EN BANC
of the executive power which is vested in one official — the President.
[G.R. No. 88211. September 15, 1989.]
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA,
Petitioners, v. HONORABLE RAUL MANGLAPUS, CATALINO
MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO,
FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of Staff,
respectively, Respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RETURN
TO ONE’S COUNTRY, NOT AMONG THE RIGHTS GUARANTEED. — The
right to return to one’s country is not among the rights specifically guaranteed
in the Bill of Rights, which treats only of the liberty of abode and the right to
travel.
2. ID.; ID.; RIGHT TO RETURN CONSIDERED AS A GENERALLY
ACCEPTED PRINCIPLE OF INTERNATIONAL LAW. — It is the court’s well-
considered view that the right to return may be considered, as a generally
accepted principle of international law and under our Constitution, is part of
the law of the land [Art. II Sec. 2 of the Constitution.]
3. ID.; ID.; RIGHT TO RETURN, DISTINCT AND SEPARATE FROM
THE RIGHT TO TRAVEL. — It is distinct and separate from the right to travel
and enjoys a different protection under the International Covenant of Civil
and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12
(4).]
4. ID.; ALLOCATION OF POWER IN THE THREE BRANCHES OF
GOVERNMENT A GRANT OF ALL THE POWERS INHERENT THERETO.
— As the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)]
pointed out "a grant of the legislative power means a grant of all legislative
power; and a grant of the judicial power means a grant of all 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 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
5. ID.; PRESIDENT’S POWER UNDER THE 1987 CONSTITUTION;
EXTENT AND LIMITATION. — 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. Although the 1987
Constitution imposes limitations on the exercise of specific powers of the
President, it maintains intact what is traditionally considered as within the
scope of "executive power." Corollarily, the powers of the President cannot
be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of
specific powers so enumerated.
6. ID.; PRESIDENT’S RESIDUAL POWER TO PROTECT THE
GENERAL WELFARE OF THE PEOPLE; THE POWERS INVOLVED. —
The power involved is the President’s 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 the laws that the needs of the nation demand. The President
is not only clothed with extraordinary powers in times of emergency, but is
also tasked with attending to the day-to-day problems of maintaining peace
and order and ensuring domestic tranquillity in times when no foreign foe
appears on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the
relative want of an emergency specified in the commander-in-chief provision.
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 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 the
constitutional provisions guaranteeing liberty of abode and the right to travel,
subject to certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the 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 residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it must be
granted or denied.
8. ID.; JUDICIAL REVIEW; POWER TO DETERMINE GRAVE ABUSE
OF DISCRETION OR EXCESS OF JURISDICTION ON ANY BRANCH OR
1
INSTRUMENTALITY OF THE GOVERNMENT. — The present Constitution
limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under previous constitutions,
would have normally left to the political departments 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 justice to settle all actual controversies before them. When
political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is being
questioned.
9. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL OF
REQUEST TO BE ALLOWED TO RETURN TO THE PHILIPPINES, NOT A
GRAVE ABUSE OF DISCRETION. — 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 National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President’s
decision. The 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 Marcoses at this time would only
exacerbate and intensify the violence directed against the State and instigate
more chaos. With these before her, the President cannot be said to have
acted arbitrarily and capriciously and whimsically in determining that the
return of the Marcoses poses a serious threat to the national interest and
welfare and in prohibiting their return.
GUTIERREZ, JR., J.: dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; CONSTITUTION; ITS PROVISIONS
PROTECT ALL MEN, AT ALL TIMES AND UNDER ALL CIRCUMSTANCES.
— "The Constitution . . . is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection 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]).
2. ID.; POLITICAL QUESTIONS; OUTSIDE THE SCOPE OF JUDICIAL
DETERMINATION. — It is a well-settled doctrine that political questions are
not within the province of the judiciary, except to the extent that power to deal
with such questions has been conferred on the courts by express
constitutional or statutory provisions.
3. ID.; ID.; CONSTRUED. — It is not so easy, however, to define the
phrase political question, nor to determine what matters fall within its scope.
It is frequently used to designate all questions that lie outside the scope of
the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government.
4. ID.; ID.; CONSTITUTIONAL POWER VESTED EXCLUSIVELY IN
THE PRESIDENT OR CONGRESS, BEYOND PROHIBITION OR
EXAMINATION BY THE COURT REQUIRED FOR ITS EXISTENCE. — For
a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court
should not examine or prohibit. A claim of plenary 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 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 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 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 by an executive
officer. Not even by the President. Section 6 further provides that the right to
travel, and this obviously includes the right to travel out of or back into the
Philippines, cannot be impaired except in the interest of national security,
public safety, or public health, as may be provided by law.
6. ID.; POLITICAL QUESTION DOCTRINE NO LONGER UTILIZED BY
THE COURT; COURT COMPELLED TO DECIDE THE CASE UNDER THE
1987 CONSTITUTION. — The framers of the Constitution believed that the
free use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties, complexity of
issues, momentousness of consequences or a fear that it was extravagantly
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 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 by its
mandate from refusing to invalidate a political use of power through a
convenient resort to the political question doctrine. We are compelled to
2
decide what would have been non-justiceable under our decisions
interpreting earlier fundamental charters.
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 ban Marcos policy in order to ascertain whether or not the
respondents acted with grave abuse of discretion. Nor are we forced to fall
back upon judicial notice of the implications of a Marcos return to his home to
buttress a conclusion. In the first place, there has never been a
pronouncement by the 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 present petition was filed that
the alleged danger to national 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 and interest
and (2) the continuing need to preserve the gains achieved in terms of
recovery and stability. Neither ground satisfies the criteria of national security
and public safety. The "confluence theory" of the Solicitor 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 troublesome person can be substituted for the Marcos threat as the
catalysing factor. 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 national security" during that unfortunate
period which led the framers of our present Constitution not only to re-enact
but to strengthen the declaration of this right.
DECISION
CORTES, J.:
Before the Court is a controversy of grave national importance. While
ostensibly only legal issues are involved, the Court’s decision in this case
would undeniably have a profound effect on the political, economic and other
aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into
exile. In his stead, Corazon C. 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
coup in 1986 led by political leaders of Mr. Marcos, the takeover of television
station Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unsuccessful plot of the Marcos spouses to
surreptitiously return from Hawaii with 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 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 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, both combatants and civilians, dead. There were several other
armed sorties of lesser significance, but the message they conveyed was the
same — a split in the ranks of the military establishment that threatened
civilian supremacy over the military and brought to the fore the realization
that civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided
elements in the military establishment and among rabid followers of Mr.
