1.1 Marcos Vs Manglapus 09.15.1989

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668 SUPREME COURT REPORTS ANNOTATED

Marcos vs. Manglapus
*
G.R. No. 88211.September 15, 1989.
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR.,

IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners, vs. HONORABLE RAUL MANGLAPUS,
CATALINO MACA-RAIG, 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.
Political Law; Bill of Rights; Liberty of Abode; Right to Travel; The right to return to one’s
country is not among the rights specifically guaranteed under the Bill of Rights, though it may well be
considered
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* EN BANC.
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as a generally accepted principle of international law which is part of the law of the land.—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 wellconsidered 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)].
Same; Same; The constitutional guarantees invoked by petitioners are not absolute and
inflexible, they admit of limits and must be adjusted to the requirements of equally important public
interests.—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 of expression, although couched in absolute terms, admits of limits
and must be adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988].
Same; Separation of Powers; Executive Powers; The grant of execu-tive power means a grant of
all executive powers.—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 out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the judicial departments of the
government.” [At 157]. Thus, the 1987 constitution explicitly provides that “[t]he legislative power
shall be vested in the Congress of the Philippines” [Art. VI, Sec. 1], “[t]he executive power shall be
vested in the President of the Philippines” [Art. VII, Sec. 1], and “[t]he judicial power shall be vested
in one Supreme Court and in such lower courts as may be established by law” [Art. VIII, Sec. 1].
These provisions not only establish a separation of powers by actual division [Angara v. Electoral
Commission, supra] but also confer plenary legislative, executive and judicial powers subject only to
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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
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ANNOTATED
grant of all legislative power; and a grant of the judicial power means a grant of all the judicial
power which may be exercised under the government.” [At 631-632.] If this can be said of the
legislative power which is exercised by two chambers with a combined membership of more than two
hundred members and of the judicial power which is vested in a hierarchy of courts, it can equally be
said of the executive power which is vested in one official—the President.
Same; Same; Same; The President; The powers granted to the President are not limited to those
powers specifically enumerated in the Constitution.—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 execu-tion 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 specificpowers 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.
Same; Same; Same; Same; Commander-In-Chief Powers: The President can exercise
Commander-In-Chief powers in order to keep the peace and maintain public order and security even
in the absence of an emergency.—More particularly, this case calls for the exercise of the President’s
powers as protector of the peace. [Rossiter, The Ameri-can 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 disminished 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 Presi-dent’s exercising as
Commander-in-Chief powers short of the calling of
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the armed forces, or suspending the privilege of the writ of habeas corpusor declaring martial
law, in order to keep the peace, and maintain public order and security.
Same; Same; Same; Same; The President has the power under the Constitution to bar the
Marcoses from returning to our country.—That the President has the power under the Constitution to
bar the Marcoses from returning has been recognized by members of the Legislature, and is
manifested by the Resolution proposed in the House of Representatives and signed by 103 of its
members urging the President to allow Mr. Marcos to return to the Philippines “as a genuine unselfish
gesture for true national reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution and our laws.” [House Resolution
No. 1342, Rollo, p. 321.] The Resolution does not question the President’s power to bar the Marcoses
from returning to the Philippines, rather, it appeals to the President’s sense of compassion to allow a
man to come home to die in his country. What we are saying in effect is that the request or demand of
the Marcoses to be allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations even remotely similar to the
present one. It must be treated as a matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the paramount duty residing in that
office to safeguard and protect general welfare. In that context, such request or demand should submit
to the exercise of a broader discretion on the part of the President to determine whether it must be
granted or denied.
Same; Same; Same; Power of Judicial Review; Political Question Doctrine; The present
Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry.
—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 Goverment.” [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
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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.
Same; Same; Same; Same; In the exercise of the power of judicial review, the function of the
court is merely to check, not to supplant the Executive.—There is nothing in the case before us that
precludes our determination thereof on the political question doctrine. The deliberations of the
Constitutional Commission cited by petitioners show that the framers intended to widen the scope of
judicial review but they did not intend courts of justice to settle all actual controversies before them.
When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide. In this light, it would appear clear that the second paragraph of
Article VIII, Section 1 of the Constitution, defining “judicial power,” which specifically empowers
the courts to determine whether or not there has been a grave abuse of discretion on the part of any
branch or instrumentality of the government, incorporates in the fundamental law the ruling in
Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 448] that: 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
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wisdom of his act. . . . [At 479-480.]
Same; Same; Same; Same; The President did not act arbitrarily, capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to national interest and welfare,
and in prohibiting 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 basis 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 wellorganized
communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers and civilian officials, to mention
only a few. The documented history of the efforts of the Marcoses and their followers to destabilize
the country, as earlier narrated in thisponenciabolsters 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.
FERNAN, C.J., Concurring
Political Law; Executive Department; Presidential Power; Presidential powers and prerogatives
are not fixed and their limits are dependent on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.—Presidential powers and prerogatives are not
fixed but fluctuate. They are not derived solely from a particular constitutional clause or article or
from an express statutory grant. Their limits are likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law. History and time-honored
principles of constitutional law have conceded to the Executive Branch certain powers in times of
crisis or grave and imperative national emergency. Many terms are applied to these powers:
“residual,” “inherent,” “moral,” “implied,”
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“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.
GUTIERREZ, J., Dissenting
Political Law; The President; The Judiciary; Power of Judicial Review; Political Question; For
a political question to exist, there must be in the Constitution a power exclusively vested in the
President or Congress, the exercise of which the courts should not examine or prohibit. The issue as
to the propriety of the President’s decision to prohibit the Marcoses from returning is not a political
question.—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 embarassment 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
determi-
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nation of the question raised to us solely in the President.
Same; Same; Bill of Rights; Liberty of Abode; The liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of the court, not of an
executive officer, not even the President.—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.
Same; Same; Same; Same; The Court has the last word when it comes to Constitutional liberties.
—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.
Same; The Judiciary; Judicial Power; Political Questions; The constitutional provision defining
judicial power was enacted to preclude the Court from using the political question doctrine as a
means to avoid controversial issues.—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
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critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to the political question doctrine. We
