88211 marcos v manglapus.pdf

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA,IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANORYIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by itsPresident, CONRADO F. ESTRELLA, petitioners,vs.HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSORSANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs,Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of NationalDefense and Chief of Staff, respectively, respondents.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only legal issuesare involved, the Court's decision in this case would undeniably have a profound effect on thepolitical, economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via thenon-violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino wasdeclared President of the Republic under a revolutionary government. Her ascension to andconsilidation of power have not been unchallenged. The failed Manila Hotel coup in 1986 led bypolitical leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led byCol. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spousesto surreptitiously return from Hawii with mercenaries aboard an aircraft chartered by a Lebanesearms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of the

Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their followers inthe country. The ratification of the 1987 Constitution enshrined the victory of "people power" andalso clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not,however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan,one of the major players in the February Revolution, led a failed coup that left scores of people, bothcombatants and civilians, dead. There were several other armed sorties of lesser significance, butthe message they conveyed was the same a split in the ranks of the military establishment thatthraetened civilian supremacy over military and brought to the fore the realization that civiliangovernment could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements and amongrabid followers of Mr. Marcos. There are also the communist insurgency and the seccessionistmovement in Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the

communists have set up a parallel government of their own on the areas they effectively controlwhile the separatist are virtually free to move about in armed bands. There has been no let up onthis groups' determination to wrest power from the govermnent. Not only through resort to arms butalso to through the use of propaganda have they been successful in dreating chaos anddestabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder ofthe nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts ateconomic recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results


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in alleviating the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoseshas remained elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs.Aquino, considering the dire consequences to the nation of his return at a time when the stability ofgovernment is threatened from various directions and the economy is just beginning to rise andmove forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator forced out of officeand into exile after causing twenty years of political, economic and social havoc in the country andwho within the short space of three years seeks to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the respondents to issue traveldocuments to Mr. Marcos and the immediate members of his family and to enjoin theimplementation of the President's decision to bar their return to the Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers granted by theConstitution, the President may prohibit the Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the resolution of thefollowing issues:

1. Does the President have the power to bar the return of former President Marcosand family to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos andhis family from returning to the Philippines, in the interest of "national security,public safety or public health

a. Has the President made a finding that the return of former President Marcos andhis family to the Philippines is a clear and present danger to national security, public

safety or public health?b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with inmaking such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has thePresident's decision, including the grounds upon which it was based,been made known to petitioners so that they may controvert thesame?

c. Is the President's determination that the return of former President Marcos andhis family to the Philippines is a clear and present danger to national security, publicsafety, or public health a political question?

d. Assuming that the Court may inquire as to whether the return of former PresidentMarcos and his family is a clear and present danger to national security, publicsafety, or public health, have respondents established such fact?

3. Have the respondents, therefore, in implementing the President's decision to barthe return of former President Marcos and his family, acted and would be acting


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without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, inperforming any act which would effectively bar the return of former PresidentMarcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses to return to thePhilippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without dueprocess of law, nor shall any person be denied the equal protection of the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limits prescribedby law shall not be impaired except upon lawful order of the court. Neither shall theright to travel be impaired except in the interest of national security, public safety, orpublic health, as may be provided by law.

The petitioners contend that the President is without power to impair the liberty of abode of theMarcoses because only a court may do so "within the limits prescribed by law." Nor may thePresident 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.

The petitioners further assert that under international law, the right of Mr. Marcos and his family toreturn to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence withinthe borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return tohis country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the

Philippines, provides:Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have theright 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 thosewhich 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 areconsistent with the other rights recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case involves apolitical question which is non-justiciable. According to the Solicitor General:

As petitioners couch it, the question involved is simply whether or not petitionersFerdinand E. Marcos and his family have the right to travel and liberty of abode.Petitioners invoke these constitutional rights in vacuo without reference to attendantcircumstances.

Respondents submit that in its proper formulation, the issue is whether or notpetitioners Ferdinand E. Marcos and family have the right to return to the Philippines


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and reside here at this time in the face of the determination by the President thatsuch return and residence will endanger national security and public safety.

It may be conceded that as formulated by petitioners, the question is not a politicalquestion as it involves merely a determination of what the law provides on thematter and application thereof to petitioners Ferdinand E. Marcos and family. Butwhen the question is whether the two rights claimed by petitioners Ferdinand E.Marcos and family impinge on or collide with the more primordial andtranscendental right of the State to security and safety of its nationals, the questionbecomes political and this Honorable Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to thePhilippines and reestablish their residence here? This is clearly a justiciablequestion which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to thePhilippines and reestablish their residence here even if their return and residencehere will endanger national security and public safety? this is still a justiciablequestion which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E.Marcos and family shall return to the Philippines and establish their residence here?This is now a political question which this Honorable Court can not decide for it fallswithin the exclusive authority and competence of the President of the Philippines.[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security over individualrights. In support thereof, they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the people. TheGovernment may call upon the people to defend the State and, in the fulfillmentthereof, all citizens may be required, under conditions provided by law, to renderpersonal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, andproperty, and the promotion of the general welfare are essential for the enjoyment byall the people of the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to thePhilippines for reasons of national security and public safety has international precedents. RafaelTrujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala,Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador,and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose return to theirhomelands was prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S.Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of presidential power andits limits. We, however, view this issue in a different light. Although we give due weight to theparties' formulation of the issues, we are not bound by its narrow confines in arriving at a solutionto the controversy.