Marcos. There were also the communist insurgency and the secessionist
movement 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 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 wrest power from the government. Not only through
resort to arms but also through the use of propaganda have they been
successful in creating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign
debt and the plunder of the nation attributed to Mr. Marcos and his cronies
left the economy devastated. The efforts at economic recovery, three years
after Mrs. Aquino assumed office, have yet to show concrete results in
alleviating the poverty of the masses, while the recovery of the ill-gotten
wealth of the Marcoses has remained elusive.
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 the stability of government is threatened
from various directions and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the return of Mr. Marcos and
his family.
The Petition
This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years of
3
political, economic and social havoc in the country and who within the short
space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Court to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President’s
decision to bar their return to the Philippines.
The Issue
The issue is basically one of power: whether or not, in the exercise of the
powers granted by the Constitution, 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 the following issues:chanrob1es virtual 1aw library
1. Does the President have the power to bar the return of former
President Marcos and his family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President
Marcos and his 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 and his 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 in making
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 the
President’s decision, including the grounds upon which it was based, been
made known to petitioners so that they may controvert the same?
c. Is the President’s determination that the return of former President
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of
former President Marcos and his family is a clear and present danger to
national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President’s
decision to bar the return of former President Marcos and his family, acted
and would be acting without jurisdiction, or in excess of jurisdiction, or with
grave abuse of discretion, in performing any act which would effectively bar
the return of former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.]
The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following
provisions of the Bill of Rights, to wit:chanrob1es virtual 1aw library
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
x x x
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the
liberty of abode of the Marcoses because only a court may do so "within the
limits prescribed by law." Nor may the President impair their right to travel
because no law has authorized her to do so. They advance the view that
before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.chanrobles lawlibrary :
rednad
The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:chanrob1es virtual 1aw
library
4
Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and
to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had
been ratified by the Philippines, provides:chanrob1es virtual 1aw library
Article 12
1) Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose his
residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect national
security, public order (order public), public health or morals or the rights and
freedoms of others, and are consistent with the other rights recognized in the
present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents’ principal argument is that the issue in
this case involves a political question which is non-justiciable. According to
the Solicitor General:chanrob1es virtual 1aw library
As petitioners couch it, the question involved is simply whether or not
petitioners Ferdinand E. Marcos and his family have the right to travel and
liberty of abode. Petitioners invoke these constitutional rights in vacuo
without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reside here at this time in the face of the determination by the
President that such return and residence will endanger national security and
public safety.
It may be conceded that as formulated by petitioners, the question is not a
political question as it involves merely a determination of what the law
provides on the matter and application thereof to petitioners Ferdinand E.
Marcos and family. But when the question is whether the two rights claimed
by petitioners Ferdinand E. Marcos and family impinge on or collide with the
more primordial and transcendental right of the State to security and safety of
its nationals, the question becomes political and this Honorable Court can not
consider it.chanrobles virtual lawlibrary
There are thus gradations to the question, to wit:chanrob1es virtual 1aw
library
Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable
question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to
the Philippines and reestablish their residence here even if their return and
residence here will endanger national security and public safety? This is still
a justiciable question 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 falls within 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 individual rights. In support thereof, they cite Article II of the
Constitution, to wit:chanrob1es virtual 1aw library
Section 4. The prime duty of the Government is to serve and protect
the 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.
Section 5. The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are essential
for the enjoyment by all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and his
family from returning to the Philippines for reasons of national security and
public safety has international precedents. Rafael Trujillo 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 their homelands 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.]
5

The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different
light. Although we give due weight to the parties’ formulation of the issues,
we are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S.
Supreme Court in the leading cases 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 exceptions to
the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These
are what the right to travel would normally connote. Essentially, the right
involved is the right to return to one’s country, a totally distinct right under
international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right 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(1)] separately from the "right to leave any
country, including his own, and to return to his country." [Art. 13(2).] On the
other hand, the Covenant guarantees the "right to liberty of movement and
freedom to choose his residence" [Art. 12(1)] 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 the separate rights and freedoms of others."
[Art. 12(3)] as distinguished from the "right to enter his own country" of which
one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be
inappropriate to construe the 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.
The right to return to one’s country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-considered view that the right to return
may be considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and
Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
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 only tangentially material insofar as they
relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine,
and even in American jurisprudence.chanrobles virtual lawlibrary
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 for its resolution. Our resolution of the issue will
involve a two-tiered approach. We shall first resolve whether or not the
President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the
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 jurisdiction when she determined
that the return of the Marcoses to the Philippines poses a serious threat to
national interest and welfare and decided to bar their return.
Executive Power
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
Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has
blocked but with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government." [At
157.] Thus, the 1987 Constitution explicitly provides that" [t]he legislative
power shall be vested in the Congress of the Philippines" [Art. VI, Sec. 1],"
[t]he executive power shall be vested in the President of the Philippines" [Art.
VII, Sec. 1], and" [t]he judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law" [Art. VIII, Sec. 1.]
These provisions not only establish a separation of powers by actual division
[Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the
Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626
(1910)] pointed out "a grant of the legislative power means a grant of all
legislative power; and a grant of the judicial power means a grant of all 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 membership of more than two hundred members
and of the judicial power which is vested in a hierarchy of courts, it can
6
equally be said of the executive power which is vested in one official — the
President.
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 "executive power" although in the same
article it touches on the exercise of certain powers by the President, i.e., the
power of control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers under the
commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the
power to contract or guarantee foreign loans, the power to enter into treaties
or international agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Secs. 14-23].chanrobles law
library
The inevitable question then arises: by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall
exercise those specific powers and no other? Are these enumerated powers
the breadth and scope of "executive power" ? Petitioners advance the view
that the President’s powers are limited to those specifically enumerated in
the 1987 Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to her. Inclusio unius
est exclusio 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. **
Corwin, in his monumental volume on the President of the United States
grappled with the same problem. He said:chanrob1es virtual 1aw library
Article II is the most loosely drawn chapter of the Constitution. To those who
think that 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 leave considerable leeway for the future play of political forces, it
should be a vision realized.