are compelled to decide what would have been non-justiceable under our decisions interpreting earlier
fundamental charters. This is not to state that there can be no more political questions which we may
refuse to resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one of them.
Same; Same; Bill of Rights; Liberty of Abode; Right to Travel; The right to come home must be
more preferred than any other aspect of the right to travel.—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 bemore 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.
Same; Same; Same; Opposition to the government, no matter how odious and disgusting is not
sufficient to deny or ignore a constitutional right.—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.
Same; Same; Same; Same; Denial of travel papers is not among the powers granted to the
government; There is no law prescribing exile to a foreign land as a penalty for hurting the nation.—
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under existing law to deal with a person who transgresses
the peace and imperils public safety. But the denial of travel papers is not one of those powers
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because the Bill of Rights says so. There is no law prescribing exile in a foreign land as the
penalty for hurting the Nation.
CRUZ, J., Dissenting
Political Law; Bill of Rights; Petitioner, as a Filipino, is entitled to return to or live or die in his
own country.—It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to
and live—and die—in his own country. I say this with a heavy heart but say it nonetheless. That
conviction is not diminished one whit simply because many believe Marcos to be beneath contempt
and undeserving of the very liberties he flouted when he was the absolute ruler of this land.
Same; Same; Same; The government failed dismally to show that the return of Marcos, dead or
alive, would pose a threat to national security.—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.
Same; Same; Same; Marcos is entitled to the same right to travel and liberty of abode that
Aquino then invoked.—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 allindividuals, including the patriot and the homesick and the prodigal son returning,
and tyrants and charlatans and scoundrels of every stripe.
PARAS, J., Dissenting
Political Law; Bill of Rights; Right to Travel; The former President, as a Filipino citizen, has the
right to return to his own country, except only if prevented by the demands of national safety and
national security.—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 exceptonly if prevented by the demands
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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.
PADILLA, J., Dissenting
Political Law; Bill of Rights; Right to Travel; Police Power; With or without restricting
legislation, the right to travel may be impaired or restricted in the interest of national security, public
safety and public health; Power of the state to restrict the right to travel finds abundant support in
police power.—Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the interest of
national security, public safety or public health can justify and even require restrictions on the right to
travel, and that the clause “as may be provided by law” contained in Article III, Section 6 of the 1987
Constitution merely declares a constitutional leave or permission for Congress to enact laws that may
restrict the right to travel in the interest of national security, public safety or public health. I do not,
therefore, accept the petitioners’ submission that, in the absence of enabling legislation, the Philippine
Government is powerless to restrict travel even when such restriction is demanded by national
security, public safety or public health. The power of the State, in particular cases, to restrict travel of
its citizens finds abundant support in the police power of the State, which may be exercised to
preserve and maintain government as well as promote the general welfare of the greatest number of
people. And yet, the power of the State, acting through a government in authority at any given time,
to restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Same; Same; Same; The government failed to present convincing evidence to defeat Marcos’
right to return to this country.—I have given these questions a searching examination. I have
carefully weighed and assessed the “briefing” given the Court by the highest military authorities of
the land last 28 July 1989. I have searched, but in vain, for convincing evidence that would defeat and
overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me that the
apprehensions entertained and expressed by the respondents, including those conveyed through the
military, do not, with all due respect, escalate to proportions of national security or public safety. They
appear to be more speculative than real, obsessive rather
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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.
SARMIENTO, J., Dissenting
Political Law; Bill of Rights; Right to Travel; The right to return to one’s own country cannot be
distinguished from the right to travel and freedom of abode.—I also find quite strained what the
majority would have as the “real issues” facing the Court: “The right to return to one’s country,”
pitted against “the right of travel and freedom of abode,” and their supposed distinctions under
international law, as if such distinctions under international law, in truth and in fact exist. There is
only one right involved here, whether under municipal or international law: the right of travel,
whether within one’s own country, or to another, and the right to return thereto. The Constitution itself
makes no distinctions; let, then, no one make a distinction. Ubi lex non distinguit, nec nos distinguere
debemus.
Same; The President; Bill of Rights; While the President may exercise powers not expressly
granted by the Constitution but may necessarily be implied therefrom, the latter must yield to the
paramountcy of the Bill of Rights.—While the Chief Executive exercises powers not found expressly
in the Charter, but has them by constitutional implication, the latter must yield to the paramountcy of
the Bill of Rights. According to Fernando: “A regime of constitutionalism is thus unthinkable without
an assurance of the primacy of a bill of rights. Precisely a constitution exists to assure that in the
discharge of the governmental functions, the dignity that is the birthright of every human being is
duly safeguarded. To be true to its primordial aim, a constitution must lay down the boundaries
beyond which lies forbidden territory for state action.” 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
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titan in the field of public law, “this argument . . . rests . . . not upon the text of the [Constitution]
. . . but upon a mere inference therefrom,” 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” or “upon lawful order of
the court”)—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.
Same; Same; Same; Same; Same; Under the new Constitution, the right to travel may be
impaired only within the limits provided by law; The President has been divested of the implied power
to impair the right to travel.—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. 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.” 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. 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.” The President is out of the picture.
Same; Same; Same; Same; The determination of whether Marcos’ return poses a threat to
national security should not be left solely to the Chief Executive, the Court itself must be satisfied that
the threat is not only clear but also present.—Admittedly, the Chief Executive is the “sole” judge of
all matters affecting national security and foreign affairs; the Bill of Rights—precisely, a form of
check against excesses of officialdom—is, in this case, a formidable barrier against Presidential
action. (Even on matters of State security, this Constitution prescribes limits to Executive’s powers as
commander-in-chief.) Second: Assuming, ex hypothesi, that the President may legally act, the
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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.
CORTÉS, J.:
Before the Court is a controversy of grave national importance. While ostensibly only legal
issues are involved, the Court’s decision in this case would undeniably have a profound
effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency
via the non-violent “people power” revolution and forced into exile. In his stead, Corazon
C. Aquino was declared President of the Republic under a revolutionary government. Her
ascension to and consolidation of power have not been unchallenged. The failed Manila
Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station
Channel 7 by rebel troops led by Col. Canlas with the support of “Marcos loyalists” and the
unsuccessful plot of the Marcos spouses to surreptitiously return from Hawaii with
mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin,
January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their followers in the country. The
ratification of the 1987 Constitution enshrined the victory of “people power” and also
clearly reinforced the constitutional moorings of Mrs. Aquino’s presidency. This did not,
however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio
Honasan, one of the major players in the February Revolution, led a failed coup that left
scores of people, both combatants and civilians, dead. There were several other armed
sorties of lesser significance, but the message they con-
682