At the outset, we must state that it would not do to view the case within the confines of the right totravel and the import of the decisions of the U.S. Supreme Court in the leading cases ofKent v.Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to the exercise thereof,respectively.


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It must be emphasized that the individual right involved is notthe right to travel from the Philippinesto other countries or within the Philippines. These are what the right to travel would normallyconnote. Essentially, the right involved is the right to return to one's country, a totally distinct rightunder international law, independent from although related to the right to travel. Thus, the UniversalDeclaration of Humans Rights and the International Covenant on Civil and Political Rights treat theright to freedom of movement and abode within the territory of a state, the right to leave a country,

and the right to enter one's country as separate and distinct rights. The Declaration speaks of the"right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separatelyfrom the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] Onthe other hand, the Covenant guarantees the "right to liberty of movement and freedom to choosehis residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art.12(2)] which rights may be restricted by such laws as "are necessary to protect national security,public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarilydeprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right toreturn to one's country in the same context as those pertaining to the liberty of abode and the rightto travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill ofRights, 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 internationallaw and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]However, it is distinct and separate from the right to travel and enjoys a different protection underthe International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived"thereof [Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for thepurpose of effectively exercising the right to travel are not determinative of this case and are onlytangentially material insofar as they relate to a conflict between executive action and the exercise ofa protected right. The issue before the Court is novel and without precedent in Philippine, and evenin American jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not there can be

limitations on the right to travel in the absence of legislation to that effect is rendered unnecessary.An appropriate case for its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the methodology forits resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolvewhether or not the President has the power under the Constitution, to bar the Marcoses fromreturning to the Philippines. Then, we shall determine, pursuant to the express power of the Courtunder the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or withgrave abuse of discretion amounting to lack or excess of jurisdiction when she determined that thereturn of the Marcose's to the Philippines poses a serious threat to national interest and welfare anddecided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches ofgovernment. To recall the words of Justice Laurel inAngara v. Electoral Commission [63 Phil. 139(1936)], "the Constitution has blocked but with deft strokes and in bold lines, allotment of power tothe executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress ofthe Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of thePhilippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and insuch lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not onlyestablish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also


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confer plenary legislative, executive and judicial powers subject only to limitations provided in theConstitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "agrant of the legislative power means a grant of all legislative power; and a grant of the judicialpower means a grant of all the judicial power which may be exercised under the government." [At631-632.1 If this can be said of the legislative power which is exercised by two chambers with acombined membership of more than two hundred members and of the judicial power which is

vested in a hierarchy of courts, it can equally be said of the executive power which is vested in oneofficial the President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in thePresident of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant byexecutive power" although in the same article it touches on the exercise of certain powers by thePresident, i.e., the power of control over all executive departments, bureaus and offices, the power toexecute the laws, the appointing power, the powers under the commander-in-chief clause, thepower to grant reprieves, commutations and pardons, the power to grant amnesty with theconcurrence of Congress, the power to contract or guarantee foreign loans, the power to enter intotreaties or international agreements, the power to submit the budget to Congress, and the power toaddress Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the framersof the Constitution intend that the President shall exercise those specific powers and no other? Arethese se enumerated powers the breadth and scope of "executive power"? Petitioners advance theview that the President's powers are limited to those specifically enumerated in the 1987Constitution. Thus, they assert: "The President has enumerated powers, and what is notenumerated is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum forPetitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of the U.S. Presidencyafter which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with the sameproblem. He said:

Article II is the most loosely drawn chapter of the Constitution. To those who thinkthat a constitution ought to settle everything beforehand it should be a nightmare;

by the same token, to those who think that constitution makers ought to leaveconsiderable leeway for the future play of political forces, it should be a visionrealized.

We encounter this characteristic of Article 11 in its opening words: "The executivepower shall be vested in a President of the United States of America." . . .. [ThePresident: Office and Powers, 17871957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who heldthe office from Washington to the early 1900's, and the swing from the presidency by commissionto Lincoln's dictatorship, he concluded that "what the presidency is at any particular momentdepends in important measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained ofcourse, an agency of government subject to unvarying demands and duties noremained, of cas President. But, more than most agencies of government, it changedshape, intensity and ethos according to the man in charge. Each President'sdistinctive temperament and character, his values, standards, style, his habits,expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse andpervaded the entire government. The executive branch, said Clark Clifford, was achameleon, taking its color from the character and personality of the President. The


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thrust of the office, its impact on the constitutional order, therefore altered fromPresident to President. Above all, the way each President understood it as hispersonal obligation to inform and involve the Congress, to earn and hold theconfidence of the electorate and to render an accounting to the nation and posteritydetermined whether he strengthened or weakened the constitutional order. [At 212-213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, thatthe consideration of tradition and the development of presidential power under the differentconstitutions are essential for a complete understanding of the extent of and limitations to thePresident's powers under the 1987 Constitution. The 1935 Constitution created a strong Presidentwith explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modifythe system of government into the parliamentary type, with the President as a mere figurehead, butthrough numerous amendments, the President became even more powerful, to the point that hewas also the de facto Legislature. The 1987 Constitution, however, brought back the presidentialsystem of government and restored the separation of legislative, executive and judicial powers bytheir actual distribution among three distinct branches of government with provision for checks andbalances.