We encounter this characteristic of Article II in its opening words: "The
executive power shall be vested in a President of the United States of
America.." . . [The President: Office and Powers, 1787-1957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the
different persons who held the office from Washington to the early 1900’s,
and the swing from the presidency by commission to Lincoln’s dictatorship,
he concluded that "what the presidency is at any particular moment depends
in important measure on who is President." [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial
Presidency:chanrob1es virtual 1aw library
For the American Presidency was a peculiarly personal institution. It
remained, of course, an agency of government subject to unvarying
demands and duties no matter who was President. But, more than most
agencies of government, it changed shape, intensity and ethos according to
the man in charge. Each President’s distinctive temperament and character,
his values, standards, style, his habits, expectations, idiosyncrasies,
compulsions, phobias recast the White House and pervaded the entire
government. The executive branch, said Clark Clifford, was a chameleon,
taking its color from the character and personality of the President. The thrust
of the office, its impact on the constitutional order, therefore altered from
President to President. Above all, the way each President understood it as
his personal obligation to inform and involve the Congress, to earn and hold
the confidence of the electorate and to render an accounting to the nation
and posterity determined 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, 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 1973
Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through
numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature. The 1987 Constitution,
however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for
checks and balances.cralawnad
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as head
of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the
President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country’s foreign
relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
7
"executive power." Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so
enumerated.
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. Thus, in the landmark
decision of Springer v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the Governor-General of the Philippines
and the Legislature may vote the shares of stock held by the 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:chanrob1es virtual 1aw library
. . . Here the members of the legislature who constitute a majority of the
"board" and "committee" respectively, are not charged with the performance
of any legislative functions or with the doing of anything which is in aid of
performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are
vested by the Organic Act in the Governor-General, it is clear that they are
not legislative in character, and still more clear that they are not judicial. The
fact that they do not fall within the authority of either of these two constitutes
logical ground for concluding that they do fall within that of the remaining one
among which the powers of government are divided . . . [At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes’ strong dissent. But in his enduring
words of dissent we find reinforcement for the view that it would indeed be a
folly to construe the powers of a branch of government to embrace only what
are specifically mentioned in the Constitution:chanrob1es virtual 1aw library
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 terminate in a
penumbra shading gradually from one extreme to the other. . . .
x x x guarantees they invoke are neither absolute nor inflexible. For the exercise of
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 ever so desirable to do so,
which I am far from believing that it is, or that the Constitution reqiures.[At
210-211.]
The Power Involved
The Constitution declares among the guiding principles that" [t]he prime duty
of the Government is to serve and protect the people" and that" [t]he
maintenance of peace and order, the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by
all 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 protection of life, liberty and property, and the promotion of the
general welfare are essentially 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
implementing action for these plans, or from another point of view, in making
any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.chanrobles.com :
virtual law library
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at a
decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, 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 people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers
of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone
that" [s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who
seek to return to the country are the deposed dictator and his family at whose
door the travails of the country are laid and from whom billions of dollars
believed to be ill-gotten wealth are sought to be recovered. The constitutional
even the preferred freedoms of speech and of expression, although couched
in absolute terms, admits of limits and must be adjusted to the requirements
of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1988].
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President’s 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
8
President but also his duty to do anything not forbidden by the Constitution or
the laws that the needs of the nation demand [See Corwin, supra, at 153]. It
is a power borne by the President’s duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President’s duty
to take care that the laws are faithfully executed [see Hyman, The American
President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in
the President].
More particularly, this case calls for the exercise of the President’s powers as
protector of the peace. [Rossiter, The American Presidency]. The power of
the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not
only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquillity in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the
relative want of an emergency specified in the commander-in-chief provision.
For in making the President commander-in-chief the enumeration of powers
that follow cannot be said to exclude the President’s exercising as
Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law,
in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcoses
from returning has been recognized by members of the Legislature, and is
manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the 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
uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.] The Resolution does not
question the President’s power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President’s sense of compassion to allow
a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses
to be allowed to return to the Philippines cannot be considered in the light
solely of the constitutional provisions guaranteeing liberty of abode and the
right to travel, subject to certain exceptions, or of case law which clearly
never contemplated situations even remotely similar to the 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 residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to the
exercise of a broader discretion on the part of the President to determine
whether it must be granted or denied.chanrobles lawlibrary : rednad
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether
or not there has 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 cannot agree with the
Solicitor General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments
to decide. But nonetheless there remain issues beyond the Court’s
jurisdiction the determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or referendum.
We cannot, for example, question the President’s recognition of a foreign
government, no matter how premature or improvident such action may
appear. We cannot set aside a presidential pardon though it may appear to
us that the beneficiary is totally undeserving of the grant. Nor can we amend
the Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.
There is nothing in the case before us that precludes our determination
thereof on the political question doctrine. 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 justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether or
not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the official whose action is being questioned. If
grave abuse is not established, the Court will not substitute its judgment for
that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide. In this light, it would appear clear that the
second paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to determine
whether or not there has been a grave abuse of discretion on the part of any
branch or instrumentality of the government, incorporates in the fundamental
law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971,
42 SCRA 448] that:chanrob1es virtual 1aw library
Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified conditions.
9
Pursuant to the principle of separation of powers underlying our system of
government, the Executive 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 the system of checks and balances, under which the
Executive is supreme, as regards 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.
In the exercise of such authority, the function of the Court is 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 the
power 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 for the President to conclude that it was in the national
interest to bar the return of the 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 National
Security Adviser, wherein petitioners and respondents were represented,
there exist factual bases 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 of the Marcoses and their followers to destabilize the country,
as earlier narrated in this ponencia bolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the violence
directed against the State and instigate more chaos.
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 effect of
the return of the Marcoses that may prove to be the proverbial final straw that
would break the camel’s back.