veyed was the same—a split in the ranks of the military establishment that threatened
civilian supremacy over the military and brought to the fore the realization that civilian
government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements in
the military establishment and among rabid followers of Mr. Marcos. There were also the
communist insurgency and the secessionist movement in Mindanao which gained ground
during the rule of Mr. Marcos, to the extent that the communists have set up a parallel
government of their own in the areas they effectively control while the separatists are
virtually free to move about in armed bands. There has been no let up in these groups’
determination to wrest power from the government. Not only through resort to arms but
also through the use of propaganda have they been successful in creating chaos and
destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated.
The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to
show concrete results in alleviating the poverty of the masses, while the recovery of the ill-
gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philippines to
die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a time
when the stability of government is threatened from various directions and the economy is
just beginning to rise and move forward, has stood firmly on the decision to bar the return
of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of
office and into exile after causing twenty years of political, economic and social havoc in
the country and who within the short space of three years seeks to return, is in a class by
itself.
This petition for mandamus and prohibition asks the Court to order the respondents to
issue travel documents to Mr. Marcos
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and the immediate members of his family and to enjoin the implementation of the
President’s decision to bar their return to the Philippines.
The Issue
The issue is basically one of power: whether or not, in the exercise of the powers granted
by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines.
According to the petitioners, the resolution of the case would depend on the resolution
of the following issues:
1. Does the President have the power to bar the return of former President Marcos
and his family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and his
family from returning to the Philippines, in the interest of “national security, public
safety or public health”—
a. Has the President made a finding that the return of former President Marcos and
his family to the Philippines is a clear and present danger to national security,
public safety or public health?
b. Assuming that she has made that finding,—
(1) Have the requirements of due process been complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the President’s
decision, including the grounds upon which it was based, been made known to
petitioners so that they may controvert the same?
c. Is the President’s determination that the return of for-mer President Marcos and his
family to the Philippines is a clear and present danger to national security, public
safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former President
Marcos and his family is a clear and present danger to national security, public
safety, or public health, have respondents established such fact?
684