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 insuch positions pertain to the office unless the Constitution itself withholds it. Furthermore, theConstitution 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 theexercise ofspecific powers of the President, it maintains intact what is traditionally considered aswithin the scope of "executive power." Corollarily, the powers of the President cannot be said to belimited only to the specific powers enumerated in the Constitution. In other words, executive poweris 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. Thus, in the landmark decision ofSpringer v. Government of thePhilippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of thePhilippines and the Legislature may vote the shares of stock held by the Government to electdirectors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court, inupholding the power of the Governor-General to do so, said:

...Here the members of the legislature who constitute a majority of the "board" and"committee" respectively, are not charged with the performance of any legislativefunctions or with the doing of anything which is in aid of performance of any suchfunctions by the legislature. Putting aside for the moment the question whether theduties devolved upon these members are vested by the Organic Act in theGovernor-General, it is clear that they are not legislative in character, and still moreclear that they are not judicial. The fact that they do not fall within the authority ofeither of these two constitutes logical ground for concluding that they do fall withinthat of the remaining one among which the powers of government are divided ....[At202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent wefind reinforcement for the view that it would indeed be a folly to construe the powers of a branch ofgovernment to embrace only what are specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of blackand white. Even the more specific of them are found to terminate in a penumbra


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shading gradually from one extreme to the other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it byveiling words we do not and cannot carry out the distinction between legislative andexecutive action with mathematical precision and divide the branches into

watertight compartments, were it ever so desirable to do so, which I am far frombelieving that it is, or that the Constitution requires. [At 210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment isto serve and protect the people" and that "[t]he maintenance of peace and order,the protection oflife, liberty, and property, and the promotion of the general welfare are essential for the enjoyment byall the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the protectionof life, liberty and property, and the promotion of the general welfare are essentially ideals to guidegovernmental action. But such does not mean that they are empty words. Thus, in the exercise ofpresidential functions, in drawing a plan of government, and in directing implementing action for

these plans, or from another point of view, in making any decision as President of the Republic, thePresident has to consider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to return to thePhilippines, the President is, under the Constitution, constrained to consider these basic principlesin arriving at a decision. More than that, having sworn to defend and uphold the Constitution, thePresident has the obligation under the Constitution to protect the people, promote their welfare andadvance the national interest. It must be borne in mind that the Constitution, aside from being anallocation of power is also a social contract whereby the people have surrendered their sovereignpowers to the State for the common good. Hence, lest the officers of the Government exercising thepowers delegated by the people forget and the servants of the people become rulers, theConstitution reminds everyone that "[s]overeignty resides in the people and all governmentauthority emanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to thecountry are the deposed dictator and his family at whose door the travails of the country are laidand from whom billions of dollars believed to be ill-gotten wealth are sought to be recovered. Theconstitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of eventhe preferred freedoms of speech and ofexpression, although couched in absolute terms, admits oflimits and must be adjusted to the requirements of equally important public interests [Zaldivar v.Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the common good againstthe exercise of rights of certain individuals. The power involved is the President's residual power toprotect the general welfare of the people. It is founded on the duty of the President, as steward ofthe people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his

duty to do anything not forbidden by the Constitution or the laws that the needs of the nationdemand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve anddefend the Constitution. It also may be viewed as a power implicit in the President's duty to takecare that the laws are faithfully executed [see Hyman, The American President, where the authoradvances the view that an allowance of discretionary power is unavoidable in any government andis best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as protector of thepeace. Rossiter The American Presidency].The power of the President to keep the peace is notlimited merely to exercising the commander-in-chief powers in times of emergency or to leading


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questioned. If grave abuse is not established, the Court will not substitute its judgment for that ofthe official concerned and decide a matter which by its nature or by law is for the latter alone todecide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of theConstitution, defining "judicial power," which specifically empowers the courts to determine whetheror not there has been a grave abuse of discretion on the part of any branch or instrumentality of thegovernment, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964,

December 11, 1971, 42 SCRA 4481 that:]Article VII of the [1935] Constitution vests in the Executive the power to suspend theprivilege of the writ of habeas corpus under specified conditions. Pursuant to theprinciple of separation of powers underlying our system of government, theExecutive is supreme within his own sphere. However, the separation of powers,under the Constitution, is not absolute. What is more, it goes hand in hand with thesystem of checks and balances, under which the Executive is supreme, as regardsthe suspension of the privilege, but only if and when he acts within the spherealloted to him by the Basic Law, and the authority to determine whether or not hehas so acted is vested in the Judicial Department, which, in this respect, is, in turn,constitutionally supreme. In the exercise of such authority, the function of the Courtis merely to check not to supplant the Executive, or to ascertain merely whether he

has gone beyond the constitutional limits of his jurisdiction, not to exercise thepower vested in him or to determine the wisdom of his act [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist factual bases forthe President to conclude that it was in the national interest to bar the return of the Marcoses to thePhilippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily orthat she has gravely abused her discretion in deciding to bar their return.

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealedduring the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and theNational Security Adviser, wherein petitioners and respondents were represented, there exist factualbases for the President's decision..