With these before her, the President cannot be said to have acted arbitrarily
and capriciously and whimsically in determining that the return of the
Marcoses poses 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 of violence against the State, that would be the time for
the President to step in and exercise the commander-in-chief powers granted
her by the Constitution to suppress or stamp out such violence. The State,
acting through the Government, is not precluded from taking pre-emptive
action against threats to its existence if, though still nascent, they are
perceived as apt to become serious and direct. Protection of the people is
the essence of the duty of government. The preservation 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 laws, cannot shirk from that responsibility.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the country,
while the Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one of
the root causes of widespread poverty and all its attendant ills. The resulting
precarious state of our economy 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 would wipe away the gains achieved during the past few years
and lead to total economic collapse. Given what is within our individual and
common knowledge of the state of the economy, we cannot argue with that
determination.
WHEREFORE, and it being our well-considered opinion that the President
did not act arbitrarily or with grave abuse of discretion in determining that the
return of former President Marcos and his family 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
hereby DISMISSED.
SO ORDERED.
10
Separate Opinions
FERNAN, C.J., concurring:jgc:chanrobles.com.ph
"The threats to national security and public order are real - the mounting
Communist insurgency, a simmering separatist movement, a restive
studentry, widespread labor disputes, militant farmer groups. . . . 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 Hugo E. Gutierrez, Jr. But they express eloquently the
basis of my full concurrence to the exhaustive and well-written ponencia of
Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not
derived solely from a particular constitutional clause or article or from an
express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of
law. History and time-honored principles of constitutional law have conceded
to the Executive Branch certain powers in times of crisis or grave and
imperative national emergency. Many terms are applied to these powers:
"residual," "inherent," "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 in this context that the power of the President to allow or
disallow the Marcoses to return to the Philippines should be viewed. By
reason of its impact on national peace and order in these admittedly critical
times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot
but pose a clear and present danger to public order and safety. One needs
only to recall the series of destabilizing actions attempted by the so-called
Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution’s aftermath to realize this. The most publicized of these offensives
is the Manila Hotel incident which occurred barely five (5) months after the
People’s Power Revolution. Around 10,000 Marcos supporters, backed by
300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-
taking of Arturo Tolentino as acting president of the Philippines. The public
disorder and peril to life and limb of the citizens engendered by this event
subsided only upon the eventual surrender of the loyalist soldiers to 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 Point in Cavite. A hundred rebel
soldiers took over Channel 7 and its radio station DZBB. About 74 soldier
rebels attacked Villamor Air Base, while another group struck at Sangley
Point in Cavite and held the 15th Air Force Strike wing commander and his
deputy hostage. Troops on board several vehicles attempted to enter Gate 1
of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted
personnel who forced their way through Gate 1 of Fort Bonifacio. They
stormed into the army stockade but having failed to convince 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 military led by Col. Gregorio "Gringo" Honasan who
remains at large to date, this most serious attempt to wrest 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 firearms and ammunition from the Camp Crame Armory during
a raid conducted in June 1988. Most of the group members were, however,
captured in Antipolo, Rizal. The same group was involved in an unsuccessful
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 CEDECOR to mobilize civilians from nearby provinces to act
as blockading forces at different Metro Manila areas for the projected link-up
of Marcos military loyalist troops with the group of Honasan. The pseudo
"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.chanrobles virtual lawlibrary
While not all of these disruptive incidents may be traced directly to the
Marcoses, their occurrence militates 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 seized upon
as an opportunity by other enemies of the State, such as the Communist
Party of the Philippines and the NPA’s, the Muslim secessionists and
extreme rightists of the RAM, to wage an offensive against the government.
Certainly, the state through its executive branch has the power, nay, the
11
responsibility and obligation, to prevent a grave and serious threat to its
safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to
return to the Philippines is one factor, which albeit, at first blush appears to
be extra legal, constitutes a valid justification 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
certainly welcomed, result of the unprecedented "people’s power" revolution.
Millions of our people braved military 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 removal of
the Marcoses from the Philippines was a moral victory for the Filipino people;
and the installation of 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 to sympathy, compassion and even Filipino tradition. The
political and economic gains we have achieved during the past three years
are however too valuable and precious to gamble away on purely
compassionate considerations. Neither could public peace, order and safety
be sacrificed for an individual’s wish to die in his own country. Verily in the
balancing of interests, the scales tilt in favor of presidential prerogative,
which we do not find to have been gravely abused or arbitrarily exercised, to
ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting:jgc:chanrobles.com.ph
"The Constitution . . . is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection 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]).
Since our days as law students, we have proclaimed the stirring words of Ex
Parte Milligan as self-evident truth. But faced with a hard and delicate case,
we now hesitate to give substance to their meaning. The Court has permitted
a basic freedom enshrined in the Bill of Rights to be taken away by
Government.
There is only one Bill of Rights with the same interpretation of liberty and the
same guarantee of freedom for both unloved and despised persons on one
hand and the rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should
not be a precedent. We are 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 by himself
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 rights and not of power. Mr. Marcos is insensate and
would not live if separated from the machines which have taken over the
functions of his kidneys and other organs. To treat him at this point as one
with full panoply of power against whom the forces of Government should be
marshalled is totally unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his right to come home
and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:jgc:chanrobles.com.ph
"Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law."
(Emphasis supplied, Section 6, Art. III, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual
invocation of national security and public safety which is hauntingly familiar
because it was pleaded so often by petitioner Ferdinand E. Marcos to justify
his acts under martial law. There is, however, no showing of the existence 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 to Mr. Marcos and which the military was able
to readily quell, the respondents have not pointed to any grave exigency
which permits the use of untrammeled Governmental power in this case and
the indefinite suspension of the constitutional right to travel.
The respondents’ basic argument is that the issue before us is a political
question beyond our jurisdiction to consider. They contend that the decision
to ban former President Marcos, and his family on grounds of national
security and public safety is vested by the Constitution in the President
alone. The determination should not be questioned before this Court. The
President’s finding of danger to the nation should be conclusive on the Court.
What is a political question?
