Republic of the Philippines followers in the country.
The ratification of the 1987 Constitution
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS,
NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
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.
CORTES, J.:
Before the Court is a contreversy 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
consilidation 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 unseccessful plot of the Marcos
spouses to surreptitiously return from Hawii 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
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 thraetened civilian supremacy
over 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 and among rabid followers of Mr. Marcos. There are
also the communist insurgency and the seccessionist 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 on the areas they effectively control while the separatist are virtually
free to move about in armed bands. There has been no let up on this
groups' determination to wrest power from the govermnent. Not only
through resort to arms but also to through the use of propaganda have
they been successful in dreating 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
Philipppines 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
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 Courts to order the decision, including the grounds upon
respondents to issue travel documents to Mr. Marcos and the immediate which it was based, been made known to
members of his family and to enjoin the implementation of the President's petitioners so that they may controvert the
decision to bar their return to the Philippines. same?

The Issue c. Is the President's determination that the return of

former President Marcos and his family to the Philippines
Th issue is basically one of power: whether or not, in the exercise of the is a clear and present danger to national security, public
powers granted by the Constitution, the President may prohibit the safety, or public health a political question?
Marcoses from returning to the Philippines.
d. Assuming that the Court may inquire as to whether the
According to the petitioners, the resolution of the case would depend on return of former President Marcos and his family is a clear
the resolution of the following issues: and present danger to national security, public safety, or
public health, have respondents established such fact?
1. Does the President have the power to bar the return of
former President Marcos and family to the Philippines? 3. Have the respondents, therefore, in implementing the
President's decision to bar the return of former President
a. Is this a political question? 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
2. Assuming that the President has the power to bar
effectively bar the return of former President Marcos and
former President Marcos and his family from returning to
his family to the Philippines? [Memorandum for
the Philippines, in the interest of "national security, public
Petitioners, pp. 5-7; Rollo, pp. 234-236.1
safety or public health
The case for petitioners is founded on the assertion that the right of the
a. Has the President made a finding that the return of
Marcoses to return to the Philippines is guaranteed under the following
former President Marcos and his family to the Philippines
provisions of the Bill of Rights, to wit:
is a clear and present danger to national security, public
safety or public health?
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person
b. Assuming that she has made that finding
be denied the equal protection of the laws.
(1) Have the requirements of due process
xxx xxx xxx
been complied with in making such
finding?
Section 6. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired
(2) Has there been prior notice to
except upon lawful order of the court. Neither shall the
petitioners?
right to travel be impaired except in the interest of national
security, public safety, or public health, as may be
(3) Has there been a hearing? provided by law.