3.Have the respondents, therefore, in implementing the President’s decision to bar

the return of former President Marcos and his family, acted and would be acting
without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion,
in performing any act which would effectively bar the return of former President
Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.]
The case for petitioners is founded on the assertion that the right of the Marcoses to return
to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
xxx
Section 6 .The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of
the Marcoses because only a court may do so “within the limits prescribed by law.” Nor
may the President impair their right to travel because no law has authorized her to do so.
They advance the view that before the right to travel may be impaired by any authority or
agency of the government, there must be legislation to that effect.
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:
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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.
686

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 his family from
returning to the Philippines for reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza, Jr.
of Nicaragua, Jorge Ubico of Guatemala, Fulgencio Batista of Cuba, King Farouk of Egypt,
Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela
were among the deposed dictators whose return to their homelands was prevented by their
governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in

Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
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
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narrow confines in arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines of
the right to travel and the import of the decisions of the U.S. Supreme Court in the leading
cases of Kent v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and Haig v.
Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed. 2d 640) which affirmed the right to travel and
recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from
the Philippines to other countries or within the Philippines. These are what the right to
travel would normally connote. Essentially, the right involved is the right to return to one’s
country, a totally distinct right under international law, independent from although related to
the right to travel. Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement and abode
within the territory of a state, the right to leave a country, and the right to enter one’s
country as separate and distinct rights. The Declaration speaks of the “right to freedom of
movement and residence within the borders of each state” [Art. 13(1)] separately from the
“right to leave any country, including his own, and to return to his country.” [Art. 13(2).]
On the other hand, the Covenant guarantees the “right to liberty of movement and freedom
to choose his residence” [Art. 12(1)] and the right to “be free to leave any country,
including his own.” [Art. 12(2)] which rights may be restricted by such laws as “are
necessary to protect national security, public order, public health or morals or the separate
rights and freedoms of others.” [Art. 12(3)] as distinguished from the “right to enter his
own country” of which one cannot be “arbitrarily deprived.” [Art. 12(4).] It would therefore
be inappropriate to construe the limitations to the right to return to one’s country in the
same context as those pertaining to the liberty of abode and the right to travel.
The right to return to one’s country is not among the rights specifically guaranteed in the
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our
wellconsidered 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
688

