A.M. No. P-11-2927 LEAVE DIVISION, OFFICE OF ADMINISTRATIVE SERVICES-OCA, Complainant, v. WILMA SALVACION P. HEUSDENS, CLERK IV, MUNICIPAL TRIAL COURT IN CITIES, TAGUM CITY, Respondent.

Promulgated:

December 13, 2011

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DISSENTING OPINION

CARPIO, J.:

This case involves a government employees constitutional right to travel abroad.

Respondent Wilma Salvacion P. Heusdens (respondent), Clerk IV of the Municipal Trial Court in Cities in Tagum City, traveled abroad without travel authority as required by OCA Circular No. 49-2003. The majority holds that respondent has violated OCA Circular No. 49-2003, and must accordingly be admonished.

I disagree.

The pertinent provisions of OCA Circular No. 49-2003¹ read:

B. VACATION LEAVE TO BE SPENT ABROAD

Pursuant to the resolution in A.M. No. 99-12-08-SC dated 06 November 2000, all foreign travels of judges and court personnel, regardless of the number of days, must be with prior permission from the Supreme Court through the Chief Justice and the Chairmen of the Divisions.

1. Judges and court personnel who wish to travel abroad must secure a travel authority from the Office of the Court Administrator. The judge or court personnel must submit the following:

(a) For Judges:

application or letter-request addressed to the Court Administrator stating the purpose of the travel abroad

application for leave covering the period of the travel abroad, favorably recommended by the Executive Judge

certification from the Statistics Division, Court Management Office, OCA as to the condition of the docket

(b) For Court Personnel:

application or letter-request addressed to the Court Administrator stating the purpose of the travel abroad

application for leave covering the period of the travel abroad, favorably recommended by the Presiding Judge or Executive Judge

clearance as to money and property accountability

clearance as to pending criminal and administrative case filed against him/her, if any

for court stenographer, clearance as to pending stenographic notes for transcription from his/her court and from the Court of Appeals

Supreme Court clearance

2. Complete requirements should be submitted to and received by the Office of the Court Administrator at least two weeks before the intended period. No action shall be taken on requests for travel authority with incomplete requirements. Likewise, applications for travel abroad received less than two weeks of the intended travel shall not be favorably acted upon.

x x x

4. Judges and personnel who shall leave the country without travel authority issued by Office of the Court Administrator shall be subject to disciplinary action. (Emphasis supplied)

Respondent filed a leave application for travel abroad covering the period from 11 September 2009 to 11 October 2009. Respondents leave application, favorably recommended by Presiding Judge Lirag-Palabrica, was received by the Employees Leave Division, Office of the Administrative Services, Office of the Court Administrator (OCA) on 10 July 2009. When respondent did not receive any action from the OCA on her leave application, she went ahead with her intended leave and travel abroad believing that her leave application would be eventually approved by the Court. Respondent reported back to work after her leave.

On 26 November 2009, more than two months after the start of respondents intended leave, the OCA issued a memorandum recommending disapproval of respondents leave application. Thus, in a letter dated 6 January 2010, the OCA informed respondent that her leave application was disapproved and her travel abroad was unauthorized. The OCA subsequently recommended that respondent be reprimanded for violating OCA Circular No. 49-2003.

Under Section 60 of Executive Order No. 292² (EO 292), officers and employees in the Civil Service are entitled to leave of absence, with or without pay, as may be provided by law and the rules and regulations of the Civil Service Commission.

Executive Order No. 6³ (EO 6), issued by then President Corazon C. Aquino on 12 March 1986, provides for the procedure in the disposition of requests of government officials and employees for authority to travel abroad.⁴ EO 6 states:

[T]he travels abroad of government officials and employees shall be authorized by the heads of the ministries and government-owned or controlled corporations, except those of the following government officials which shall be submitted to the Office of the President for decision:

1. Members of the Cabinet, Deputy Ministers and heads of Financial Institutions.

2. Justices of the Supreme Court and Intermediate Appellate Court.

3. Members of Constitutional Commissions.

4. Those which require full powers.

On 31 July 1986, Memorandum Order No. 26⁵ was issued, modifying EO 6, thus:

Executive Order No. 6 is hereby modified to the extent that the Chief Justice and Associate Justices of the Supreme Court are hereby exempted from the provisions thereof requiring them to secure the prior approval of the Office of the President in connection with their travel abroad.

The Supreme Court may promulgate guidelines on travels abroad for its members and that of the lower courts and their respective employees.

Requests for permission to travel abroad from members and employees of the judiciary shall henceforth be obtained from the Supreme Court.