12
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:chanrob1es
virtual 1aw library
x x x For a political question to exist, there must be in the Constitution a power
"It is a well-settled doctrine that political questions are not within the province
of the judiciary, except to the extent that power to deal with such questions
has been conferred on the courts by express constitutional or statutory
provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to
designate all questions that lie outside the scope of the judicial power. More
properly, however, it means those questions which, under the constitution,
are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or
executive branch of the government."cralaw virtua1aw library
We defined a political question in Tañada v. Cuenco (103 Phil. 1051, 1066
[1957[), as follows:cralawnad
"‘In short, the term ‘political question’ connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other words, in
the language of Corpus Juris Secundum (supra), it refers to those questions
which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the Government. It is
concerned with issues dependent upon the wisdom, not legality, of a
particular measure."cralaw virtua1aw library
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. Carr
are:jgc:chanrobles.com.ph
"It is apparent that several formulations which vary slightly according to the
settings in which the questions arise may describe a political question, which
identifies it as essentially a function of the separation of powers. Prominent
on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already
made; or potentiality of embarrassment from multifarious pronouncements by
various departments on one question."cralaw virtua1aw library
vested exclusively in the President or Congress, the exercise of which the
court should not examine or prohibit. A claim of plenary 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 where they please and to override everything which to them
represents evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which
commits or vests the determination 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 been enacted specifying the circumstances when the
right may be impaired in the interest of national security or public safety. The
power is in Congress, not the Executive.
The closest resort to a textually demonstrable constitutional commitment of
power may be found in the commander-in-chief clause which allows the
President to call out the armed forces in case of lawless violence, invasion or
rebellion and to suspend the privilege of the writ of habeas corpus or
proclaim martial law in the event of invasion or rebellion, when the public
safety requires it.
There is, however, no showing, not even a claim that the followers of former
President Marcos are engaging in rebellion or that he is in a position to lead
them. Neither is it claimed that there is a need to suspend the privilege of the
writ of habeas corpus or proclaim martial law because of the arrival of Mr.
Marcos and his family. To be sure, there may be disturbances but not of a
magnitude as would compel this Court to resort to a doctrine of non-
justiceability and to ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hardpressed to state who or what
constitutes a Marcos "loyalist." The constant insinuations that the "loyalist"
group is heavily funded by Mr. Marcos and his cronies and that the "loyalists"
engaging in rallies and demonstrations have to be paid individual allowances
to do so constitute the strongest indication that the hard core "loyalists" who
would follow Marcos right or wrong are so few in number that they could not
possibly destabilize the government, much less mount a serious attempt to
overthrow it.chanrobles.com:cralaw:red
13
Not every person who would allow Mr. Marcos to come home can be tagged
a "loyalist." It is in the best of Filipino customs and traditions to allow a dying
person to return to his home and breath his last in his native surroundings.
Out of the 103 Congressmen who passed the House resolution urging
permission for his return, there are those who dislike Mr. Marcos intensely or
who suffered under his regime. There are also many Filipinos who believe
that in the spirit of national unity and reconciliation Mr. Marcos and his family
should be permitted to return to the Philippines and that such a return would
deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.
The Court, however, should view the return of Mr. Marcos and his family
solely in the light of the constitutional guarantee of liberty of abode and the
citizen’s right to travel as against the respondents’ contention that national
security and public safety would be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue
exclusively to the President, there is likewise no dearth of decisional data, no
unmanageable standards which stand in the way of a judicial determination.
Section 6 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 by an executive officer. Not
even by the President. Section 6 further provides that the right to travel, and
this obviously includes the right to travel out of or back into the Philippines,
cannot be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
There is no law setting the limits on a citizen’s right to move from one part of
the country to another or from the Philippines to a foreign country or from a
foreign country to the Philippines. The laws cited by the Solicitor General —
immigration, health, quarantine, passports, motor vehicle, destierro,
probation, and parole — are all inapplicable insofar as the return of Mr.
Marcos and family is concerned. There is absolutely no showing how any of
these statutes and regulations could serve as a basis to bar their coming
home.
There is also no disrespect for a Presidential determination if we grant the
petition. We would simply be applying the Constitution, in the preservation
and defense of which all of us in Government, the President and Congress
included, are sworn to participate. Significantly, the President herself has
stated that the Court has the last word when it comes to constitutional
liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to
the invocation of the political question doctrine by government lawyers. (See
Morales, Jr. v. Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive
departments, Congress, and the judiciary criticized this Court for using what
they felt was a doctrine of convenience, expediency, utility or subservience.
Every major challenge to the acts of petitioner Ferdinand E. Marcos under
his authoritarian regime — the proclamation of martial law, the ratification of
a new constitution, the arrest and detention of "enemies of the State" without
charges being filed against them, the dissolution of Congress and the
exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country’s biggest
corporations, the taking over or closure of newspaper offices, radio and
television stations and other forms of media, the proposals to amend the
Constitution, etc. — was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political
question doctrine so often invoked by then President Marcos to justify his
acts is now being used against him and his family. Unfortunately, the Court
should not and is not allowed to indulge in such a persiflage. We are bound
by the Constitution.
The dim view of the doctrine’s use was such that when the present
Constitution was drafted, a broad definition of judicial power was added to
the vesting in the Supreme Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution
provides:jgc:chanrobles.com.ph
"Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."cralaw virtua1aw library
This new provision was enacted to preclude this Court from using the political
question doctrine as a means to avoid having to make decisions simply
because they are too controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political
question doctrine allowed the Court during the Marcos years to fall back on
prudence, institutional difficulties, complexity of issues, momentousness of
consequences or a fear that it was extravagantly 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
14
counsel were 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 by its mandate from refusing to
invalidate a political use of power through a convenient resort to the political
question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we
may refuse to resolve. There are still some political questions which only the
President, Congress, or a plebiscite may decide. Definitely, the issue before
us is not one of them.
The Constitution requires the Court "to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction."cralaw virtua1aw library
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence.
Unfortunately, considerations of national security do not readily lend
themselves to the presentation of proof before a court of justice. The vital
information essential to an objective determination is usually highly classified
and it cannot be rebutted by those who seek to overthrow the government.
As early as Barcelon v. Baker (5 Phil. 87, 93 [1905]),the Court was faced with
a similar situation. It posed a rhetorical question. If after investigating
conditions in the Archipelago or any part thereof, the President finds that
public safety requires the suspension of the privilege of the writ of habeas
corpus, can the judicial department 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 us a closed door factual briefing
with a lawyer for the petitioners and a lawyer for the respondents
present.chanrobles.com.ph : virtual law library
The results of the briefing call to mind the concurrence of Justice Vicente
Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592
[1983]):jgc:chanrobles.com.ph
"How can this Court determine the factual basis in order that it can ascertain
whether or not the president acted arbitrarily in suspending the writ when, in
the truthful words of Montenegro, with its very limited machinery [it] cannot
be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious.