the Constitution.] However, it is distinct and separate from the right to travel and enjoys a
different protection under the International Covenant of Civil and Political Rights,
i.e.,against being “arbitrarily deprived” thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig,which refer to the issuance of passports
for the purpose of effectively exercising the right to travel are not determinative of this case
and are only tangentially material insofar as they relate to a conflict between executive
action and the exercise of a protected right. The issue before the Court is novel and without
precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there
can be limitations on the right to travel in the absence of legislation to that effect is
rendered unnecessary. An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article
VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined that the return
of the Marcoses to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139(1936)], “the Constitution has blocked but with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government.” [At 157.] Thus, the 1987 Constitution explicitly provides
that “[t]he legislative power shall be vested in the Congress of the Philippines” [Art. VI,
Sec. 1], “[t]he executive power shall be
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vested in the President of the Philippines” [Art. VII, Sec. 1], and “[t]he judicial power shall
be vested in one Supreme Court and in such lower courts as may be established by law”
[Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution. For
as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out “a grant of
the legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the
government.” [At 631-632.] If this can be said of the legislative power which is exercised
by two chambers with a combined membership of more than two hundred members and of
the judicial power which is vested in a hierarchy of courts, it can equally be said of the
executive power which is vested in one official—the President.
As stated above, the Constitution provides that “[t]he executive power shall be vested in
the President of the Philippines.” [Art. VII, Sec. 1]. However, it does not define what is
meant by “executive power” although in the same article it touches on the exercise of
certain powers by the President, i.e.,the power of control over all executive departments,
bureaus and offices, the power to execute the laws, the appointing power, the powers under
the commander-in-chief clause, the power to grant reprieves, commutations and pardons,
the power to grant amnesty with the concurrence of Congress, the power to contract or
guarantee foreign loans, the power to enter into treaties or international agreements, the
power to submit the budget to Congress, and the power to address Congress [Art. VII, Secs.
14-23].
The inevitable question then arises: by enumerating certain powers of the President did
the framers of the Constitution intend that the President shall exercise those specific powers
and no other? Are these enumerated powers the breadth and scope of “executive power”?
Petitioners advance the view that the President’s powers are limited to those specifically
enumerated in the 1987 Constitution. Thus, they assert: “The President has enumerated
powers, and what is not enumerated is impliedly denied to her. Inclusio unius est exclusio
alterius.”
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[Memorandum for Petitioners, p. 4; Rollo p. 233.] This argument** brings to mind the
institution of the U.S. Presidency after which ours is legally patterned.
Corwin, in his monumental volume on the President of the United States grappled with
the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution
ought to settle everything beforehand it should be a nightmare; by the same token, to those who think
that constitution makers ought to leave considerable leeway for the future play of political forces, it
should be a vision realized.
We encounter this characteristic of Article II in its opening words: “The executive power shall be
vested in a President of the United States of America.” x x x. [The President: Office and Powers,
1787-1957,pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons
who held the office from Washington to the early 1900’s, and the swing from the
presidency by commission to Lincoln’s dictatorship, he concluded that “what the
presidency is at any particular moment depends in important measure on who is President.”

[At 30.]
This view is shared by Schlesinger, who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. It remained, of course, an agency
of government subject to unvarying demands and duties no matter who was President. But, more than
most agencies of government, it changed shape, intensity and ethos according to the man in charge.
Each President’s distinctive temperament and character, his values, standards, style, his habits,
expectations, idiosyncrasies, compulsions, phobias recast the White
_______________
** 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 of the United States have through the years grown, developed and
taken shape as students of that presidency have demonstrated.
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House and pervaded the entire government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the President. The thrust of the
office, its impact on the constitutional order, therefore altered from President to President. Above all,
the way each President understood it as his personal obligation to inform and involve the Congress, to
earn and hold the confidence of the electorate and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the constitutional order. [At 212-213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but,
rather, that the consideration of tradition and the development of presidential power under
the different constitutions are essential for a complete understanding of the extent of and
limitations to the President’s powers under the 1987 Constitution. The 1935 Constitution
created a strong President with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into the parliamentary type,
with the President as a mere figurehead, but through numerous amendments, the President
became even more powerful, to the point that he was also the de facto Legislature. The
1987 Constitution, however, brought back the presidential system of government and
restored the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for checks and
balances.
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
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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; italics 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. x x x.
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.]
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The Power Involved
The Constitution declares among the guiding principles that “[t]he prime duty of the
Government is to serve and protect the people” and that “[t]he maintenance of peace and
order, the protection of life, liberty, and property, and the promotion of the general welfare
are essential for the enjoyment by all the people of the blessings of democracy.” [Art. II,
Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order,
the protection of life, liberty and property, and the promotion of the general welfare are
essentially ideals to guide governmental action. But such does not mean that they are empty
words. Thus, in the exercise of presidential functions, in drawing a plan of government, and
in directing implementing action for these plans, or from another point of view, in making
any decision as President of the Republic, the President has to consider these principles,
among other things, and adhere to them.
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 illgotten 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 of
694