In accordance with Memorandum Order No. 26, the Supreme Court issued A.M. No. 96-3-06-0 dated 19 March 1996, providing guidelines on requests for travel abroad on official business or official time by all members and personnel of the Judiciary. In A.M. No. 99-12-08-SC dated 6 November 2000, administrative matters relating to foreign travel of judges and court personnel were referred to the Chief Justice and the Chairmen of the Divisions for their appropriate action.

On 20 May 2003, OCA Circular No. 49-2003 was issued, containing the guidelines on requests for travel abroad for judges and court personnel pursuant to the Supreme Court resolutions in A.M. No. 96-3-06-0 and A.M. No. 99-12-08-SC. OCA Circular No. 49-2003 provides that complete requirements should be submitted to the OCA at least two weeks before the intended period of travel.

Respondents leave application for travel abroad was received by the OCA on 10 July 2009, or two months before her intended leave from 11 September 2009 to 11 October 2009. However, it was only on 26 November 2009, or after respondents intended leave, that the OCA issued a memorandum recommending disapproval of her leave application. Furthermore, it was only in a letter dated 6 January 2010 that the OCA informed respondent of the disapproval of her leave application. Clearly, the OCAs letter dated 6 January 2010 disapproving the leave application came too late. Although OCA Circular No. 49-2003 does not provide for the time frame within which to act on the leave application, it is understood that it should be prior to the applicants intended leave. The requirement that the leave application be submitted to the OCA at least two weeks before the intended leave for travel is to give sufficient time for its approval or disapproval before the intended leave.

Under the Omnibus Rules Implementing Book V of EO 292, a leave application should be acted upon within five (5) working days after its receipt, otherwise the leave application is deemed approved. Section 49, Rule XVI of the Omnibus Rules on Leave reads:

SEC. 49. Period within which to act on leave application. Whenever the application for leave of absence, including terminal leave, is not acted upon by the head of agency or his duly authorized representative within five (5) working days after receipt thereof, the application for leave of absence shall be deemed approved. (Emphasis supplied)

Thus, this Court, in the recent case of Commission on Appointments v. Paler,⁶ held that respondent Paler could not be considered absent without leave since his leave application was deemed approved. There was no final approval or disapproval of Palers application within five working days from receipt of his leave application as required by Section 49. More so in this case, where the leave application was received by the OCA two months before the intended leave but was only acted upon after the intended leave. Thus, respondents leave of absence was deemed approved as of 15 July 2009 pursuant to Section 49, Rule XVI of the Omnibus Rules on Leave.

The majority states that although respondent submitted her leave application for foreign travel, she failed to comply with the clearance and accountability requirements because she failed to secure clearance from the Supreme Court Savings and Loan Association (SCSLA) where she had an outstanding loan. Thus, since OCA Circular No. 49-2003 specifically provides that no action shall be taken on requests for travel authority with incomplete requirements, the majority rationalizes that respondent should have expected that her leave application would be disapproved.

I disagree with the majoritys view that clearance from the SCSLA is required before a court employee can exercise his or her constitutional right to travel abroad. The SCSLA is a private association with private funds, even if some of its investors are Supreme Court officials. 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. 49-2003 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 deny a 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. Requiring the court employee clearance from the SCSLA is no different from requiring the court employee to secure a clearance from his or her creditor banks before he or she can travel abroad. That would unduly restrict a citizens right to travel which is guaranteed by Section 6, Article III of the 1987 Constitution:

SEC. 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. (Emphasis supplied)

Although the constitutional right to travel is not absolute, it can only be restricted in the interest of national security, public safety, or public health, as may be provided by law. As held in Silverio v. Court of Appeals:⁷

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without court order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of national security, public safety, or public health and as may be provided by law, a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga v. Hermoso & Travel Processing Center, No. L-53622, 25 April 1980, 97 SCRA 121).⁸ (Emphasis supplied)

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. The only exception recognized so far is when a court orders the impairment of the right to travel abroad in connection with a pending criminal case.⁹ Another possible exception is if Congress, pursuant to its power of legislative inquiry, issues a subpoena or arrest order against a person. These exceptions, however, do not apply in the present case. Here, respondent was not even facing a preliminary investigation or an administrative complaint when she left the country.

