You are on page 1of 8

1

5. ID.; PRESIDENT'S POWER UNDER THE 1987 CONSTITUTION; EXTENT AND


LIMITATION. Consideration of tradition and the development of presidential power under
EN BANC the different constitutions are essential for a complete understanding of the extent of and
limitations to the President's powers under the 1987 Constitution. Although the 1987
Constitution imposes limitations on the exercise of specific powers of the President, it
[G.R. No. 88211. September 15, 1989.] maintains intact what is traditionally considered as within the scope of "executive power."
Corollarily, the powers of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive power is more than the sum
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND of specific powers so enumerated.
R. MARCOS, JR., IRENE M. ARANETA, IMEE M. MANOTOC,
TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO 6. ID.; PRESIDENT'S RESIDUAL POWER TO PROTECT THE GENERAL WELFARE OF
E. MARCOS, NICANOR YIGUEZ and PHILIPPINE THE PEOPLE; THE POWERS INVOLVED. The power involved is the President's
CONSTITUTION ASSOCIATION (PHILCONSA), represented by residual power to protect the general welfare of the people. It is founded on the duty of the
its President, CONRADO F. President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the
ESTRELLA, petitioners, vs. HONORABLE RAUL MANGLAPUS, power of the President but also his duty to do anything not forbidden by the Constitution or
CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM the laws that the needs of the nation demand. The President is not only clothed with
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, extraordinary powers in times of emergency, but is also tasked with attending to the day-to-
in their capacity as Secretary of Foreign Affairs, Executive day problems of maintaining peace and order and ensuring domestic tranquillity in times when
Secretary, Secretary of Justice, Immigration Commissioner, no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling
Secretary of National Defense and Chief of Staff, presidential duties in times of peace is not in any way diminished by the relative want of an
respectively, respondents. emergency specified in the commander-in-chief provision.

7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; REQUEST TO BE ALLOWED


TO RETURN TO THE PHILIPPINES; TO BE TREATED AS ADDRESSED TO THE
SYLLABUS
RESIDUAL UNSTATED POWERS OF THE PRESIDENT. The request or demand of the
Marcoses to be allowed to return to the Philippines cannot be considered in the light solely of
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RETURN TO ONE'S the constitutional provisions guaranteeing liberty of abode and the right to travel, subject to
COUNTRY, NOT AMONG THE RIGHTS GUARANTEED. The right to return to one's certain exceptions, or of case law which clearly never contemplated situations even remotely
country is not among the rights specifically guaranteed in the Bill of Rights, which treats only similar to the present one. It must be treated as a matter that is appropriately addressed to those
of the liberty of abode and the right to travel. residual unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In that context,
2. ID.; ID.; RIGHT TO RETURN CONSIDERED AS A GENERALLY ACCEPTED such request or demand should submit to the exercise of a broader discretion on the part of the
PRINCIPLE OF INTERNATIONAL LAW. It is the court's well-considered view that the President to determine whether it must be granted or denied.
right to return may be considered, as a generally accepted principle of international law and
under our Constitution,is part of the law of the land [Art. II Sec. 2 of the Constitution.] 8. ID.; JUDICIAL REVIEW; POWER TO DETERMINE GRAVE ABUSE OF
DISCRETION OR EXCESS OF JURISDICTION ON ANY BRANCH OR
3. ID.; ID.; RIGHT TO RETURN, DISTINCT AND SEPARATE FROM THE RIGHT TO INSTRUMENTALITY OF THE GOVERNMENT. The present Constitution limits resort
TRAVEL. It is distinct and separate from the right to travel and enjoys a different to the political question doctrine and broadens the scope of judicial inquiry into areas which
protection under the International Covenant of Civil and Political Rights, i.e., against being the Court, under previous constitutions, would have normally left to the political departments
"arbitrarily deprived" thereof [Art. 12 (4).] to decide. The deliberations of the Constitutional Commission cited by petitioners show that
the framers intended to widen the scope of judicial review but they did not intend courts of
4. ID.; ALLOCATION OF POWER IN THE THREE BRANCHES OF GOVERNMENT A justice to settle all actual controversies before them. When political questions are involved, the
GRANT OF ALL THE POWERS INHERENT THERETO. As the Supreme Court Constitution limits the determination to whether or not there has been a grave abuse of
in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power discretion amounting to lack or excess of jurisdiction on the part of the official whose action is
means a grant of all legislative power; and a grant of the judicial power means a grant of all being questioned.
the judicial power which may be exercised under the government." [At 631-632.] If this can be
said of the legislative power which is exercised by two chambers with a combined 9. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL OF REQUEST TO BE
membership of more than two hundred members and of the judicial power which is vested in a ALLOWED TO RETURN TO THE PHILIPPINES, NOT A GRAVE ABUSE OF
hierarchy of courts, it can equally be said of the executive power which is vested in one DISCRETION. We find that from the pleadings filed by the parties, from their oral
official the President. arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the
2

Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and be impaired except in the interest of national security, public safety, or public health, as may
respondents were represented, there exist factual bases for the President's decision. The be provided by law.
documented history of the efforts of the Marcoses and their followers to destabilize the
country, as earlier narrated in this ponencia bolsters the conclusion that the return of the 6. ID.; POLITICAL QUESTION DOCTRINE NO LONGER UTILIZED BY THE COURT;
Marcoses at this time would only exacerbate and intensify the violence directed against the COURT COMPELLED TO DECIDE THE CASE UNDER THE 1987 CONSTITUTION.
State and instigate more chaos. With these before her, the President cannot be said to have The framers of the Constitution believed that the free use of the political question doctrine
acted arbitrarily and capriciously and whimsically in determining that the return of the allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
Marcoses poses a serious threat to the national interest and welfare and in prohibiting their complexity of issues, momentousness of consequences or a fear that it was extravagantly
return. extending judicial power in the cases where it refused to examine and strike down an exercise
of authoritarian power. Parenthetically, at least two of the respondents and their counsel were
GUTIERREZ, JR., J.: dissenting: among the most vigorous critics of Mr. Marcos (the main petitioner) and his use of the
political question doctrine. The Constitution was accordingly amended. We are now precluded
1. CONSTITUTIONAL LAW; CONSTITUTION; ITS PROVISIONS PROTECT ALL MEN, by its mandate from refusing to invalidate a political use of power through a convenient resort
AT ALL TIMES AND UNDER ALL CIRCUMSTANCES. "The Constitution . . . is a law to the political question doctrine. We are compelled to decide what would have been non-
for rulers and people, equally in war and in peace, and covers with the shield of its protection justiceable under our decisions interpreting earlier fundamental charters.
all classes of men, at all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than that any of its provisions
can be suspended during any of the great exigencies of government." (Ex Parte Milligan, 4
Wall. 2; 18 L. Ed. 281 [1866]). 7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL A GRAVE ABUSE OF
DISCRETION. We do not have to look into the factual bases of the banMarcos policy in
2. ID.; POLITICAL QUESTIONS; OUTSIDE THE SCOPE OF JUDICIAL order to ascertain whether or not the respondents acted with grave abuse of discretion. Nor are
DETERMINATION. It is a well-settled doctrine that political questions are not within the we forced to fall back upon judicial notice of the implications of a Marcos return to his home
province of the judiciary, except to the extent that power to deal with such questions has been to buttress a conclusion. In the first place, there has never been a pronouncement by the
conferred on the courts by express constitutional or statutory provisions. President that a clear and present danger to national security and public safety will arise if
Mr. Marcos and his family are allowed to return to the Philippines. It was only after the
3. ID.; ID.; CONSTRUED. It is not so easy, however, to define the phrase political present petition was filed that the alleged danger to national security and public safety
question, nor to determine what matters fall within its scope. It is frequently used to designate conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself limits
all questions that lie outside the scope of the judicial power. More properly, however, it means the reason for the ban Marcos policy to (1) national welfare and interest and (2) the continuing
those questions which, under the constitution, are to be decided by the people in their need to preserve the gains achieved in terms of recovery and stability. Neither ground satisfies
sovereign capacity, or in regard to which full discretionary authority has been delegated to the the criteria of national security and public safety. The "confluence theory" of the Solicitor
legislative or executive branch of the government. General or what the majority calls "catalytic effect," which alone sustains the claim of danger
to national security is fraught with perilous implications. Any difficult problem or any
4. ID.; ID.; CONSTITUTIONAL POWER VESTED EXCLUSIVELY IN THE PRESIDENT
troublesome person can be substituted for the Marcos threat as the catalysing factor. It was
OR CONGRESS, BEYOND PROHIBITION OR EXAMINATION BY THE COURT
precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr.,
REQUIRED FOR ITS EXISTENCE. For a political question to exist, there must be in the
Jovito Salonga, and scores of other "undesirables" and "threats to national security" during
Constitution a power vested exclusively in the President or Congress, the exercise of which
that unfortunate period which led the framers of our present Constitution not only to re-enact
the court should not examine or prohibit. A claim of plenary or inherent power against a civil
but to strengthen the declaration of this right.
right which claim is not found in a specific provision is dangerous. Neither should we validate
a roving commission allowing public officials to strike where they please and to override
everything which to them represents evil. The entire Government is bound by the rule of law.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has
been enacted specifying the circumstances when the right may be impaired in the interest of DECISION
national security or public safety. The power is in Congress, not the Executive.

5. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; RIGHT TO TRAVEL


INCLUDES RIGHT TO TRAVEL OUT OF OR BACK TO THE PHILIPPINES. Section 6 CORTES, J p:
of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not Before the Court is a controversy of grave national importance. While ostensibly only legal
by an executive officer. Not even by the President. Section 6 further provides that the right to issues are involved, the Court's decision in this case would undeniably have a profound effect
travel, and this obviously includes the right to travel out of or back into the Philippines, cannot on the political, economic and other aspects of national life.
3

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via The issue is basically one of power: whether or not, in the exercise of the powers granted
the non-violent "people power" revolution and forced into exile. In his stead, Corazon C. by the Constitution, the President may prohibit the Marcoses from returning to the Philippines.
Aquino was declared President of the Republic under a revolutionary government. Her
ascension to and consolidation of power have not been unchallenged. The failed Manila Hotel According to the petitioners, the resolution of the case would depend on the resolution of the
coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel following issues:
7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the
1. Does the President have the power to bar the return of former
unsuccessful plot of the Marcos spouses to surreptitiously return from Hawaii with
President Marcos and his family to the Philippines?
mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January
30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar a. Is this a political question?
and to the fanaticism and blind loyalty of their followers in the country. The ratification of
the 1987 Constitution enshrined the victory of "people power" and also clearly reinforced the 2. Assuming that the President has the power to bar former
constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody President Marcos and his family from returning to the Philippines, in
challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major the interest of "national security, public safety or public health"
players in the February Revolution, led a failed coup that left scores of people, both
combatants and civilians, dead. There were several other armed sorties of lesser significance, a. Has the President made a finding that the return
but the message they conveyed was the same a split in the ranks of the military of former President Marcos and his family to the Philippines
establishment that threatened civilian supremacy over the military and brought to the fore the is a clear and present danger to national security, public safety
realization that civilian government could be at the mercy of a fractious military. or public health?

But the armed threats to the Government were not only found in misguided elements in the b. Assuming that she has made that finding,
military establishment and among rabid followers of Mr.Marcos. There were also the (1) Have the requirements of due
communist insurgency and the secessionist movement in Mindanao which gained ground process been complied with in making such
during the rule of Mr. Marcos, to the extent that the communists have set up a parallel finding?
government of their own in the areas they effectively control while the separatists are virtually
free to move about in armed bands. There has been no let up in these groups' determination to (2) Has there been prior notice to
wrest power from the government. Not only through resort to arms but also through the use of petitioners?
propaganda have they been successful in creating chaos and destabilizing the country. (3) Has there been a hearing?
Nor are the woes of the Republic purely political. The accumulated foreign debt and the (4) Assuming that notice and
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated. hearing may be dispensed with, has the
The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to President's decision, including the grounds
show concrete results in alleviating the poverty of the masses, while the recovery of the ill- upon which it was based, been made known
gotten wealth of the Marcoses has remained elusive. to petitioners so that they may controvert
the same?
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philippines to die.
But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when c. Is the President's determination that the return of
the stability of government is threatened from various directions and the economy is just former President Marcos and his family to the Philippines is a
beginning to rise and move forward, has stood firmly on the decision to bar the return of clear and present danger to national security, public safety, or
Mr. Marcos and his family. public health a political question?