expression, although couched in absolute terms, admits of limits and must be adjusted to
the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R.
Nos. 79690-707, October 7, 1988].
To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the
President’s residual power to protect the general welfare of the people. It is founded on the
duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not
only the power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand [SeeCorwin,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 [seeHyman, 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 Marcoses from
returning has been recognized by mem-
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bers of the Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to allow Mr. Marcos
to return to the Philippines “as a genuine unselfish gesture for true national reconciliation
and as irrevocable proof of our collective adherence to uncompromising respect for human
rights under the Constitution and our laws.” [House Resolution No. 1342, Rollo, p. 321.]
The Resolution does not question the President’s power to bar the Marcoses from returning
to the Philippines, rather, it appeals to the President’s sense of compassion to allow a man
to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed
to return to the Philippines cannot be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations even remotely
similar to the present one. It must be treated as a matter that is appropriately addressed to
those residual unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader discretion on the
part of the President to determine whether it must be granted or denied.
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
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Congress or for the people themselves through a plebiscite or referendum. We cannot, for
example, question the President’s recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set aside a presidential
pardon though it may appear to us that the beneficiary is totally undeserving of the grant.
Nor can we amend the Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the
political question doctrine. The deliberations of the Constitutional Commission cited by
petitioners show that the framers intended to widen the scope of judicial review but they did
not intend courts of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official concerned and decide a matter which
by its nature or by law is for the latter alone to decide. In this light, it would appear clear
that the second paragraph of Article VIII, Section 1 of the Constitution, defining “judicial
power,” which specifically empowers the courts to determine whether or not there has been
a grave abuse of discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964,
December 11, 1971, 42 SCRA 448] that:
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.
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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 wellorganized communist insurgency, a separatist movement in
Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to mention only a few. The documented
history of the efforts of the Marcoses and their followers to destabilize the country, as
earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at
this time would only exacerbate and intensify the violence directed against the State and
instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return of the Marcoses that may prove
to be the proverbial final straw that would break the camel’s back.
With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses a serious
threat to the national interest and welfare and in prohibiting their return.
698

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
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instant petition is hereby DISMISSED.

SO ORDERED.
Narvasa, Melencio-Herrera, Gancayco, Griño-Aquino, Me-dialdea and Regalado,

JJ., concur.
Fernan, C.J., See separate concurring opinion.
Gutierrez, Jr., Cruz, Padilla and Sarmiento, JJ., See dissent.
Paras, J., I dissent in a separate opinion.
Feliciano, J., On leave—voted to grant petition when the case was deliberated
upon.
Bidin, J., I join in the dissent of Mr. Justice Hugo Gutierrez, Jr.
FERNAN, C.J., Concurring Opinion
“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. x x x. Each of these threats is an
1
explosive ingredient in a
steaming cauldron which could blow up if not handled properly.”
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 ponenciaof Mme. Justice Irene R. Cortés.
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
_______________
1From the speech “Restrictions on Human Rights—States of Emergency, National Security, Public Safety and
Public Order” delivered at the Lawasia Seminar on Human Rights, Today and Tomorrow: The Role of Human
Rights Commissions and Other Organs, at the Manila Hotel on August 27, 1988.
700

conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: “residual,” “inherent,”
“moral,” “implied,” “aggregate,” “emergency.” Whatever they may be called, the fact is
that these powers exist, as they must if the governance function of the Executive Branch is
to be carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be viewed.
By reason of its impact on national peace and order in these admittedly critical times, said
question cannot be withdrawn from the competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a
clear and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist
groups during the EDSA Revolution’s aftermath to realize this. The most publicized of
these offensives is the Manila Hotel incident which occurred barely five (5) months after
the People’s Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist
soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged
at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila
and Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio
station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group
struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and
his deputy hostage. Troops on board several vehicles attempted to enter Gate 1 of Camp
Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who
forced their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade
but having
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VOL. 177, SEPTEMBER 15, 1989 701