The SCSLA clearance is not required by any law before a court employee can travel abroad. The SCSLA clearance is not even specifically required under OCA Circular No. 49-2003. Clearly, respondent has submitted to the OCA all the requirements for her leave application two months prior to her intended leave. Thus, respondents leave application was deemed approved as of 15 July 2009 pursuant to Section 49, Rule XVI of the Omnibus Rules on Leave and the Omnibus Rules Implementing Book V of EO 292.¹⁰

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. The right to privacy is the right of an individual to be let alone, or to be free from unwarranted publicity, or to live without unwarranted interference by the public in matters in which the public is not necessarily concerned.¹¹ Under Article 26 of the Civil Code, the right to privacy is expressly protected:

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

1. Prying into the privacy of anothers residence;

2. Meddling with or disturbing the private life or family relations of another;

3. Intriguing to cause another to be alienated from his friends;

4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. (Emphasis supplied)

Furthermore, respondents travel abroad, during her approved leave, did not require approval from anyone because respondent, like any other citizen, enjoys the constitutional right to travel within the Philippines or abroad. Respondents right to travel abroad, during her approved leave, cannot be impaired except in the interest of national security, public safety, or public health, as may be provided by law. Not one of these grounds is present in this case.

There is no doubt that the use of leave of absence can be regulated without impairing the employees right to privacy and to travel. In fact, the Civil Service Commission has promulgated the Omnibus Rules Implementing Book V of Executive Order No. 292, of which Rule XVI is the Omnibus Rules on Leave. Such rules and regulations are adopted to balance the well-being and benefit of the government employees and the efficiency and productivity in the government service. Thus, the requirement of securing approval for any leave of absence is a reasonable and valid regulation to insure continuity of service in the government. However, 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.

This Court should be the first to protect the right to travel of its employees, a right enshrined not only in the Bill of Rights but also in the United Nations Universal Declaration of Human Rights as well as in the International Covenant on Civil and Political Rights.¹² The Philippines is a signatory to the Declaration¹³ and a state party to the Covenant.¹⁴ 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 rights¹⁵ like the constitutional right to travel.

Accordingly, I vote to DISMISS the administrative complaint against Wilma Salvacion P. Heusdens, Clerk IV, Municipal Trial Court in Cities, Tagum City.

ANTONIO T. CARPIO

Associate Justice

1GUIDELINES ON REQUESTS FOR TRAVEL ABROAD AND EXTENSIONS FOR TRAVEL/STAY ABROAD.

2Administrative Code of 1987.

3PROVIDING PROCEDURES IN THE DISPOSITION OF REQUESTS OF GOVERNMENT OFFICIALS AND EMPLOYEES FOR AUTHORITY TO TRAVEL ABROAD.

4On 27 October 1992, then President Fidel V. Ramos issued Memorandum Circular No. 18, which clarified the rules and regulations on travel abroad of government officials and employees. The procedure regarding requests for travel authority was further streamlined under Executive Order No. 459, issued by then President Gloria Macapagal-Arroyo on 1 September 2005.

5MODIFYING EXECUTIVE ORDER NO. 6 PROVIDING PROCEDURES RELATIVE TO REQUESTS OF GOVERNMENT OFFICIALS AND EMPLOYEES FOR AUTHORITY TO TRAVEL ABROAD. Issued on 31 July 1986.

6G.R. No. 172623, 3 March 2010, 614 SCRA 127.

7G.R. No. 94284, 8 April 1991, 195 SCRA 760.

8Id. at 765.

9 Dr. Cruz v. Judge Iturralde, 450 Phil. 77 (2003); Hold-Departure Order issued by Judge Occiano, 431 Phil. 408 (2002); Silverio v. Court of Appeals, G.R. No. 94284, 8 April 1991, 195 SCRA 760.

10 Section 49, Rule XVI of the Omnibus Rules on Leave reads:

SEC. 49. Period within which to act on leave application. Whenever the application for leave of absence, including terminal leave, is not acted upon by the head of agency or his duly authorized representative within five (5) working days after receipt thereof, the application for leave of absence shall be deemed approved. (Emphasis supplied)

111 A. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, 108 (1990).

12Article 13 of the UN Universal Declaration of Human Rights provides: Everyone has the right to leave any country, including his own, and to return to his country. Article 12 of the International Covenant on Civil and Political Rights provides: Everyone shall be free to leave any country, including his own.

13In Mejoff v. Director of Prisons (90 Phil. 70 [1951]), this Court held that the principles set forth in the Declaration are part of the law of the land. See also Government of Hongkong Special Administrative Region v. Olalia, Jr. and Muoz, G.R. No. 153675, 19 April 2007, 521 SCRA 470.

14 Ratified by the Philippines on 23 October 1986.

15Section 5(5), Article VIII of the Constitution provides: Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of Procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.