The Petition d. Assuming that the Court may inquire as to


whether the return of former President Marcos and his family
This case is unique. It should not create a precedent, for the case of a dictator forced out of is a clear and present danger to national security, public
office and into exile after causing twenty years of political, economic and social havoc in the safety, or public health, have respondents established such
country and who within the short space of three years seeks to return, is in a class by itself. fact?
This petition for mandamus and prohibition asks the Court to order the respondents to issue 3. Have the respondents, therefore, in implementing the President's
travel documents to Mr. Marcos and the immediate members of his family and to enjoin the decision to bar the return of former President Marcos and his family,
implementation of the President's decision to bar their return to the Philippines. acted and would be acting without jurisdiction, or in excess of
The Issue jurisdiction, or with grave abuse of discretion, in performing any act
which would effectively bar the return of former President Marcos and
4

his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; 4) No one shall be arbitrarily deprived of the right to enter his own
Rollo, pp. 234-236.] country.

The case for petitioners is founded on the assertion that the right of the Marcoses to return to On the other hand, the respondents' principal argument is that the issue in this case involves a
the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit: political question which is non-justiciable. According to the Solicitor General:

Section 1. No person shall be deprived of life, liberty, or property As petitioners couch it, the question involved is simply whether or not
without due process of law, nor shall any person be denied the equal petitioners Ferdinand E. Marcos and his family have the right to travel
protection of the laws. and liberty of abode. Petitioners invoke these constitutional rights in
vacuo without reference to attendant circumstances.
xxx xxx xxx
Respondents submit that in its proper formulation, the issue is whether
Section 6. The liberty of abode and of changing the same within the or not petitioners Ferdinand E. Marcos and family have the right to
limits prescribed by law shall not be impaired except upon lawful order return to the Philippines and reside here at this time in the face of the
of the court. Neither shall the right to travel be impaired except in the determination by the President that such return and residence will
interest of national security, public safety, or public health, as may be endanger national security and public safety.
provided by law.
It may be conceded that as formulated by petitioners, the question is not
The petitioners contend that the President is without power to impair the liberty of abode of a political question as it involves merely a determination of what the
the Marcoses because only a court may do so "within the limits prescribed by law." Nor may law provides on the matter and application thereof to petitioners
the President impair their right to travel because no law has authorized her to do so. They Ferdinand E. Marcos and family. But when the question is whether the
advance the view that before the right to travel may be impaired by any authority or agency of two rights claimed by petitioners Ferdinand E. Marcos and family
the government, there must be legislation to that effect. llcd impinge on or collide with the more primordial and transcendental right
of the State to security and safety of its nationals, the question becomes
The petitioners further assert that under international law, the right of Mr. Marcos and his
political and this Honorable Court can not consider it. cdrep
family to return to the Philippines is guaranteed.
There are thus gradations to the question, to wit:
The Universal Declaration of Human Rights provides:
Do petitioners Ferdinand E. Marcos and family have the right to return
Article 13. (1) Everyone has the right to freedom of movement and
to the Philippines and reestablish their residence here? This is clearly a
residence within the borders of each state.
justiciable question which this Honorable Court can decide.
(2) Everyone has the right to leave any country, including his own, and
Do petitioners Ferdinand E. Marcos and family have their right to return
to return to his country.
to the Philippines and reestablish their residence here even if their
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by return and residence here will endanger national security and public
the Philippines, provides: safety? This is still a justiciable question which this Honorable Court
can decide.
Article 12
Is there danger to national security and public safety if petitioners
1) Everyone lawfully within the territory of a State shall, within that Ferdinand E. Marcos and family shall return to the Philippines and
territory, have the right to liberty of movement and freedom to choose establish their residence here? This is now a political question which
his residence. this Honorable Court can not decide for it falls within the exclusive
2) Everyone shall be free to leave any country, including his own. authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
3) The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect Respondents argue for the primacy of the right of the State to national security over individual
national security, public order (order public), public health or morals or rights. In support thereof, they cite Article II of the Constitution, to wit:
the rights and freedoms of others, and are consistent with the other Section 4. The prime duty of the Government is to serve and protect the
rights recognized in the present Covenant. people. The Government may call upon the people to defend the State
and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military, or civil service.
5