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
702

the Marcoses from the Philippines came about as an unexpected, but certainly welcomed,
result of the unprecedented “people’s power” revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways
contributed time, effort and money to put an end to an evidently untenable claim to power
of a dictator. The removal of the Marcoses from the Philippines was a moral victory for the
Filipino people; and the installation of the present administration, a realization of and
obedience to the people’s will.
Failing in legal arguments for the allowance of the Marcoses’ return, appeal is being
made to sympathy, compassion and even Filipino tradition. The political and economic
gains we have achieved during the past three years are however too valuable and precious
to gamble away on purely compassionate considerations. Neither could public peace, order
and safety be sacrificed for an individual’s wish to die in his own country. Verily in the
balancing of interests, the scales tilt in favor of presidential prerogative, which we do not
find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J., Dissenting Opinion
“The Constitution xxx is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever invented by
the wit of man than that any of its provisions can be suspended during any of the great
exigencies of government.” (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte
Milligan as self-evident truth. But faced with a hard and delicate case, we now hesitate to
give substance to their meaning. The Court has permitted a basic freedom enshrined in the
Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the rest who
are not so
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VOL. 177, SEPTEMBER 15, 1989 703

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.” (Italics
supplied, Section 6, Art. III, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious
of which were totally unrelated to Mr. Marcos and which the military was able to readily
quell, the respondents have not pointed to any grave exigency which permits the use of
untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents’ basic argument is that the issue before us is a political question beyond
our jurisdiction to consider. They
704

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 lie outside the scope of the judicial power. More properly, however, it means those
questions which, under the constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government.”
We defined a political question in Tañada 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. Carrare:
“It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a
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VOL. 177, SEPTEMBER 15, 1989 705

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 embarassment 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 textually demonstrable constitutional commitment of power may
be found in the commander-in-chief clause which allows the President to call out the armed
forces in case of lawless violence, invasion or rebellion and to suspend the privilege of the
writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when
the public safety requires it.
There is, however, no showing, not even a claim that the followers of former President
Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it
claimed that there is a need to suspend the privilege of the writ of habeas
706

corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be
sure, there may be disturbances but not of a magnitude as would compel this Court to resort
to a doctrine of non-justiceability and to ignore a plea for the enforcement of an express Bill
of Rights guarantee.
The respondents themselves are hardpressed to state who or what constitutes a Marcos
“loyalist.” The constant insinuations that the “loyalist” group is heavily funded by Mr.
Marcos and his cronies and that the “loyalists” engaging in rallies and demonstrations have
to be paid individual allowances to do so constitute the strongest indication that the hard
core “loyalists” who would follow Marcos right or wrong are so few in number that they
could not possibly destabilize the government, much less mount a serious attempt to
overthrow it.
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
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VOL. 177, SEPTEMBER 15, 1989 707

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
708

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 political question doctrine. We are compelled to decide
what would have been non-justiceable under our decisions interpreting earlier fundamental
charters.
This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one
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VOL. 177, SEPTEMBER 15, 1989 709

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 [1905]), the Court was faced with
a similar situation. It posed a rhetorical question. If after investigating conditions in the
Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the “grave abuse of discretion” formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor General’s offer
that the military give us a closed door factual briefing with a lawyer for the petitioners and
a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos
in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [1983]):
“How can this Court determine the factual basis in order that it can ascertain whether or not the
president acted arbitrarily in suspending the writ when, in the truthful words of Montenegro, with its
very limited machinery [it] cannot be in better position [than the Executive Branch] to ascertain or
evaluate the conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely
on the Executive Branch which has the appropriate civil and military machinery for the facts. This
was the method which had to be used in Lansang. This Court relied heavily on classified information
supplied by the military. Accordingly, an incongruous situation obtained. For this Court, relied on the
very branch of the government whose act was in question to obtain the facts. And as should be
expected the Executive Branch supplied information to support its position and this
710

