to Hongkong with his
family for the period of September 10 - 14, 2009 where he would celebrate his 65th
birthday. The respondent stated that his travel abroad shall be charged to his annual
forced leave. However, he did not submit the corresponding application for leave. For
his failure to submit the complete requirements, his request for authority to travel
remained unacted upon. The respondent proceeded with his travel abroad without the
required travel authority from the OCA. On January 28, 2010, the respondent was
informed by the OCA that his leave of absence for the period of September 9-15,
2009 had been disapproved and his travel considered unauthorized by the Court. His
absences shall not be deducted from his leave credits but from his salary
corresponding to the seven days that he was absent, pursuant to Section 50 of the
Omnibus Rules on Leave. The respondent was also required to submit his
explanation on his failure to comply with OCA Circular No. 49-2003.
Issue:
Whether or not there exists a violation to the right to travel.
Ruling:
There is no violation on the right to travel. True, the right to travel is guaranteed by the
Constitution. However, the exercise of such right is not absolute. Section 6, Article III
of the 1987 Constitution allows restrictions on ones right to travel provided that such
restriction is in the interest of national security, public safety or public health as may
be provided by law. This, however, should by no means be construed as limiting the
Courts inherent power of administrative supervision over lower courts. OCA Circular
No. 49-2003 does not restrict but merely regulates, by providing guidelines to be
complied by judges and court personnel, before they can go on leave to travel
abroad. To "restrict" is to restrain or prohibit a person from doing something; to
"regulate" is to govern or direct according to rule.

The Court reiterated its rule regarding foreign travel and necessity for
permission from the Court. True, the right to travel is guaranteed by the
Constitution. However, the exercise of such right is not absolute. Section 6,

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

Article III of the 1987 Constitution allows restrictions on ones right to travel
provided that such restriction is in the interest of national security, public
safety or public health as may be provided by law. This, however, should by
no means be construed as limiting the Courts inherent power of
administrative supervision over lower courts. OCA Circular No. 49-2003 does
not restrict but merely regulates, by providing guidelines to be complied by
judges and court personnel, before they can go on leave to travel abroad. To
restrict is to restrain or prohibit a person from doing something; to regulate
is to govern or direct according to rule.

example of such inherent limitation is the power of the trial courts to prohibit persons
charged with a crime to leave the country. Some of these statutory limitations are the
following:
1. The Human Security Act of 2010 or Republic Act (R.A.) No. 9372.
2. The Philippine Passport Act of 1996 or R.A. No. 8239.
3. The Anti-Trafficking in Persons Act of 2003 or R.A. No. 9208.

Justice Sereno reiterated her dissent in regard to the question of

foreign travel. She wrote: The policy of the Court requiring judges and court
personnel to secure a travel authority must be re-examined. As stated in the
Dissenting Opinion of Senior Associate Justice Antonio T. Carpio, the
Guidelines on Request for Travel Abroad of all Members and Personnel of
the Appellate Courts and Trial Courts, and Officials and Personnel of the
Supreme Court and the Office of the Court Administrator call for a wholistic
review of the guidelines for travels abroad of all members and personnel of
the Judiciary. Requiring judges and court personnel prior submission of a
request for travel authority impairs their right to travel, a constitutional right
that cannot be unduly curtailed. During the approved leave of absence of a
judge or court personnel, he or she should be accorded the liberty to travel
within the country or abroad, as any other citizen, without this Court imposing
a requirement to secure prior permission therefor. Moreover, the Court
cannot inquire into the purpose of the intended travel of a judge or court
personnel, as doing so would be an unwarranted interference into his or her
private affairs.

7. Leave Division of OCA vs Heusdens

A.M. No. P-11-2927, December 13, 2011Facts:
FACTS: Respondent left for abroad without waiting for the result of her
application. It turned out that no travel authority wasissued in her favor because she
was not cleared of all her accountabilities as evidenced by the SC Certificate
ofClearance. The OCA found respondent to have violated the OCA Circular for failing
to secure the approval of her application for travel authority.
Issue: What are the inherent and statutory limitations on the constitutional right to
travel?
Ruling: The exercise of ones right to travel is not absolute. There are constitutional,
statutory and inherent limitations regulating the right to travel. Section 6 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. Inherent
limitations on the right to travel are those that naturally emanate from the source. An

4. The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as
amended by R.A. No. 10022.
5. The Act on Violence against Women and Children or R.A. No. 9262.
6. Inter-Country Adoption Act of 1995 or R.A. No. 8043.