Section 5. The maintenance of peace and order, the protection of life, different protection under the International Covenant of Civil and Political Rights, i.e., against
liberty, and property, and the promotion of the general welfare are being "arbitrarily deprived" thereof [Art. 12 (4).]
essential for the enjoyment by all the people of the blessings of
democracy. Thus, the rulings in the cases of Kent and Haig, which refer to the issuance of passports for the
purpose of effectively exercising the right to travel are not determinative of this case and are
Respondents also point out that the decision to ban Mr. Marcos and his family from returning only tangentially material insofar as they relate to a conflict between executive action and the
to the Philippines for reasons of national security and public safety has international exercise of a protected right. The issue before the Court is novel and without precedent in
precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza, Jr. of Nicaragua, Philippine, and even in American jurisprudence. Cdpr
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 Consequently, resolution by the Court of the well-debated issue of whether or not there can be
deposed dictators whose return to their homelands was prevented by their governments. [See limitations on the right to travel in the absence of legislation to that effect is rendered
Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for unnecessary. An appropriate case for its resolution will have to be awaited.
Respondents, pp. 26-32; Rollo, pp. 314-319.]
Having clarified the substance of the legal issue, we find now a need to explain the
The parties are in agreement that the underlying issue is one of the scope of presidential power methodology for its resolution. Our resolution of the issue will involve a two-tiered approach.
and its limits. We, however, view this issue in a different light. Although we give due weight We shall first resolve whether or not the President has the power under the Constitution, to bar
to the parties' formulation of the issues, we are not bound by its narrow confines in arriving at the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the
a solution to the controversy. express power of the Court under the Constitution in Article VIII, Section 1, whether or not
the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of
At the outset, we must state that it would not do to view the case within the confines of the jurisdiction when she determined that the return of the Marcoses to the Philippines poses a
right to travel and the import of the decisions of the U.S. Supreme Court in the leading cases serious threat to national interest and welfare and decided to bar their return.
of Kent 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, 69 L Ed. 2d 640) which affirmed the right to travel and recognized Executive Power
exceptions to the exercise thereof, respectively. The 1987 Constitution has fully restored the separation of powers of the three great branches
of government. To recall the words of Justice Laurel in Angarav. Electoral Commission [63
It must be emphasized that the individual right involved is not the right to travel from the
Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and in bold lines,
Philippines to other countries or within the Philippines. These are what the right to travel
allotment of power to the executive, the legislative and the judicial departments of the
would normally connote. Essentially, the right involved is the right to return to one's country,
government." [At 157.] Thus, the 1987 Constitution explicitly provides that "[t]he legislative
a totally distinct right under international law, independent from although related to the right
power shall be vested in the Congress of the Philippines" [Art. VI, Sec. 1], "[t]he executive
to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on
power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and "[t]he judicial
Civil and Political Rights treat the right to freedom of movement and abode within the
power shall be vested in one Supreme Court and in such lower courts as may be established by
territory of a state, the right to leave a country, and the right to enter one's country as separate
law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual
and distinct rights. The Declaration speaks of the "right to freedom of movement and
division [Angara v. Electoral Commission, supra] but also confer plenary legislative,
residence within the borders of each state" [Art. 13(1)] separately from the "right to leave any
executive and judicial powers subject only to limitations provided in the Constitution. For as
country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the
the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the
Covenant guarantees the "right to liberty of movement and freedom to choose his residence"
legislative power means a grant of all legislative power; and a grant of the judicial power
[Art. 12(1)] and the right to "be free to leave any country, including his own." [Art. 12(2)]
means a grant of all the judicial power which may be exercised under the government." [At
which rights may be restricted by such laws as "are necessary to protect national security,
631-632.] If this can be said of the legislative power which is exercised by two chambers with
public order, public health or morals or the separate rights and freedoms of others." [Art.
a combined membership of more than two hundred members and of the judicial power which
12(3)] as distinguished from the "right to enter his own country" of which one cannot be
is vested in a hierarchy of courts, it can equally be said of the executive power which is vested
"arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to construe the
in one official the President.
limitations to the right to return to one's country in the same context as those pertaining to the
liberty of abode and the right to travel. As stated above, the Constitution provides that "[t]he executive power shall be vested in the
President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by
The right to return to one's country is not among the rights specifically guaranteed in the Bill
"executive power" although in the same article it touches on the exercise of certain powers by
of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-
the President, i.e., the power of control over all executive departments, bureaus and offices,
considered view that the right to return may be considered, as a generally accepted principle of
the power to execute the laws, the appointing power, the powers under the commander-in-
international law and, under our Constitution,is part of the law of the land [Art. II, Sec. 2
chief clause, the power to grant reprieves, commutations and pardons, the power to grant
of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a
amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans,
6