The Court cannot close its eyes to present realities and pretend that the country is not besieged

from within by a well-organized communist insurgency, a separatist movement in Mindanao,rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men,police officers and civilian officials, to mention only a few. The documented history of the efforts ofthe Marcose's and their followers to destabilize the country, as earlier narrated in this ponenciabolsters the conclusion that the return of the Marcoses at this time would only exacerbate andintensify the violence directed against the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The militaryestablishment has given assurances that it could handle the threats posed by particular groups. Butit is the catalytic effectof the return of the Marcoses that may prove to be the proverbial final strawthat would break the camel's back. With these before her, the President cannot be said to haveacted arbitrarily and capriciously and whimsically in determining that the return of the Marcosesposes a serious threat to the national interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation ofviolence against the State, that would be the time for the President to step in and exercise thecommander-in-chief powers granted her by the Constitution to suppress or stamp out suchviolence. The State, acting through the Government, is not precluded from taking pre- emptiveaction against threats to its existence if, though still nascent they are perceived as apt to becomeserious and direct. Protection of the people is the essence of the duty of government. Thepreservation of the State the fruition of the people's sovereignty is an obligation in the highest order.The President, sworn to preserve and defend the Constitution and to see the faithful execution the


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laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from thehardships brought about by the plunder of the economy attributed to the Marcoses and their closeassociates and relatives, many of whom are still here in the Philippines in a position to destabilizethe country, while the Government has barely scratched the surface, so to speak, in its efforts torecover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, Wecannot ignore the continually increasing burden imposed on the economy by the excessive foreignborrowing during the Marcos regime, which stifles and stagnates development and is one of theroot causes of widespread poverty and all its attendant ills. The resulting precarious state of oureconomy is of common knowledge and is easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the Marcoses wouldwipe away the gains achieved during the past few years and lead to total economic collapse. Givenwhat is within our individual and common knowledge of the state of the economy, we cannot arguewith that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily orwith grave abuse of discretion in determining that the return of former President Marcos and hisfamily at the present time and under present circumstances poses a serious threat to national

interest and welfare and in prohibiting their return to the Philippines, the instant petition is herebyDISMISSED.

SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, asimmering separatist movement, a restive studentry, widespread labor disputes, militant farmergroups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could

blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice HugoE. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive andwell-written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from aparticular constitutional clause or article or from an express statutory grant. Their limits are likely todepend on the imperatives of events and contemporary imponderables rather than on abstracttheories of law. History and time-honored principles of constitutional law have conceded to theExecutive Branch certain powers in times of crisis or grave and imperative national emergency.Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,""emergency." whatever they may be called, the fact is that these powers exist, as they must if the

governance function of the Executive Branch is to be carried out effectively and efficiently. It is inthis context that the power of the President to allow or disallow the Marcoses to return to thePhilippines should be viewed. By reason of its impact on national peace and order in theseadmittedly critical times, said question cannot be withdrawn from the competence of the ExecutiveBranch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear andpresent danger to public order and safety. One needs only to recall the series of destabilizingactions attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during theEDSA Revolution's aftermath to realize this. The most publicized of these offensives is the Manila


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Hotel incident which occurred barely five (5) months after the People's Power Revolution. Around10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel andLt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of ArturoTolentino as acting president of the Philippines. The public disorder and peril to life and limb of thecitizens engendered by this event subsided only upon the eventual surrender of the loyalist soldiersto the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Pointin Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldierrebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the15th Air Force Strike wing commander and his deputy hostage. Troops on board several vehiclesattempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped atHorseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced theirway through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed toconvince their incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino

Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the militaryled by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt towrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearmsand ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of thegroup members were, however, captured in Antipolo, Rizal. The same group was involved in anunsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECORto mobilize civilians from nearby provinces to act as blockading forces at different Metro Manilaareas for the projected link-up of Marcos military loyalist troops with the group of Honasan. Thepseudo "people power" movement was neutralized thru checkpoints set up by the authorities along

major road arteries where the members were arrested or forced to turn back.While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrencemilitates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'presence embolden their followers toward similar actions, but any such action would be seizedupon as an opportunity by other enemies of the State, such as the Communist Party of thePhilippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage anoffensive against the government. Certainly, the state through its executive branch has the power,nay, the responsibility and obligation, to prevent a grave and serious threat to its safety fromarising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to thePhilippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a validjustification for disallowing the requested return. I refer to the public pulse. It must be remembered

that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainlywelcomed, result of the unprecedented peoples power" revolution. Millions of our people bravedmilitary tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time,effort and money to put an end to an evidently untenable claim to power of a dictator. The removalof the Marcoses from the Philippines was a moral victory for the Filipino people; and the installationof the present administration, a realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made tosympathy, compassion and even Filipino tradition. The political and economic gains we have


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achieved during the past three years are however too valuable and precious to gamble away onpurely compassionate considerations. Neither could public peace, order and safety be sacrificed foran individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt infavor of presidential prerogative, which we do not find to have been gravely abused or arbitrarilyexercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with theshield of its protection all classes of men, at all times, and under all circumstances. No doctrineinvolving more pernicious consequences was ever invented by the wit of man than that any of itsprovisions can be suspended during any of the great exigencies of government." (Ex Parte Milligan,4 Wall. 2; 18 L. Ed. 281 [1866])

