PH immigration issues

[Just Saying] Reasons the new travel regulations are flawed

Mel Sta Maria

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[Just Saying] Reasons the new travel regulations are flawed

David Castuciano/Rappler

'The airport will be a symbol of alienation, suspicion, and even animosity'

The new travel regulations – which have been temporarily suspended by the Department of Justice – are flawed and could be dangerous from the constitutional and legal point of view.  They unduly restrict the right to travel by all Filipinos. Contained in the Bill of Rights alongside the freedoms of speech, press,  expression, association, and religion, among others, Article 3 Section 6 of the 1987 Constitution  unequivocally guarantees that the right to travel cannot be impaired except in the interest of national security, public safety, or public health, as may be provided by law.  

Trafficking in persons is a heinous crime, to be sure, and should be stopped, and one way of doing so would be to exercise vigilance in ports of entry and exit. However the solution should not involve unduly  infringing on the other rights and freedoms constitutionally granted to Filipinos. That is why the invocation of national  security, public safety, and public health as exceptions must be examined seriously and scrutinized lengthily lest, in their application, the transgression of the fundamental rights  of others – not necessarily suspects – can happen. 

Indeed, while the  intent of the rules is good, taking into context the various horror stories and allegations of corruption at the airport such as the incidents on “laglag bala,” “pastillas,” and the unnecessary prying and protracted interviews of travelers, even an isolated abusive or negligent act by airport officials is a matter of great concern. 

The abhorrent aspects of the new regulations can easily be demonstrated:

First. If an immigration officer (IO) thinks that the financial capability or purpose of a Filipino about to travel abroad is not satisfactory, the IO can delay or bar him/her from leaving the country even in the absence of any concrete demonstrable danger to national security, public safety, and public health. The basis will just be an impromptu judgment arising from a random determination that the documents are lacking or a subjective finding that the purpose  is questionable. A traveler is, in effect, immediately considered a “person of interest” either as a “potential victim” in relation to trafficking, or conversely, a “potential trafficker” without incriminating probable cause, thus violating his/her constitutional right to be presumed innocent. This is just fundamentally repugnant.  

Second. If travelers do not want to reveal other information regarding their financial capability, they can essentially be meted out a penalty of no-travel without due process of law – all because such refusal has not sat well with the IO even if there is no convincing and clear proof justifying the deprivation of their right to travel. And if, due to desperation, travelers are forced to show protected information under the Data Privacy Law and confidential bank accounts pursuant to the Bank Secrecy Law, would not this be tantamount to a Filipino citizen being subjected to unlawful search without a warrant prohibited under the Constitution?  

Third. To intrude into the protected rights of a Filipino citizen, there must be a showing of clear and present danger to the state, and there should be no other least intrusive means devisable, available, or implementable other than such infringement or restriction to travel. In other words, deprivation of a constitutional right should not be the means to protect a citizen, even from a serious problem like trafficking. The panopoly of government powers funded not only by its normal budget but also by millions of intelligence funds can be used for legitimate surveillance and investigation so that the real culprits can be known even before they set foot on the airport. It is not necessary to scrutinize each and every traveler already about to leave the country. The burden of inconvenience must not be indiscriminately shifted to the ordinary traveler. 

Fourth. The regulations are clearly discriminatory and anti-ordinary wage earners who have a sincere desire to travel and who constitute majority of our population. One can just imagine a millionaire going  smoothly through the immigration check answering only a few questions or without being questioned at all, while the ordinary wage earner will be subjected to a plethora of unnerving questions, initially given an eye of suspicion. This is obnoxious profiling – an unequal treatment in its most blatant manifestation. No Filipino should be unduly discriminated based on financial capacity or resources. 

Fifth. The safety of some minor Filipinos may be placed in danger by the new regulation. Contained in the  part of the regulation entitled “MINORS” is section 2.2 (a) providing that passengers traveling with a minor shall present a DSWD Certificate of Exemption from the Travel Clearance Certificate (TCC) “if the parents are not married and the minor is traveling with the biological father who has sole parental authority or legal custody of the minor.”

In the Philippines, the child of parents who are not married is an illegitimate child. According to the law   (Article 176 of the Family Code) and Supreme Court jurisprudence (Briones vs Miguel G.R. No. 156343,  October 18, 2004), only the mother – not the biological father – has principal parental authority over an illegitimate child. And custody of the child is the necessary consequence of such parental authority.   Even courts cannot  grant principal parental authority to the father of an illegitimate child (except through adoption and in cases of substitute parental authority) while the mother is living and capable of rearing her child because to do so is against the law (Grande vs. Antonio G.R. NO. 206248, February 18, 2014).  At the very least, the father may be given only substitute parental authority if he has custody and the mother is grossly remiss.

The provision in the new regulation of an illegitimate child under the “sole parental authority” of the father is fraught with danger. Corrupt officials can make use of this flawed requirement to expedite the  kidnapping of minor illegitimate children, thereby illegally  depriving the mother of the rightful  custody of her illegitimate children. It may even lead to trafficking if the father is so irresponsible and unscrupulous  as to even have his child taken or exploited for a fee by syndicates. To prevent this, an official court decision must be required by the rules clearly showing that substitute parental authority has been granted to the father, the reasons for the same and showing the limitations and safeguards of such grant. The DSWD and the particular IOs cannot and should not be considered to be given the power to make determinations on “sole parental authority.”  

Indeed “the road to hell is paved with good intentions.” No matter how noble the idea of protecting children from trafficking, if the regulation is defective and inadequate, the children’s road to hell may even be hastened.  

Fundamentally, the Constitution announces that Filipinos shall have the fundamental right to travel. As such, a citizen need not ask permission from the state to exercise it. He/she can just responsibly do it.  When one goes in front of an immigration officer and present his/her passport with visa and boarding pass, he/she is saying “I, as a citizen, am notifying you that I am exercising my constitutionally protected right to travel going out of the country, and so let me pass.” There should be no option but to let one pass. That should be the default mode. But now, because of the many requirements and the wide discretion granted to the IOs, the Filipino traveler in effect is compelled to request, “Sir/Maam, may I go out?” 

How constitutionally sickening is that, especially when foreign countries, via their grant of visas in our favor, have already satisfied themselves of our acceptability  to enter and sojourn in their country? It becomes more disgusting when the one who deems us not deserving to travel is a Filipino working inside the Philippine airport with probably only 15 minutes or less to make a very crucial determination dealing  with the right to travel of a citizen.

 Usually going to the airport for departure and arrival is a very enjoyable experience. It is fun just to walk around the airport waiting for check-in and boarding. If the regulations are enforced, the mood will definitely change. It will be one of nervousness and uncertainty. The airport will be a symbol of alienation, suspicion, and even animosity which a traveler must get through. I continue to ask why this government  administration wishes to subject the Filipino traveler to much useless mental anxiety? It does not make sense. It is irrational. 

At the very least, the new travel regulations must again be thoroughly studied with the safeguard under the Bill of Rights in the Constitution given the highest importance and  the proper implementation. –

Mel Sta Maria is former dean of the Far Eastern University (FEU) Institute of Law. He teaches law at FEU, Ateneo School of Law, University of Santo Tomas, Pamantasang Lungsod ng Maynila, and the University of Makati; hosts shows on both radio and Youtube; and has authored several books on law, politics, and current events.

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