the power to enter into treaties or international agreements, the power to submit the budget to We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather,
Congress, and the power to address Congress [Art. VII, Secs. 14-23]. LLphil that the consideration of tradition and the development of presidential power under the
different constitutions are essential for a complete understanding of the extent of and
limitations to the President's powers under the 1987 Constitution. The 1935
Constitution created a strong President with explicitly broader powers than the U.S. President.
The inevitable question then arises: by enumerating certain powers of the President did the
The 1973 Constitutionattempted to modify the system of government into the parliamentary
framers of the Constitution intend that the President shall exercise those specific powers and
type, with the President as a mere figurehead, but through numerous amendments, the
no other? Are these enumerated powers the breadth and scope of "executive power"?
President became even more powerful, to the point that he was also the de facto Legislature.
Petitioners advance the view that the President's powers are limited to those specifically
The 1987 Constitution, however, brought back the presidential system of government and
enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated
restored the separation of legislative, executive and judicial powers by their actual distribution
powers, and what is not enumerated is impliedly denied to her. Inclusio unius est exclusio
among three distinct branches of government with provision for checks and balances. LexLib
alterius." [Memorandum for Petitioners, p. 4; Rollo p. 233.] This argument brings to mind the
institution of the U. S. Presidency after which ours is legally patterned. ** 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
Corwin, in his monumental volume on the President of the United States grappled with the
inhere in such positions pertain to the office unless the Constitution itself withholds it.
same problem. He said:
Furthermore, the Constitution itself provides that the execution of the laws is only one of the
Article II is the most loosely drawn chapter of the Constitution. To powers of the President. It also grants the President other powers that do not involve the
those who think that a constitution ought to settle everything beforehand execution of any provision of law, e.g., his power over the country's foreign relations.
it should be a nightmare; by the same token, to those who think that
On these premises, we hold the view that although the 1987 Constitution imposes limitations
constitution makers ought to leave considerable leeway for the future
on the exercise of specific powers of the President, it maintains intact what is traditionally
play of political forces, it should be a vision realized.
considered as within the scope of "executive power." Corollarily, the powers of the President
We encounter this characteristic of Article II in its opening words: "The cannot be said to be limited only to the specific powers enumerated in the Constitution. In
executive power shall be vested in a President of the United States of other words, executive power is more than the sum of specific powers so enumerated.
America." . . . [The President: Office and Powers, 1787-1957, pp. 3-4.]
It has been advanced that whatever power inherent in the government that is neither legislative
Reviewing how the powers of the U.S. President were exercised by the different persons who nor judicial has to be executive. Thus, in the landmark decision of Springer v. Government of
held the office from Washington to the early 1900's, and the swing from the presidency by the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-
commission to Lincoln's dictatorship, he concluded that "what the presidency is at any General of the Philippines and the Legislature may vote the shares of stock held by the
particular moment depends in important measure on who is President." [At 30.] Government to elect directors in the National Coal Company and the Philippine National
Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:
This view is shared by Schlesinger, who wrote in The Imperial Presidency:
. . . Here the members of the legislature who constitute a majority of the
For the American Presidency was a peculiarly personal institution. It "board" and "committee" respectively, are not charged with the
remained, of course, an agency of government subject to unvarying performance of any legislative functions or with the doing of anything
demands and duties no matter who was President. But, more than most which is in aid of performance of any such functions by the legislature.
agencies of government, it changed shape, intensity and ethos according Putting aside for the moment the question whether the duties devolved
to the man in charge. Each President's distinctive temperament and upon these members are vested by the Organic Act in the Governor-
character, his values, standards, style, his habits, expectations, General, it is clear that they are not legislative in character, and still
idiosyncrasies, compulsions, phobias recast the White House and more clear that they are not judicial. The fact that they do not fall within
pervaded the entire government. The executive branch, said Clark the authority of either of these two constitutes logical ground for
Clifford, was a chameleon, taking its color from the character and concluding that they do fall within that of the remaining one among
personality of the President. The thrust of the office, its impact on the which the powers of government are divided . . . [At 202-203; emphasis
constitutional order, therefore altered from President to President. supplied.]
Above all, the way each President understood it as his personal
obligation to inform and involve the Congress, to earn and hold the We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent
confidence of the electorate and to render an accounting to the nation we find reinforcement for the view that it would indeed be a folly to construe the powers of a
and posterity determined whether he strengthened or weakened the branch of government to embrace only what are specifically mentioned in the Constitution:
constitutional order. [At 212-213.]
The great ordinances of the Constitution do not establish and divide
fields of black and white. Even the more specific of them are found to
7