Since our days as law students, we have proclaimed the stirring words ofEx Parte Milligan asself-evident truth. But faced with a hard and delicate case, we now hesitate to qive substance totheir meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be takenaway by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee offreedom for both unloved and despised persons on one hand and the rest who are not sostigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. Weare interpreting the Constitution for only one person and constituting him into a class by himself.The Constitution is a law for all classes of men at all times. To have a person as one class byhimself smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rightsand not of power. Mr. Marcos is insensate and would not live if separated from the machines whichhave taken over the functions of his kidneys and other organs. To treat him at this point as one withfull panoply of power against whom the forces of Government should be marshalled is totallyunrealistic. The Government has the power to arrest and punish him. But does it have the power todeny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed bylaw shall not be impaired except upon lawful order of the court. Neither shall theright to travel be impaired except in the interest of national security, public safety, orpublic health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111,Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national securityand public safety which is hauntingly familiar because it was pleaded so often by petitionerFerdinand E. Marcos to justify his acts under martial law. There is, however, no showing of theexistence of a law prescribing the limits of the power to impair and the occasions for its exercise.And except for citing breaches of law and order, the more serious of which were totally unrelated toMr. Marcos and which the military was able to readily quell, the respondents have not pointed toany grave exigency which permits the use of untrammeled Governmental power in this case and theindefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond ourjurisdiction to consider. They contend that the decision to ban former President Marcos, and hisfamily on grounds of national security and public safety is vested by the Constitution in thePresident alone. The determination should not be questioned before this Court. The President's


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finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the province of thejudiciary, except to the extent that power to deal with such questions has beenconferred on the courts by express constitutional or statutory provisions. It is not soeasy, however, to define the phrase political question, nor to determine what mattersfall within its scope. It is frequently used to designate all questions that he outsidethe scope of the judicial power. More properly, however, it means those questionswhich, under the constitution, are to be decided by the people in their sovereigncapacity, or in regard to which full discretionary authority has been delegated to thelegislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means inordinary parlance, namely, a question of policy. In other words, in the language of

Corpus Juris Secundum (supra), it refers to 'those questions which, under theConstitution, are to be decided by the people in their sovereign capacity, or in regardto which full discretionary authority has been delegated to the Legislature orexecutive branch of the Government. It is concerned with issues dependent upon thewisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr.,who penned the decision of the United States Supreme Court in Baker v. Carr(369 US 186,82, S. Ct.691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carrare:

It is apparent that several formulations which vary slightly according to the settingsin which the questions arise may describe a political question, which identifies it asessentially a function of the separation of powers. Prominent on the surface of any

case held to involve a political question is found a textually demonstrableconstitutional commitment of the issue to a coordinate political department; or alack of judicially discoverable and manageable standards for resolving it; or theimpossibility of deciding without an initial policy determination of a kind clearly fornon-judicial discretion; or the impossibility of a court's undertaking independentresolution without expressing lack of the respect due coordinate branches ofgovernment; or an unusual need for unquestioning adherence to a political decisionalready made; or potentiality of embarrassment from multifarious pronouncementsby various departments on one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in thePresident or Congress, the exercise of which the court should not examine or prohibit. A claim ofplenary or inherent power against a civil right which claim is not found in a specific provision is

dangerous. Neither should we validate a roving commission allowing public officials to strike wherethey please and to override everything which to them represents evil. The entire Government isbound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests thedetermination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has beenenacted specifying the circumstances when the right may be impaired in the interest of nationalsecurity or public safety. The power is in Congress, not the Executive.


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(5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It posed a rhetorical question. Ifafter investigating conditions in the Archipelago or any part thereof, the President finds that publicsafety requires the suspension of the privilege of the writ of habeas corpus, can the judicialdepartment investigate the same facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give usa closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondentspresent.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales,Jr. v. Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whetheror not the president acted arbitrarily in suspending the writ when, in the truth wordsof Montenegro, with its very limited machinery fit] cannot be in better position [thanthe Executive Branch] to ascertain or evaluate the conditions prevailing in theArchipelago? (At p. 887). The answer is obvious. It must rely on the ExecutiveBranch which has the appropriate civil and military machinery for the facts. This wasthe method which had to be used in Lansang. This Court relied heavily on classified

information supplied by the military. Accordingly, an incongruous situation obtained.For this Court, relied on the very branch of the government whose act was inquestion to obtain the facts. And as should be expected the Executive Branchsupplied information to support its position and this Court was in no situation todisprove them. It was a case of the defendant judging the suit. After all is said anddone, the attempt by its Court to determine whether or not the President actedarbitrarily in suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude andrefrain from giving the seal of approval to the act of the Executive Branch. For it ispossible that the suspension of the writ lacks popular support because of onereason or another. But when this Court declares that the suspension is not arbitrary(because it cannot do otherwise upon the facts given to it by the Executive Branch) it

in effect participates in the decision-making process. It assumes a task which it isnot equipped to handle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be theonly basis for determining the clear and present danger to national security and public safety. Themajority of the Court has taken judicial notice of the Communist rebellion, the separatist movement,the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos forthese incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are ledby people who have always opposed him. If we use the problems of Government as excuses fordenying a person's right to come home, we will never run out of justifying reasons. These problemsor others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to

ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we forced tofall back uponjudicial notice of the implications of a Marcos return to his home to buttress aconclusion.