It must rely on the Executive Branch which has the appropriate civil and
military machinery for the facts. This was the 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 in question to obtain
the facts. And as should be expected the Executive Branch supplied
information to support its position and this Court was in no situation to
disprove them. It was a case of the defendant judging the suit. After all is
said and done, the attempt by this Court to determine whether or not the
President acted arbitrarily in suspending the writ was a useless and futile
exercise.
"There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the
Executive Branch. For it is possible that the suspension of the writ lacks
popular support because of one reason 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 is not equipped to
handle; it lends its prestige and credibility to an unpopular act."cralaw
virtua1aw library
The other method is to avail of judicial notice. In this particular case, judicial
notice would be the only basis for determining the clear and present danger
to national security and public safety. The majority 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 for these incidents? All these problems are totally unrelated to
the Marcos of today and, in fact, are led by people who have always opposed
him. If we use the problems of Government as excuses for denying a
person’s right to come home, we will never run out of justifying reasons.
These problems or 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 to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the 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 present petition was filed that the alleged danger to
national 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 and interest and (2) the continuing
need to preserve the gains achieved in terms of recovery and stability. (See
page 7, respondents’ Comment at page 73 of Rollo). Neither ground satisfies
15
the criteria of national security and public safety. The President has been
quoted as stating that the vast majority of Filipinos support her position. (The
Journal, front page, January 24, 1989) We cannot validate her stance simply
because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President’s
original position "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 is reported to have
stated that "considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past three years"
in justifying her firm refusal to allow 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 be equated with national security or public order. They are too
generic and sweeping to serve as grounds for the denial of a constitutional
right. The Bill of Rights commands that the right to travel may not be
impaired except on the stated grounds of national security, public safety, or
public health and with the added requirement that such impairment must be
"as provided by law." The constitutional command cannot be negated by
mere generalizations.chanrobles law library : red
There is an actual rebellion not by Marcos followers but by the New Peoples’
Army. Feeding as it does on injustice, ignorance, poverty, and other aspects
at underdevelopment, 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.
Marcos himself was forced to flee the country because of "peoples’ power."
Yet, there is no move to arrest and exile the leaders of student groups,
teachers’ organizations, peasant and labor federations, transport workers,
and government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to see
how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan
ex-soldiers, the hard core loyalists, and other dissatisfied elements would
suddenly unite to overthrow the Republic should a dying Marcos come home
is too speculative and unsubstantial a ground for denying a constitutional
right. It is not shown how extremists from the right and the left who loathe
each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor 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
troublesome person can be substituted for the Marcos threat as the
catalysing factor. The alleged confluence of NPAs, secessionists, radical
elements, renegade soldiers, etc., would still be present. Challenged by any
critic or any serious problem, the Government can state that the situation
threatens a confluence of rebel forces and proceed to ride roughshod 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 may be violated. Yesterday, the right to travel of
Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is
the right of Mr. Marcos and family. Who will be tomorrow’s pariahs? I deeply
regret 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, has personally assured the Court that a rebellion of the above
combined groups will not succeed and that the military is on top of the
situation. Where then is the clear danger to national security? The Court has
taken judicial notice of something which even the military denies. There
would be severe strains on military capabilities according to General de Villa.
There would be set-backs in the expected eradication of the Communist
threat. There would be other serious problems but all can be successfully
contained by the military. I must stress that no reference was made to a clear
and 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 the parameters of the right to travel and to freely choose
one’s abode has constrained the President to fill in the vacuum, is too
reminiscent of Amendment No. 6 of the martial law Constitution to warrant
serious consideration. Amendment No. 6 allowed Marcos to issue decrees
whenever the Batasang Pambansa failed or was unable to act adequately on
any matter for any reason that in his judgment required immediate action.
When the Bill of Rights provides that a right may not be impaired except in
the interest of national security, public safety, or public health and further
requires that a law must provide when such specifically defined interests are
prejudiced or require protection, the inaction of Congress does not give
reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal
courts does not obstruct us from ruling against an unconstitutional assertion
of power by Philippine officials. Let the United States apply its laws. We have
to be true to our own.chanroblesvirtualawlibrary
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The
agony of traveling while hooked up to machines which have taken over the
functions of his heart, lungs, and kidneys may 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
16
own good, it might be preferable to stay where he is. But he invokes a
constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld
if to do so would run counter to a constitutional guarantee. Besides, the
petitioners are not asking for passports and nothing else. Any travel
documents or any formal lifting of the Marcos ban as would allow
international 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 not think we should differentiate the right to return home
from the right to go abroad or to move around in the Philippines. If at all, the
right to come home must be more preferred than any other aspect of the 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 national security" during that unfortunate
period which led the framers of our present Constitution not only to re-enact
but to strengthen the declaration of this right. Media often asks, "what else is
new?" I submit that we now have a freedom loving and humane regime. I
regret that the Court’s decision in this case sets back the gains that our
country has achieved in terms of human rights, especially human 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 former dictators who were barred by their successors from
returning to their respective countries. There is no showing that the countries
involved have constitutions which guarantee the liberty of abode and the
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 deeply committed 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 to sow discord and to divide the nation. Opposition to
the government no matter how odious or disgusting is, however, insufficient
ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked —
Is the Government helpless to defend itself against a threat to national
security? Does the President have to suspend the privilege of the writ of
habeas corpus or proclaim martial law? Can she not take less drastic
measures?
Of course, the Government can act. It can have Mr. Marcos arrested and
tried in court. The Government has more than ample powers under existing
law to deal with a person who transgresses the peace and imperils public
safety. But the denial of travel papers is not one of those powers because the
Bill of Rights says so. There is no law prescribing exile in a foreign land as
the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
Bidin, J., dissents.
CRUZ, J., dissenting:chanrob1es virtual 1aw library
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to
return to and live — and die — in his own country. I say this with a heavy
heart but say it nonetheless. That conviction is not diminished one whit
simply because many believe Marcos to be beneath contempt and
undeserving of the very liberties he flouted 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 we resolve it. The question we must answer is whether or
not, assuming that Marcos is permitted to leave Hawaii (which may depend
on the action we take today), the respondents have acted with grave abuse
of discretion in barring him from his own country.chanrobles law library : red
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 the government was prepared to prove the justification for
opposing the herein petition, i.e., that it had not acted arbitrarily. He said it
was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25, 1988.