terminate in a penumbra shading gradually from one extreme to the the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne
other. . . . by the President's duty to preserve and defend the Constitution. It also may be viewed as a
power implicit in the President's duty to take care that the laws are faithfully executed
xxx xxx xxx [see Hyman, The American President, where the author advances the view that an allowance
of discretionary power is unavoidable in any government and is best lodged in the President].
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were it More particularly, this case calls for the exercise of the President's powers as protector of the
ever so desirable to do so, which I am far from believing that it is, or peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is
that the Constitution requires.[At 210-211.] not limited merely to exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence. The President is not only
The Power Involved clothed with extraordinary powers in times of emergency, but is also tasked with attending to
The Constitution declares among the guiding principles that "[t]he prime duty of the the day-to-day problems of maintaining peace and order and ensuring domestic tranquillity in
Government is to serve and protect the people" and that "[t]he maintenance of peace and times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law,
order, the protection of life, liberty, and property, and the promotion of the general welfare are in fulfilling presidential duties in times of peace is not in any way diminished by the relative
essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4 want of an emergency specified in the commander-in-chief provision. For in making the
and 5.] President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in-Chief powers short of the calling of the
Admittedly, service and protection of the people, the maintenance of peace and order, the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial
protection of life, liberty and property, and the promotion of the general welfare are essentially law, in order to keep the peace, and maintain public order and security.
ideals to guide governmental action. But such does not mean that they are empty words. Thus,
in the exercise of presidential functions, in drawing a plan of government, and in directing That the President has the power under the Constitution to bar the Marcoses from returning
implementing action for these plans, or from another point of view, in making any decision as has been recognized by members of the Legislature, and is manifested by the Resolution
President of the Republic, the President has to consider these principles, among other things, proposed in the House of Representatives and signed by 103 of its members urging the
and adhere to them. prcd President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for
true national reconciliation and as irrevocable proof of our collective adherence to
Faced with the problem of whether or not the time is right to allow the Marcoses to return to uncompromising respect for human rights under the Constitution and our laws." [House
the Philippines, the President is, under the Constitution, constrained to consider these basic Resolution No. 1342, Rollo, p. 321.] The Resolution does not question the President's power
principles in arriving at a decision. More than that, having sworn to defend and uphold the to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense
Constitution, the President has the obligation under the Constitution to protect the people, of compassion to allow a man to come home to die in his country.
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the What we are saying in effect is that the request or demand of the Marcoses to be allowed to
people have surrendered their sovereign powers to the State for the common good. Hence, lest return to the Philippines cannot be considered in the light solely of the constitutional
the officers of the Government exercising the powers delegated by the people forget and the provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions,
servants of the people become rulers, the Constitution reminds everyone that "[s]overeignty or of case law which clearly never contemplated situations even remotely similar to the
resides in the people and all government authority emanates from them." [Art. II, Sec. 1.] present one. It must be treated as a matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and correlative to the paramount duty
The resolution of the problem is made difficult because the persons who seek to return to the residing in that office to safeguard and protect general welfare. In that context, such request or
country are the deposed dictator and his family at whose door the travails of the country are demand should submit to the exercise of a broader discretion on the part of the President to
laid and from whom billions of dollars believed to be ill-gotten wealth are sought to be determine whether it must be granted or denied. llcd
recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For
the exercise of even the preferred freedoms of speech and of expression, although couched in The Extent of Review
absolute terms, admits of limits and must be adjusted to the requirements of equally important Under the Constitution, judicial power includes the duty to determine whether or not there has
public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988]. been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." [Art. VIII, Sec. 1.] Given this wording, we
To the President, the problem is one of balancing the general welfare and the common good
cannot agree with the Solicitor General that the issue constitutes a political question which is
against the exercise of rights of certain individuals. The power involved is the President's
beyond the jurisdiction of the Court to decide.
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the 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
8