In the first place, there has never been a pronouncement by the President that a clear and presentdanger to national security and public safety will arise if Mr. Marcos and his family are allowed toreturn to the Philippines. It was only after the present petition was filed that the alleged danger tonational security and public safety conveniently surfaced in the respondents' pleadings. Secondly,President Aquino herself limits the reason for the ban Marcos policy to (1) national welfare andinterest and (2) the continuing need to preserve the gains achieved in terms of recovery and


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stability. (See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies thecriteria of national security and public safety. The President has been quoted as stating that thevast majority of Filipinos support her position. (The Journal, front page, January 24,1989) Wecannot validate their stance simply because it is a popular one. Supreme Court decisions do nothave to be popular as long as they follow the Constitution and the law. The President's originalposition "that it is not in the interest of the nation that Marcos be allowed to return at this time" has

not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President isreported to have stated that "considerations of the highest national good dictate that we preservethe substantial economic and political gains of the past three years" in justifying her firm refusal toallow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989)."Interest of the nation national good," and "preserving economic and political gains," cannot beequated with national security or public order. They are too generic and sweeping to serve asgrounds for the denial of a constitutional right. The Bill of Rights commands that the right to travelmay not be impaired except on the stated grounds ofnational security, public safety, or publichealth and with the added requirement that such impairment must be "as provided by law." Theconstitutional command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as itdoes on injustice, ignorance, poverty, and other aspects at under-development, the Communist

rebellion is the clearest and most present danger to national security and constitutional freedoms.Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcoshimself was forced to flee the country because of "peoples' power." Yet, there is no move to arrestand exile the leaders of student groups, teachers' organizations, pea ant and labor federations,transport workers, and government unions whose threatened mass actions would definitelyendanger national security and the stability of government. We fail to see how Mr. Marcos could bea greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hardcore loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republicshould a dying Marcos come home is too speculative and unsubstantial a ground for denying aconstitutional right. It is not shown how extremists from the right and the left who loathe each othercould find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," whichalone sustains the claim of danger to national security is fraught with perilous implications. Anydifficult problem or any troublesome person can be substituted for the Marcos threat as thecatalysing factor. The alleged confluence of NPAs, secessionists, radical elements, renegadesoldiers, etc., would still be present. Challenged by any critic or any serious problem, theGovernment can state that the situation threatens a confluence of rebel forces and proceed to rideroughshod over civil liberties in the name of national security. Today, a passport is denied.Tomorrow, a newspaper may be closed. Public assemblies may be prohibited. Human rights maybe violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga wascurtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeplyregret that the Court's decision to use the political question doctrine in a situation where it does not

apply raises all kinds of disturbing possibilities.I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, haspersonally assured the Court that a rebellion of the above combined groups will not succeed andthat the military is on top of the situation. Where then is the clear danger to national security? TheCourt has taken judicial notice of something which even the military denies. There would be severestrains on military capabilities according to General de Villa. There would be set-backs in theexpected eradication of the Communist threat. There would be other serious problems but all canbe successfully contained by the military. I must stress that no reference was made to a clear and


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present danger to national security as would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining theparameters of the right to travel and to freely choose one's abode has constrained the President tofill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrantserious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the BatasangPambansa failed or was unable to act adequately on any matter for any reason that in his judgmentrequired immediate action. When the Bill of Rights provides that a right may not be impaired exceptin the interest of national security, public safety, or public health and further requires that a lawmust provide when such specifically defined interests are prejudiced or require protection, theinaction of Congress does not give reason for the respondents to assume the grounds for itsimpairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct usfrom ruling against an unconstitutional assertion of power by Philippine officials. Let the UnitedStates apply its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of travelingwhile hooked up to machines which have taken over the functions of his heart, lungs, and kidneysmay hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing

to act on his claim to a basic right which is legally demandable and enforceable. For his own good,it might be preferable to stay where he is. But he invokes a constitutional right. We have no power todeny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would runcounter to a constitutional guarantee. Besides, the petitioners are not asking for passports andnothing else. Any travel documents or any formal lifting of the Marcos ban as would allowinternational airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do notthink we should differentiate the right to return home from the right to go abroad or to move aroundin the Philippines. If at all, the right to come home must be more preferred than any other aspect ofthe right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators

Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to nationalsecurity" during that unfortunate period which led the framers of our present Constitution not onlyto re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" Isubmit that we now have a freedom loving and humane regime. I regret that the Court's decision inthis case sets back the gains that our country has achieved in terms of human rights, especiallyhuman rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of formerdictators who were barred by their successors from returning to their respective countries. There isno showing that the countries involved have constitutions which guarantee the liberty of abode andthe freedom to travel and that despite such constitutional protections, the courts have validated the"ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeplycommitted to democratic principles and as observant of constitutional protections as President

Aquino.It is indeed regrettable that some followers of the former President are conducting a campaign tosow discord and to divide the nation. Opposition to the government no matter how odious ordisgusting is, however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Governmenthelpless to defend itself against a threat to national security? Does the President have to suspendthe privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drasticmeasures?