The Solicitor General and three representatives from the military appeared
for the respondents, together with former Senator Arturo M. Tolentino,
representing the petitioners.
In about two hours of briefing, the government failed dismally to show that
the return of Marcos dead or alive would pose a threat to the national
security as it had alleged. The fears expressed by its representatives were
based on mere conjectures of political and economic destabilization without
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 the President’s decision" to bar Marcos’s return. That is not
my recollection of the impressions of the Court after that hearing.
17
In holding that the President of the Philippines has residual powers in
addition to the specific powers granted by the Constitution, the Court is
taking a great leap backward and reinstating the discredited doctrine
announced in Planas v. Gil (67 Phil. 62). This does not square with the
announced policy of the Constitutional Commission, which was precisely to
limit rather than expand presidential 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 it was true that the President had been granted the
totality of executive power, "it is difficult to see why our forefathers bothered
to add several specific items, including some trifling ones, . . . I cannot accept
the view that this clause is a grant in bulk of all conceivable executive power
but regard it as an allocation to the presidential office of the generic powers
thereafter stated."cralaw virtua1aw library
I have no illusion that the stand I am taking will be met with paeans of praise,
considering that Marcos is perhaps the most detested man in the entire
history of our country. But we are not concerned here with popularity and
personalities. As a judge, I am not swayed by what Justice Cardozo called
the "hooting throng" that may make us see things through the prisms of
prejudice. I bear in mind that when I sit in judgment as a member of this
Court, I must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only
of the established facts and the applicable law and not of wounds that still
fester and scars that have not healed. And not even of fear, for fear is a
phantom. That phantom did not rise when the people stood fast at EDSA —
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 professor of Constitutional Law. These principles have not
changed simply because I am now on the Court or a 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 the prohibitions of the government then, Marcos is
entitled to the same right to travel and the liberty of abode 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 charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:chanrob1es virtual 1aw library
I dissent. Already, some people refer to us as a nation without discipline. Are
we ready to be also called 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 to return 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 Universal Declaration of Human Rights and the 1987 Constitution
of the Philippines, he has the right to return to his own country except only if
prevented by the demands of national safety and national
security.chanrobles virtual lawlibrary
Our Armed Forces have failed to prove this danger. They are bereft of hard
evidence, and all they can rely on is sheer speculation. True, there is some
danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been
ousted from this country by popular will, can arouse an entire country to rise
in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding,
that the former President should be allowed to return to our country under the
conditions that he and the members of his family be under house arrest in his
hometown in Ilocos Norte, and should President Marcos or any member of
his family die, the body should not be taken out of the municipality of
confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental
human rights, for national discipline, and for human compassion.
PADILLA, J., dissenting:chanrob1es virtual 1aw library
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 Philippine Government 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 and governmental power. Issues of this nature more than explain why
the 1986 Constitutional Commission, led by the illustrious former Chief
Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new
provision on the power of Judicial Review, viz:jgc:chanrobles.com.ph
"Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
18
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." Article VIII, Section 1, par. 2; (Emphasis
supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of
every Filipino to travel which, in the language of the Constitution, shall not be
impaired "except in the interest of national security, public safety, or public
health, as may be provided by law" (Art. III, Sec. 6). That the right to travel
comprises the right to travel within the country, to travel out of the country
and to return to the country (Philippines), is hardly disputable. Short of all
such components, the right to travel is meaningless. The real question arises
in the interpretation of the qualifications attached by the Constitution to such
right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to
travel is absolute. I do not agree. It is my view that, with or without restricting
legislation, the interest of national security, public safety or public health can
justify and even require restrictions on the right to travel, and that the clause
"as may be provided by law" contained in Article III, Section 6 of the 1987
Constitution merely declares a constitutional leave or permission for
Congress to enact laws that may restrict the right to travel in the interest of
national security, public safety or public health. I do not, therefore, accept the
petitioners’ submission that, in the absence of enabling legislation, the
Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health.
The power of the State, in particular cases, to restrict travel of its citizens
finds abundant support in the police power of the State, which may be
exercised to preserve and maintain government as well as promote the
general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at
any given time, to restrict travel, even if founded on police power, cannot be
absolute and unlimited under all circumstances, much less, can it be arbitrary
and irrational.chanroblesvirtualawlibrary
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a
specific constitutional right, i. e., the right to return to the country. 1 Have the
respondents presented sufficient evidence to offset or override the exercise
of this right invoked by Mr. Marcos? Stated differently, have the respondents
shown to the Court sufficient factual bases and data which would justify their
reliance on national security and public safety in negating the right to return
invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully
weighed and assessed the "briefing" given the Court by the highest military
authorities of the land last 28 July 1989. I have searched, but in vain, for
convincing evidence that would defeat and overcome the right of Mr. Marcos
as a Filipino to return to this country. It appears to me that the apprehensions
entertained and expressed by the respondents, including those conveyed
through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than
real, obsessive rather than factual. Moreover, such apprehensions even if
translated into realities, would be "under control," as admitted to the Court by
said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion,
will know how to handle any situation brought about by a political recognition
of Mr. Marcos’ right to return, and his actual return, to this country. The
Court, in short, should not accept respondents’ general apprehensions,
concerns and perceptions at face value, in the light of a countervailing and
even irresistible, specific, clear, demandable, and enforceable right asserted
by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are
not to be used as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its
charter. By adopting the generally accepted principles of international law as
part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine
government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to
leave any country, including his own, and to return to his country. This
guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil
and Political Rights which states that "no one shall be arbitrarily 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 individual against 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, have raised the argument of "national security" and "public
safety," it is the duty of this Court to unquestioningly yield thereto, thus
casting the controversy to the realm of a political question. I do not agree. I
believe that this is one case where the human and constitutional right
invoked by one party is so specific, substantial and clear that it cannot be
overshadowed, much less, nullified by simplistic generalities; worse, the
Court neglects its duty under the Constitution when it allows the theory 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.