(4) Assuming that notice and hearing may The petitioners contend that the President is without power to impair the
be dispensed with, has the President's 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.
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:
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:
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:
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.
There are thus gradations to the question, to wit:
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:
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
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.]
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(l)]
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(l)] and the right to "be free to leave any country,
including his own." [Art. 12(2)] which rights may be restricted by such
laws as "are necessary to protect national security, public order, public
health or morals or enter qqqs own country" of which one cannot be
"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 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.
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 Marcose's 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 157.1 Thus, the 1987 Constitution explicitly provides
that "[the legislative power shall be vested in the Congress of the
Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the
President of the Philippines" [Art. VII, Sec. 11, and "[te 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
631-632.1 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 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, Sec. 14-23].
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 se
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. Inclusion unius est exclusio
alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 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:
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 11 in its
opening words: "The executive power shall be vested in a
President of the United States of America." . . .. [The
President: Office and Powers, 17871957, 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:
 For the American Presidency was a peculiarly personal
institution. it remained of course, an agency of
government subject to unvarying demands and duties no
remained, of cas 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 WhiteHouse 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.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as
head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision
of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated in the Constitution.
In other words, executive power is more than the sum of specific powers
so enumerated,
It has been advanced that whatever power inherent in the government
that is neither legislative nor judicial has to be executive. 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:
...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:
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. ....
xxx xxx xxx
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 requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime
duty of theGovernment 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.
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 guarantees they invoke are neither absolute nor inflexible.
For the exercise of even the preferred freedoms of speech and
ofexpression, 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, 1981.]
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
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
tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times
of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making
the President commander-in-chief the enumeration of powers that follow
cannot be said to exclude the President's exercising as Commander-in-
Chief powers short of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial law, in order to
keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the
Marcose's from returning has been recognized by memembers 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. 321.1 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.
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 4481 that:]
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. 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 Marcose's 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.
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.
Separate Opinions
FERNAN, C.J., concurring:
"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," 44 moral,"
"implied," "aggregate," "emergency." whatever they may be called, the
fact is that these powers exist, as they must if the governance function of
the Executive Branch is to be carried out effectively and efficiently. It is 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 I 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.
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 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 peoples 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
"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 qive 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:
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. 111,
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?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not
within the province of 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 he 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.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051,
1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal
parlance, what it means 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.
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:
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.
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 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 textile 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 hard-pressed 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.
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:
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.
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 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 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."
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 [19051), 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.
The results of the briefing call to mind the concurrence of Justice Vicente
Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order
that it can ascertain whether or not the president acted
arbitrarily in suspending the writ when, in the truth words
of Montenegro, with its very limited machinery fit] 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 its 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.
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 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 their 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.
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 under-development, the Communist rebellion is the
clearest and most present danger to national security and constitutional
freedoms. Nobody has suggested that one way to quell it would be to
catch and exile its leaders, Mr. 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, pea ant 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.
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 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
eixisting 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.
CRUZ, J., dissenting:
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 flounted when he was the absolute
ruler of this land.
The right of the United States government to detain him is not the
question before us, nor can 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.
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.
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."
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:
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.
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:
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:
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. 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 wich 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.
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. 1 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 it is one case where the human and
constitutional light 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.
During the oral arguments in this case, I asked the Solicitor General how
one could validly defend the right of former Senator Benigno S. Aquino,
Jr., a Filipino, to return to the Philippines in 1983 and, at the same
time, credibly denythe right of Mr. Marcos, also a Filipino, to return to the
Philippines 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 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:
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.
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 light 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 distinguish 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:
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:
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:
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
"sovereignty resides in the people and all government
authority emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the
general welfare and the 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 forbidden
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 order, or (2) "when necessary in the interest of national security, public
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 big 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
he's 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.
Obviously, none of the twin legal bars exist. There is no law banning the
Marcoses from the country; neither is there any court decree banishing
him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is
worded as follows:
Sec. 5. The liberty of abode and of travel shall not be
impaired except upon lawful 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
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; 17the 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 hypothesis that the President may legally act, the
question that emerges is: Has it been proved that Marcos, or his return,
will, in fact, interpose a threat to the national security , public safety, or
public health?" What appears in the records are vehement insistences
that 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
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
has.
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 powers vis-a-vis its 1973
counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say
the least, for Marcos. Because of Marcos, the writer of it's dissent lost a
son His son's only "offense" was that he 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 this as getting even.
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.
Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and
Regalado, JJ., concur.
Feliciano, J., is on leave.
Separate Opinions
FERNAN, C.J., concurring:
"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," 44 moral,"
"implied," "aggregate," 'emergency." whatever they may be called, the
fact is that these powers exist, as they must if the governance function of
the Executive Branch is to be carried out effectively and efficiently. It is 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 I 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.
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 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 peoples 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
"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 qive 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:
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. 111,
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?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
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 he 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.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051,
1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal
parlance, what it means 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.
The most often quoted definition of political question was made by
Justice Wilham 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:
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.
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 Govern ment 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 textile 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 hard-pressed 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.
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:
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.
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 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 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."
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 [19051), 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.
The results of the briefing call to mind the concurrence of Justice Vicente
Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order
that it can ascertain whether or not the president acted
arbitrarily in suspending the writ when, in the truth words
of Montenegro, with its very limited machinery fit] 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 its 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.
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-41) 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 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 their 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.
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 under-development, the Communist rebellion is the
clearest and most present danger to national security and constitutional
freedoms. Nobody has suggested that one way to quell it would be to
catch and exile its leaders, Mr. 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, pea ant 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.
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 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
eixisting 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.
CRUZ, J., dissenting:
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 flounted when he was the absolute
ruler of this land.
The right of the United States government to detain him is not the
question before us, nor can 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.
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. 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.
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."
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:
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.
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:
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:
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. 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 wich 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.
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. 1 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 it is one case where the human and
constitutional light 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.
During the oral arguments in this case, I asked the Solicitor General how
one could validly defend the right of former Senator Benigno S. Aquino,
Jr., a Filipino, to return to the Philippines in 1983 and, at the same
time, credibly denythe right of Mr. Marcos, also a Filipino, to return to the
Philippines 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 die and be buried in this country;
2. respondents have not shown any "hard evidence" or
con- vincing 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:
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.
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 light 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 distinguish 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:
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:
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:
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
"sovereignty resides in the people and all government
authority emanates from them." [Art. II, Sec. 1 . ] 6
And finally:
To the President, the problem is one of balancing the
general welfare and the 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 forbidden
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 big 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
he's 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 Ms 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.
Obviously, none of the twin legal bars exist. There is no law banning the
Marcoses from the country; neither is there any court decree banishing
him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is
worded as follows:
Sec. 5. The liberty of abode and of travel shall not be
impaired except upon lawful 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; 17the 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 hypothesis that the President may legally act, the
question that emerges is: Has it been proved that Marcos, or his return,
will, in fact, interpose a threat to the national security , public safety, or
public health?" What appears in the records are vehement insistences
that 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
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
has.
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 powers vis-a-vis its 1973
counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say
the least, for Marcos. Because of Marcos, the writer of it's dissent lost a
son His son's only "offense" was that he 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 Ms 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 framwork, there is no this as getting even.
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.
Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and
Regalado, JJ., concur.
Feliciano, J., is on leave.
Footnotes
** The Philippine presidency under the 1935 Constitution
was patterned in large measure after the American
presidency. But at the outset, it must be pointed out that
the Philippine government established under the
constitutions of 1935, 1973 and 1987 is a unitary
government with general powers unlike that of the United
States which is a federal government with limited and
enumerated powers. Even so, the powers of the president Government should deal with Mr. Marcos upon his return
of the United States have through the years grown, is also outside of the issues in this case.
developed and taken shape as students of that
presidency have demonstrated. SARMIENTO, J.:

FERNAN, C. J.: 1 Decision, 4.

1 From the speech "Restrictions on Human Rights-States 2 See supra, 1-4.

of Emergency, National Security, Public Safety and Public
Order" delivered at the Lawasia Seminar on Human 3 Supra, 2.
Rights, Today and Tomorrow: The Role of Human Rights
Commissions and Other Organs, at the Manila Hotel on
4 CONST., art. Ill, see. 6.
August 27, 1988.
5 Decision, supra, 18; emphasis in the original.
CRUZ, J.
6 Supra, 20-21.
1 In addition, he invokes the right as a basic human
right recognized by the Universal Declaration ration of
Human Rights. ni 7 Supra, 21-22.

2 S.P. Marks, Principles and Norms of Human Rights * But see Cruz, J., Dissenting.
Applicable in Emergency Situations: Under development,
Catastrophies and Armed Conflicts, The International 8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
Dimensions of Human Rights, Vol. 1 Unesco, 1982, pp.
175-204. 9 Republic v. Quasha, No L-30299, Aug. 17, 1972, 46
SCRA 160,169.
3 P. Hassan, The Word "Arbitrary" as used in the
Universal Declaration of Human Rights: "Illegal or Unjust", 10 CONST., supra.
10 Harv Int. L.J., p. 225 (1969). 4 FC Newman and IC
Vasak Civil and Political Rights, The International 11 Supra.
Dimensions of Human Rights, pp. 135-166.
12 CONST. (1973), art. IV, sec. 5.
4 F.C. Newman and K.Vasak and Poitical Rights, The
International Dimensions of Human Rights, pp. 135- 13 Supra.
166.5as to whether the U.S. Federal Government will
allow Mr. Marcos to leave the United States, is beyond
14 See BERNAS, THE CONSTITUTION OF THE
the issues in this case; similarly, as to how the Philippine REPUBLIC OF THE PHILIPPINES, 263 (1987 ED.)
government should deal with Mr. Marcos upon his return
is also outside of the issues in this case.
15 CONST. (1987), art III, sec. 6, supra.
5 As to whether the U.S. Federal Government will allow
Mr. Marcos to leave the United States, is beyond the 16 See Supra ,Aart VII, sec 18.
issues in this case; similarly, as to how the Philippine
17 See Go Tek v. Deportation Board , No. L-23846,
September 9, 1977, 79 scra 17.

18 See Lansang v. Garcia, Nos. L-33964, 33965, 33973,

33982, 34004, 34013, 34039, 34265, and 34339,
December 11, 1971, 42 SCRA 448, 480.

19 Decision, supra, 21.

20 Supra.

21 Supra.

22 Supra, 22.

23 Abraham ("Ditto") Sarmiento, Jr., then Editor-in-Chief,

Philippine Collegian (1975-1976), official student organ of
the University of the philippines. He was detained in the
military stockade for commoncriminals from Jan. to Aug,
1976.

24 SPI No. 79-347 ("For: Violation of Presidential Decree

No. 90 and Article 142 of the Revised Penal Code, as
amended the JG.R. No. 54180, Diosdado Macapagal,
Rogaciano M. Mercado, Manuel A. Concordia, and
Abraham F. Sarmiento, Petitioners, vs- The Preliminary
Investigating Panel in SPI No. 79-347 [Hamilton B.
Dimaya Brigadier General, AFP, The Judge Advocate
General, Chairman; Leon 0. Ridao Colonel, JAGS GSC
Deputy Judge Advocate General, Member; and Amor B.
Felipe, Colonel, JAGS (GSC) Executive Officer, Member],
and the Minister of National Defense, Respondent
Supreme Court.

25 See Santos v. The Special Commottee on Travel, et

al., G.R. No. L-45748, June 28, 1977, of which the
undersigned was the counsel of the petitioner.