The present Constitution limits resort to the political question doctrine and broadens the scope National Security Adviser, wherein petitioners and respondents were represented, there exist factual bases
of judicial inquiry into areas which the Court, under previous constitutions, would have for the President's decision.
normally left to the political departments to decide. But nonetheless there remain issues The Court cannot close its eyes to present realities and pretend that the country is not besieged from
beyond the Court's jurisdiction the determination of which is exclusively for the President, for within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist
Congress or for the people themselves through a plebiscite or referendum. We cannot, for conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and
example, question the President's recognition of a foreign government, no matter how civilian officials, to mention only a few. The documented history of the efforts of the Marcoses and their
premature or improvident such action may appear. We cannot set aside a presidential pardon followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the
though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we return of the Marcoses at this time would only exacerbate and intensify the violence directed against the
amend the Constitution under the guise of resolving a dispute brought before us because the State and instigate more chaos.
power is reserved to the people. As divergent and discordant forces, the enemies of the State may be contained. The military establishment
has given assurances that it could handle the threats posed by particular groups. But it is the catalytic
There is nothing in the case before us that precludes our determination thereof on the political effect of the return of the Marcoses that may prove to be the proverbial final straw that would break the
question doctrine. The deliberations of the Constitutional Commission cited by petitioners camel's back.
show that the framers intended to widen the scope of judicial review but they did not intend
courts of justice to settle all actual controversies before them. When political questions are With these before her, the President cannot be said to have acted arbitrarily and capriciously and
involved, the Constitution limits the determination to whether or not there has been a grave whimsically in determining that the return of the Marcoses poses a serious threat to the national interest
abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose and welfare and in prohibiting their return.
action is being questioned. If grave abuse is not established, the Court will not substitute its It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of
judgment for that of the official concerned and decide a matter which by its nature or by law is violence against the State, that would be the time for the President to step in and exercise the commander-
for the latter alone to decide. In this light, it would appear clear that the second paragraph of in-chief powers granted her by the Constitution to suppress or stamp out such violence. The State, acting
Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically through the Government, is not precluded from taking pre-emptive action against threats to its existence if,
empowers the courts to determine whether or not there has been a grave abuse of discretion on though still nascent, they are perceived as apt to become serious and direct. Protection of the people is the
the part of any branch or instrumentality of the government, incorporates in the fundamental essence of the duty of government. The preservation of the State the fruition of the people's sovereignty
law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 448] is an obligation in the highest order. The President, sworn to preserve and defend the Constitution
and to see the faithful execution the laws, cannot shirk from that responsibility. LLjur
that:
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships
Article VII of the [1935] Constitution vests in the Executive the power brought about by the plunder of the economy attributed to the Marcoses and their close associates and
to suspend the privilege of the writ of habeas corpus under specified relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the
conditions. Pursuant to the principle of separation of powers underlying Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth
our system of government, the Executive is supreme within his own stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing
sphere. However, the separation of powers, under the Constitution, is burden imposed on the economy by the excessive foreign borrowing during the Marcosregime, which
not absolute. What is more, it goes hand in hand with the system of stifles and stagnates development and is one of the root causes of widespread poverty and all its attendant
checks and balances, under which the Executive is supreme, as regards ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit
of judicial notice.
the suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial Department,
which, in this respect, is, in turn, constitutionally supreme. The President has determined that the destabilization caused by the return of the Marcoses would wipe
away the gains achieved during the past few years and lead to total economic collapse. Given what is
In the exercise of such authority, the function of the Court is merely to within our individual and common knowledge of the state of the economy, we cannot argue with that
check not to supplant the Executive, or to ascertain merely determination.
whether he has gone beyond the constitutional limits of his jurisdiction, WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with
not to exercise the power vested in him or to determine the wisdom of grave abuse of discretion in determining that the return of former President Marcos and his family at the
his act .. [At 479-480.]. 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 hereby DISMISSED.
Accordingly, the question for the Court to determine is whether or not there exist factual bases
for the President to conclude that it was in the national interest to bar the return of the SO ORDERED.
Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has acted, or
acts, arbitrarily or that 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 revealed
during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the