Cold neutrality of judges | Inquirer Opinion

Cold neutrality of judges | Inquirer Opinion

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The central issue. To my mind one central issue in the ongoing litigation is whether the executive department, independently of court orders, can curtail a citizen’s right to travel. This issue in turn depends so much on the meaning of the tricky phrase “as may be provided by law.”

The Bill of Rights says “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.” Is the phrase “as may be provided by law” limitive or expansive? In other words, should the provision of law authorizing impairment always be related to “national security, public safety, or public health,” or does the phrase mean that Congress is free to provide grounds for impairment in addition to national security, public safety, or public health? If it is the latter meaning, the phrase added by the 1986 Constitutional Commission should have been “or as may be provided by law.”
On the other hand, if the meaning of the phrase is limitive, that is, any restrictive provision of

law must be related to national security, public safety, or public health, how closely must the law be related to these three? A case in point is the current justification of hold-departure orders (HDOs) and watch-list orders (WLOs). DOJ Circular 41 purports to base it on a provision of the Administrative Code which authorizes the Department of Justice to “investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services . . . to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individual’s right to travel.” If this broad prosecutorial and investigatory power of the DOJ can authorize restriction on the constitutional right to travel, can it also justify restriction on other constitutional rights—e.g., the rights of the accused found in Section 14 of the same Bill of Rights?

Conceivably, the DOJ restriction on GMA (Arroyo) is being imposed on the argument that she is a flight risk and can therefore frustrate investigation and prosecution and that therefore, to that extent, her escape from investigation and prosecution can be a threat to “public safety.” Voila, the Constitution is satisfied! Should the Supreme Court buy that argument?

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