Members and employees of the judiciary are required to

secure prior approval if they are to travel abroad, even if it is during
their vacations. In this case, a court employee applied 2 months
before her intended vacation and left without having obtained prior
approval. A month after her return, her request was disapproved
since she failed to secure clearance from the Supreme Court
Savings and Loan Magnificus Juris Bar Review 2013 R B G A Library
Of Liberties vis--vis An Arsenal Of Arms R B GOROSPE
CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2013) Page
66 of 114 Association (SCSLA) where she had an outstanding loan.
In the discussions by the majority and the minority, the
constitutional right to travel cropped up. The majority dismissed
that issue, however, holding that such was not the issue in this
case. The only issue in this case is the non-compliance with the
Courts rules and regulations. It should be noted that respondent, in
her Comment, did not raise any constitutional concerns. In fact, she
was apologetic and openly admitted that she went abroad without
the required travel authority. Hence, this is not the proper vehicle to
thresh out issues on ones constitutional right to travel. The Court
then went on to state that OCA Circular No. 49-2003 regulates court
employees foreign travel in an unofficial capacity, which
regulation is necessary for the orderly administration of justice. If
judges and court personnel can go on leave and travel abroad at
will and without restrictions or regulations, there could be a
disruption in the administration of justice. A situation where the

VIII. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

employees go on mass leave and travel together, despite the fact
that their invaluable services are urgently needed, could possibly
arise. For said reason, members and employees of the Judiciary
cannot just invoke and demand their right to travel. To permit such
unrestricted freedom can result in disorder, if not chaos, in the
Judiciary and the society as well. In a situation where there is a
delay in the dispensation of justice, litigants can get disappointed
and disheartened. If their expectations are frustrated, they may
take the law into their own hands which results in public disorder
undermining public safety. In this limited sense, it can even be
considered that the restriction or regulation of a court personnels
right to travel is a concern for public safety, one of the exceptions
to the non-impairment of ones constitutional right to travel.
Justice Carpios dissented and he was joined by Justices
Abad and Sereno. He wrote: The OCA has no power to enforce the
collection of loans extended by a private lender, under pain of
denying a constitutional right of a citizen if he does not secure
clearance from the private lender. Although OCA Circular No. 492003 provides that clearance as to money and property
accountability is one of the requirements to be submitted, this
refers to accountability to the government, not to a private
company like the SCSLA. Even if the OCAs Certificate of Clearance
Form requires the SCSLAs conformity, such requirement has no
legal basis. The OCA does not have jurisdiction to require such
clearance because that would be tantamount to making the Court a
collecting agent of the SCSLA which is a private association.
Indeed, the OCA has no right to denya court employees
constitutional right to travel just to enforce collection of the
SCSLAs loans to its members. There is no law prohibiting a person
from traveling abroad just because he has an existing debt or

financial obligation. Still on the right to travel, he said: The

constitutional right to travel cannot be impaired without due
process of law. Here, due process of law requires the existence of a
law regulating travel abroad, in the interest of national security,
public safety or public health. There is no such law applicable to the
travel abroad of respondent. Neither the OCA nor the majority can
point to the existence of such a law. In the absence of such a law,
the denial of respondents right to travel abroad is a gross violation
of a fundamental constitutional right.
To Justice Carpio right to privacy was also implicated.
During her approved leave of absence, respondents time was her
own personal time and she could be wherever she wanted to be.
The Court cannot inquire what respondent does during her leave of
absence since that would constitute unwarranted interference into
her private affairs and would encroach on her right to privacy. In
other words, once a leave of absence is approved, any restriction
during the approved leave on the right to travel of the government
employee violates his or her constitutional right to travel. He
further added: This Court should be the first to protect the right to
travel of its employees, . . . . In fact, the duty of this Court under
Section 5(5), Article VIII of the Constitution is to promulgate rules
concerning the protection and enforcement of constitutional rights,
not to curtail such rights. Neither can this Court promulgate rules
that diminish or even modify substantive rights like the
constitutional right to travel.