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Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. TheGovernment has more than ample powers under eixisting law to deal with a person whotransgresses the peace and imperils public safety. But the denial of travel papers is not one of thosepowers because the Bill of Rights says so. There is no law prescribing exile in a foreign land as thepenalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live anddie in his own country. I say this with a heavy heart but say it nonetheless. That conviction is notdiminished one whit simply because many believe Marcos to be beneath contempt and undeservingof the very liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can weresolve it. The question we must answer is whether or not, assuming that Marcos is permitted toleave Hawaii (which may depend on the action we take today), the respondents have acted withgrave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but

could not, that the petitioner's return would prejudice the security of the State.I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if thegovernment was prepared to prove the justification for opposing the herein petition, i.e. that it hadnot acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of theinformation expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General andthree representatives from the military appeared for the respondents, together with former SenatorArturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcosdead or alive would pose a threat to the national security as it had alleged. The fears expressed byits representatives were based on mere conjectures of political and economic destabilizationwithout any single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for thePresident's decision" to bar Marcos's return. That is not my recollection of the impressions of theCourt after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specificpowers granted by the Constitution, the Court is taking a great leap backward and reinstating thediscredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with theannounced policy of the Constitutional Commission, which was precisely to limitrather than expandpresidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if itwas true that the President had been granted the totality of executive power, "it is difficult to seewhy our forefathers bothered to add several specific items, including some trifling ones, . . . I cannotaccept the view that this clause is a grant in bulk of all conceivable executive power but regard it asan allocation to the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering thatMarcos is perhaps the most detested man in the entire history of our country. But we are notconcerned here with popularity and personalities. As a judge, I am not swayed by what JusticeCardozo called the "hooting throng" that may make us see things through the prisms of prejudice. Ibear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelingsaside.

The issue before us must be resolved with total objectivity, on the basis only of the established


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facts and the applicable law and not of wounds that still fester and scars that have not healed. Andnot even of fear, for fear is a phantom. That phantom did not rise when the people stood fast atEDSA against the threat of total massacre in defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professorof Constitutional Law. These principles have not changed simply because I am now on the Court ora new administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against theprohibitions of the government then, Marcos is entitled to the same right to travel and the liberty ofabode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals,including the patriot and the homesick and the prodigal son returning, and tyrants and charlatansand scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be alsocalled a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to

the Philippines may be resolved by answering two simple questions: Does he have the right toreturn to his own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the UniversalDeclaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to returnto his own country exceptonly if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all theycan rely on is sheer speculation. True, there is some danger but there is no showing as to theextent.

It is incredible that one man alone together with his family, who had been ousted from this countryby popular will, can arouse an entire country to rise in morbid sympathy for the cause he onceespoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the formerPresident should be allowed to return to our country under the conditions that he and the membersof his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos orany member of his family die, the body should not be taken out of the municipality of confinementand should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, fornational discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the

right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the PhilippineGovernment to bar such return in the interest of national security and public safety. In this context,the issue is clearly justiciable involving, as it does, colliding assertions of individual right andgovernmental power. Issues of this nature more than explain why the 1986 ConstitutionalCommission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the1987 Constitution, the new provision on the power of Judicial Review, viz:

Judicial power includes the duty of the courts of justice to settle actualcontroversies involving rights which are legally demandable and enforceable, and to


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Universal Declaration of Human Rights which provides that everyone has the right to leave anycountry, including his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2of the International Covenant on Civil and Political Rights which states that "no one shall bearbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or"arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to protect an individualagainst unexpected, irresponsible or excessive encroachment on his rights by the state based on

national traditions or a particular sense of justice which falls short of international law or standards.4

The Solicitor General maintains that because the respondents, as alter egos of the President, haveraised the argument of "national security" and "public safety," it is the duty of this Court tounquestioningly yield thereto, thus casting the controversy to the realm of a political question. I donot agree. I believe that it is one case where the human and constitutional light invoked by one partyis so specific, substantial and clear that it cannot be overshadowed, much less, nullified bysimplistic generalities; worse, the Court neglects its duty under the Constitution when it allows thetheory of political question to serve as a convenient, and yet, lame excuse for evading what, to me,is its clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly defend

the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and,at the same time, credibly denythe right of Mr. Marcos, also a Filipino, to return to the Philippines in1989. I still have not found a satisfactory answer to that question. Instead, it has become clearer bythe day that the drama today is the same drama in 1983 with the only difference that the actors arein opposite roles, which really makes one hope, in the national interest, that the mistake in 1983should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political orotherwise, the following are the cogent and decisive propositions in this case

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in thiscountry;

2. respondents have not shown any "hard evidence" or convincing proof why his

right as a Filipino to return should be denied him. All we have are generalconclusions of "national security" and "public safety" in avoidance of a specificdemandable and enforceable constitutional and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today,requires of all members of the Court, in what appears to be an extended politicalcontest, the "cold neutrality of an impartial judge." It is only thus that we fortify theindependence of this Court, with fidelity, not to any person, party or group but to theConstitution and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powersgranted by the Constitution, the President may prohibit the Marcoses from returning to thePhilippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stirtrouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment onthe Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the boundsof judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "Theright to return to one's country," pitted against "the right of travel and freedom of abode", and their


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supposed distinctions under international law, as if such distinctions, under international law intruth and in fact exist. There is only one right involved here, whether under municipal orinternational law: the light of travel, whether within one's own country, or to another, and the right toreturn thereto. The Constitution itself makes no distinctions; let then, no one make a distinction. Ubilex non distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the powerto deny a citizen his right to travel (back to the country or to another)? It is a question that, inessence, involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by lawshall not be impaired except upon lawful order of the court. Neither shall the right totravel be impaired except in the interest of national security, public safety, or publichealth, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed ofthe power, thus:

On these premises, we hold the view that although the 1987 Constitution imposeslimitations on the exercise of specific powers of the President, it maintains intact what istraditionally 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 inthe Constitution. In other words, executive power is more than the sum of specificpowers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses toreturn to the Philippines, the President is, under the Constitution, constrained to considerthese basic principles in arriving at a decision. More than that, having sworn to defendand uphold the Constitution, the President has the obligation under the Constitution toprotect the people, promote their welfare and advance the national interest. It must beborne in mind that the Constitution, aside from being an allocation of power is also asocial contract whereby the people have surrendered their sovereign powers to the Statefor the common good. Hence, lest the officers of the Government exercising the powersdelegated by the people forget and the servants of the people become rulers, theConstitution reminds everyone that "sovereignty resides in the people and allgovernment authority emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the commongood against the exercise of rights of certain individuals. The power involved is thePresident's residual power to protect the general welfare of the people. It is founded onthe duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, itis not only the power of the President but also his duty to do anything not forbidden bythe Constitution or the laws that the needs of the nation demanded [See Corwin, supra, at153]. 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 thelaws are faithfully executed [See Hyman, The American President, where the authoradvances the view that an allowance of discretionary power is unavoidable in anygovernment and is best lodged in the President]. 7

I am not persuaded.

I

First: While the Chief Executive exercises powers not found expressly in the Charter, but has themby constitutional implication* the latter must yield to the paramountcy of the Bill of Rights.


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According to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance ofthe primacy of a big of rights. Precisely a constitution exists to assure that in the discharge of thegovernmental functions, the dignity that is the birthright of every human being is duly safeguarded.To be true to its primordial aim a constitution must lay down the boundaries beyond which he'sforbidden territory for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may override the directmandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitudeof powers, as provided in the Constitution, or by sheer constitutional implication, prevail overexpress constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in thefield of public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon amere inference therefrom." 9For if it were, indeed, the intent of the Charter to create an exception,that is, by Presidential action, to the right of travel or liberty of abode and of changing the sameother than what it explicitly says already ("limits prescribed by law" 10or "upon lawful order of thecourt" 11 the Charter could have specifically declared so. As it is, the lone deterrents to the right inquestion are: (1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended athird exception, that is, by Presidential initiative, it could have so averred. It would also have madethe Constitution, as far as limits to the said right are concerned, come full circle: Limits bylegislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful orderof the court, or when necessary in the interest of national security, public safety, orpublic health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessaryin the interest of national security, public safety, or public health. 13Arguably, the provision enabledthe Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified suchpractices as "hamletting", forced relocations, or the establishment of free-fire zones. 14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power.And, as it so appears, the right may be impaired only "within the limits provided by law . 15 ThePresident is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 andforeign affairs; 17 the Bill of Rights precisely, a form of check against excesses of officialdom is, inthis case, a formidable barrier against Presidential action. (Even on matters of State security, thisConstitution prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is:Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the national security ,public safety, or public health?" What appears in the records are vehement insistences that Marcosdoes pose a threat to the national good and yet, at the same time, we have persistent claims, madeby the military top brass during the lengthy closed-door hearing on July 25, 1989, that "thisGovernment will not fall" should the former first family in exile step on Philippine soil. which iswhich?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive.The Court itself must be content that the threat is not only clear, but more so, present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19is anobligation open to no doubt. But the question, and so I ask again and again, is: From whom? If wesay "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so


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confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in theGovernment, in the comfort of its offices, and or at the helm of its key agencies. Let us not, therefore,joke ourselves of moral factors warranting the continued banishment of Marcos. Morality is the lastrefuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individualliberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises ofpossibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjecturescontradict contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's poweras protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarianrule. It also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising thecommander-in-chief powers in times of emergency or to leading the State against external and

internal threats to its existence"22

is a bigger fantasy: It not only summons the martial law decisionsof pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent withthe express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that hasperceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openlyand unabatedly criticized the dictator, his associates, and his military machinery. He would paydearly for it; he was arrested and detained, without judicial warrant or decision, for seven monthsand seven days. He was held incommunicado a greater part of the time, in the military stockade ofCamp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) andconfined for chronic asthma. The deplorable conditions of his imprisonment exacerbated hisdelicate health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial lawapparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. OnAugust 14, 1979, he was, along with former President Diosdado Macapagal, and CongressmenRogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for"inciting to sedition" and "rumor mongering " 24in the midst of the distribution ofAng DemokrasyaSa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule, published byhim and former Congressman Concordia, authored by President Macapagal and translated intoTagalog by Congressman Rogaciano Mercado. In addition, they were also all accused of libel inmore than two dozens of criminal complaints filed by the several military officers named in the"condemned" book as having violated the human rights of dissenters, and for other crimes, in the

office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them free fromhouse arrest and these political offenses. I am for Marcos' return not because I have a score tosettle with him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him'unpunished for his crimes to country and countrymen. If punishment is due, let this leadershipinflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel andmovement and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos


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his rights. It is his constitutional right, a right that can not be abridged

88211 marcos v manglapus.pdf

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