READING TRUMP’S EO ON TRAVEL BAN
POTUS issued an Executive Order last January 27, 2017 (see full text with annotation here) entitled PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES. The controversial order states:
I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
After initial confusion over which countries this order actually refers to (because they are not listed here), the Department of Homeland Security issued a fact sheet that specified Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen. (Annotation of Bryan Naylor of NPR Washington Desk Correspondent)
In his column Trade Tripper Jemy Gatdula (Business World) wrote that:
Every State, whether it is the Philippines or the US, has certain inherent rights, including the right to defend itself and its citizens and maintain territorial integrity.
He continued in clarifying the EO of Trump saying that it is stopping “radical Islamic terrorists” from entering the US and NOT a Muslim ban which is contrary to the labeling by liberal media outlets.
Mr. Gatdula said that
The EO never even mentions Muslims. Instead, the main point (aside from the a 120-day suspension of the US refugee program) is a 90-day ban on the citizens (regardless of religion) of Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen from entering the US.
However, Domenico Montanaro of NPR Political Editor & Digital Audience
If you CTRL+F this document, you won’t find the words “Christian” or “Muslim.” But if you read closely, this is the section that indicates prioritizing Christians. How so? Because the seven countries affected by this order are all Muslim-majority countries. Also note that Trump himself indicated a preference for prioritizing Christians in an interview with the Christian Broadcasting Network. And former Trump campaign surrogate Rudy Giuliani told Fox that Trump first called it a “Muslim ban” but asked him to come up with a legal framework for it. Giuliani said he did, one based on “danger,” not religion.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
Trump’s EO authority was based on Section 212 (f) of the US Immigration and Nationality Act of 1952:
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
The banned countries was incidentally based on an Obama measure in 2015 called Visa Waiver Program Improvement and Terrorist Travel Prevention Act.
The EO restricts the privilege of other citizens in entering a foreign country because entry to a foreign country is not a human right but a privilege granted by that country. And the EO is a temporary measure and green card holders are not covered by the ban.
Here in the Philippines, we also have the same cautious attitude even as to Filipinos who want to return to the PH.
THE CASE OF MARCOS v MANGLAPUS (178 SCRA 760)
Former President Marcos and his family spent three year exile in Hawaii, USA and sought to return to the Philippines. Mr. Marcos, in his deathbed, has signified his wish to return to the Philippines to die. But Mrs. 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 Mr. Marcos and his family. The Marcoses ask the Courts to order Manglapus (then DFA Secretary) et. al. to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President’s decision to bar their return to the Philippines.
The Marcoses assert their rights namely:
- Bill of Rights
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because only a court may do so “within the limits prescribed by law.” Nor may the President impair their right to travel because no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or agency of the government, there must be legislation to that effect.
2. The Universal Declaration of Human Rights:
(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
3. The International Covenant on Civil and Political Rights:
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
The case distinguished the RIGHT TO TRAVEL which is guaranteed in the 1987 Constitution from the RIGHT TO RETURN TO ONE’S COUNTRY which is NOT among the rights contained in the Bill of Rights but may be considered, as a generally accepted principle of international law.
Justice Irene Cortes said:
The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land (citation omitted) However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being “arbitrarily deprived” thereof. [Art. 12 (4).]
The case resolved one of the issues:
- Whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines.
THE RULING OF THE COURT
YES. 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.
The 1987 Constitution has fully restored the separation of powers of the three great branches of government “with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government.” (Angara vs. Electoral Commission).
“The executive power shall be vested in the President of the Philippines.” (Art. VII, Sec. 1).
However, it does not define what is meant by executive power” although in the same article it touches on the exercise of certain powers by the President [Art. VII, Sec. 14-23],
- the power of control over all executive departments, bureaus and offices;
- the power to execute the laws
- the appointing power;
- the powers under the commander-in-chief clause;
- the power to grant reprieves, commutations and pardons;
- the power to grant amnesty with the concurrence of Congress;
- the power to contract or guarantee foreign loans;
- the power to enter into treaties or international agreements;
- the power to submit the budget to Congress; and
- the power to address Congress.
The inevitable question then arises: by enumerating certain powers of the President did the framers of the Constitution intend that the President shall exercise those specific powers and no other?
Justice Cortes negated in this wise:
It would not be accurate, however, to state that “executive power” is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country’s foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of “executive power.” Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive.
WHAT POWER IS INVOLVED IN THE DENIAL OF THE RIGHT TO RETURN TO THE PHILIPPINES BY FORMER PRESIDENT FERDINAND MARCOS?
The residual power to protect the general welfare of the people. It is a power borne by the President’s duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President’s duty to take care that the laws are faithfully executed (see Hyman, The American President).
The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President’s exercising as Commander-in- Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security.
The Constitution’s Article III allows the government to undertake measures restricting travel to anyone “in the interest of national security, public safety, or public health, as may be provided by law.”
OTHER LAWS RESTRICTING ENTRY OF FOREIGN PERSONS
Other laws of the PH also restrict aliens from coming in the PH like Sec. 29 (a) par. 8 of Commonwealth Act No. 613 (The Philippine Immigration Act of 1940) which provides:
Persons who believe in or advocate the overthrow by force and violence of the Government of the Philippines, or of constituted lawful authority, or who disbelieve in or are opposed to organized government, or who advocate the assault or assassination of public officials because of their office, or who advocate or teach principles, theories, or ideas contrary to the Constitution of the Philippines or advocate or teach the unlawful destruction of property, or who are members of or affiliated with any organization entertaining or teaching such doctrines