19
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
deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in
1989. I still have not found a satisfactory answer to that question. Instead, it
has become clearer by the day that the drama today is the same drama in
1983 with the only difference that the actors are in opposite roles, which
really makes one hope, in the national interest, that the mistake in 1983
should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing,
personal, political or otherwise, the following are the cogent and decisive
propositions in this case —
1. Mr. Marcos is a Filipino and, as such, entitled to return to, 5 die and
be buried in this country;
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 general conclusions of "national security" and "public safety" in
avoidance of a specific demandable 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 political contest, the "cold neutrality of an impartial judge." It is only
thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:chanrob1es virtual 1aw library
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the
exercise of the powers granted by the Constitution, the President may
prohibit the Marcoses from returning to the Philippines." 1 I therefore take
exception to allusions 2 anent "the capacity of the Marcoses to stir trouble
even from afar." 3 I have legitimate reason to fear that my brethren, in
passing judgment on the Marcoses (insofar as their "capacity to stir trouble"
is concerned), have overstepped the bounds of judicial restraint, or even
worse, convicted them without trial.cralawnad
I also find quite strained what the majority would have as the "real issues"
facing the Court: "The right to return to one’s country," pitted against "the
right of travel and freedom of abode", and their supposed distinctions under
international law, as if such distinctions, under international law, in truth and
in fact exist. There is only one right involved here, whether under municipal
or international law: the right of travel, whether within one’s own country, or
to another, and the right to return thereto. The Constitution itself makes no
distinctions; let, then, no one make a distinction. Ubi lex non distinguit, nec
nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the
Executive have the power to deny a citizen his right to travel (back to the
country or to another)? It is a question that, in essence, involves the
application, and no more, of the provisions of the 1987
Constitution:chanrob1es virtual 1aw library
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the
President is possessed of the power, thus:chanrob1es virtual 1aw library
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so
enumerated. 5
So also:chanrob1es virtual 1aw library
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at a
decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, 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 people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers
of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone
that" [s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.] 6
20
And finally:chanrob1es virtual 1aw library
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President’s 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 forbiden by the Constitution or
the laws that the needs of the nation demanded [See Corwin, supra, at 153].
It is a power borne by the President’s duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President’s duty
to take care that the laws are faithfully executed [See Hyman, The American
President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government 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 them by constitutional implication, * the latter must yield
to the paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a
bill of rights. Precisely a constitution exists to assure that in the discharge of
the governmental 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 lies forbidden territory for state
action." 8
My brethren have not demonstrated, to my satisfaction, how the President
may override the direct mandate of the fundamental law. It will not suffice, so
I submit, to say that the President’s plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own
right, a titan in the field of public law, "this argument . . . rests . . . not upon
the text of the [Constitution] .. but upon a mere inference therefrom." 9 For 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 same other than what it explicitly says already ("limits prescribed by law"
10 or "upon lawful order of the court" 11) — the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question
are: (1) decree of statute, or (2) lawful judicial mandate. Had the Constitution
intended a third exception, that is, by Presidential initiative, it could have so
averred. It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial, and
executive processes.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
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:chanrob1es virtual 1aw library
Sec. 5. The liberty of abode and of travel shall not be impaired except upon
lawful order of the court, or when necessary in the interest of national
security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order,
or (2) "when necessary in the interest of national security, public safety, or
public health." 13 Arguably, the provision enabled the Chief Executive
(Marcos) to moderate movement of citizens, which, Bernas says, justified
such practices 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 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting
national security 16 and foreign affairs; 17 the Bill of Rights — precisely, a
form of check against excesses of officialdom — is, in this case, a formidable
barrier against Presidential action. (Even on matters of State security, this
Constitution prescribes limits to Executive’s powers as Commander-in-Chief)
Second: Assuming, ex hypothesi, 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 Marcos
does pose a threat to the national good — and yet, at the same time, we
have persistent claims, made by the military top brass during the lengthy
closed-door hearing on July 25, 1989, that "this Government will not fall"
should the former first family in exile step on Philippine soil. Which is which?
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
21
That the President "has the obligation under the Constitution to protect the
people . . . :" 19 is an obligation open to no doubt. But the question, and so I
ask again and again, is: From whom? If we say "from Marcos," we unravel
chinks in our political armor. It also flies in the face of claims, so 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 the Government, 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 last
refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the
exercise of individual liberties. 20 As I indicated, not one shred of evidence,
let alone solid evidence, other than surmises of possibilities, has been shown
to justify the "balancing act" referred to. Worse, these conjectures contradict
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 power as protector of peace." 21
This is the self-same falsehood Marcos foisted on the Filipino people to
justify the authoritarian rule. It also means that we are no better than he was.
That" [t]he power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence," 22 is
a bigger fantasy: It not only summons the martial law decisions of pre-
"EDSA" (especially with respect to the detestable Amendment No. 6), it is
inconsistent with the express provisions of the commander-in chief clause of
the 1987 Charter, a -Charter that has perceptibly reduced the Executive’s
power; 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 this dissent lost a son. **
His son’s only "offense" was that he openly and unabatedly criticized the
dictator, his associates, and his military machinery. He would pay dearly for
it; he was arrested and detained, without judicial warrant or decision, for
seven months and seven days. He was held incommunicado a greater part
of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for
chronic asthma. The deplorable conditions of his imprisonment exacerbated
his delicate health beyond cure. He died, on November 11, 1977, a martyr on
the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos’
ruthless apparatchiki. On August 14, 1979, he was, along with former
President Diosdado Macapagal, and Congressmen Rogaciano Mercado and
Manuel Concordia, charged, "ASSOed," and placed under house arrest, for
"inciting to sedition" and "rumor mongering," 24 in the midst of the distribution
of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book
extremely critical of martial rule, published by him and former Congressman
Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of
libel in more 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
from house arrest and these political offenses. I am for Marcos’ return not
because I have a score to settle 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 leadership inflict it. But let him
stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right
of travel and movement and the liberty of abode. 25 We would have betrayed
our own ideals if we denied Marcos his rights. It is his constitutional right, a
right that can not be abridged by personal hatred, fear, founded or
unfounded, and by speculations of the man’s "capacity" "to stir trouble." Now
that the shoe is on the other foot, let no more of human rights violations be
repeated against any one, friend or foe. In a democratic framework, there is
no such thing as getting even.chanrobles virtual lawlibrary
The majority started this inquiry on the question of power. I hold that the
President, under the present Constitution and existing laws, does not have it.
Mandamus, I submit, lies.
22