Court was in no situation to disprove them. It was a case of the defendant judging the suit. After all is
said and done, the attempt by this Court to determine whether or not the President acted arbitrarily in
suspending the writ was a useless and futile exercise.
“There is still another reason why this Court should maintain a detached attitude and refrain from
giving the seal of approval to the act of the Executive Branch. For it is possible that the suspension of
the writ lacks popular support because of one reason or another. But when this Court declares that the
suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive
Branch) it in effect participates in the decision-making process. It assumes a task which it is not
equipped to handle; it lends its prestige and credibility to an unpopular act.”
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,
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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 her stance simply because it is a popular one. Supreme Court decisions do not have
to be popular as long as they follow the Constitution and the law. The President’s original
position “that it is not in the interest of the nation that Marcos be allowed to return at this
time” has not changed. (Manila Times, front page, February 7, 1989). On February 11,
1989, the President is reported to have stated that “considerations of the highest national
good dictate that we preserve the substantial economic and political gains of the past three
years” in justifying her firm refusal to allow the return of Mr. Marcos despite his failing
health. (Daily Globe, front page, February 15, 1989). “Interest of the nation,” “national
good,” and “preserving economic and political gains,” cannot be equated with national
security or public order. They are too generic and sweeping to serve as grounds for the
denial of a constitutional right. The Bill of Rights commands that the right to travel may not
be impaired except on the stated grounds of national security, public safety, or public
health and with the added requirement that such impairment must be “as provided by law.”
The constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples’ Army.
Feeding as it does on injustice, ignorance, poverty, and other aspects at underdevelopment,
the Communist rebellion is the clearest and most present danger to national security and
constitutional freedoms. Nobody has suggested that one way to quell it would be to catch
and exile its leaders, Mr. Marcos himself was forced to flee the country because of
“peoples’ power.” Yet, there is no move to arrest and exile the leaders of student groups,
teachers’ organizations, peasant and labor federations, transport workers, and government
unions whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers,
the hard core loyalists, and other
712

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
713
VOL. 177, SEPTEMBER 15, 1989 713
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
714

of our present Constitution not only to re-enact but to strengthen the declaration of this
right. Media often asks, “what else is new?” I submit that we now have a freedom loving
and humane regime. I regret that the Court’s decision in this case sets back the gains that
our country has achieved in terms of human rights, especially human rights for those whom
we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of
former dictators who were barred by their successors from returning to their respective
countries. There is no showing that the countries involved have constitutions which
guarantee the liberty of abode and the freedom to travel and that despite such constitutional
protections, the courts have validated the “ban a return” policy. Neither is it shown that the
successors of the listed dictators are as deeply committed to democratic principles and as
observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no matter
how odious or disgusting is, however, insufficient ground to ignore a constitutional
guarantee.
During the protracted deliberations on this case, the question was asked—Is the
Government helpless to defend itself against a threat to national security? Does the
President have to suspend the privilege of the writ of habeas corpus or proclaim martial
law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court.
The Government has more than ample powers under existing law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one
of those powers because the Bill of Rights says so. There is no law prescribing exile in a
foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., Dissenting Opinion
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
715
VOL. 177, SEPTEMBER 15, 1989 715

country. I say this with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be beneath contempt and
undeserving of the very liberties he flouted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before us,
nor can we resolve it. The question we must answer is whether or not, assuming that
Marcos is permitted to leave Hawaii (which may depend on the action we take today), the
respondents have acted with grave abuse of discretion in barring him from his own country.
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
716

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.

717
VOL. 177, SEPTEMBER 15, 1989 717

PARAS, J., Dissenting Opinion
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 Opinion
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
718

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;
(italics 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 particu-
719
VOL. 177, SEPTEMBER 15, 1989 719

lar cases, to restrict travel of its citizens finds abundant support in the police power of the
State, which may be exercised to preserve and maintain government as well as promote the
general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given
time, to restrict travel, even if founded on police power, cannot be absolute and unlimited
under all circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a1 Filipino, invoking a specific
constitutional right, i. e., the right to return to the country. Have the respondents presented
sufficient evidence to offset or override the exercise of this right invoked by Mr. Marcos?
Stated differently, have the respondents shown to the Court sufficient factual bases and data
which would justify their reliance on national security and public safety in negating the
right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and
assessed the “briefing” given the Court by the highest military authorities of the land last 28
July 1989. I have searched, but in vain, for convincing evidence that would defeat and
overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those
conveyed through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would be
“under control,” as admitted to the Court by said military authorities, given the resources
and facilities at the command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos’ right to return, and his actual return, to this country.
The Court, in short, should not accept respondents’ general apprehensions, concerns and
perceptions at face value, in the light of a countervailing and even irresistible, specific,
clear, demandable, and enforceable right asserted by a Filipino.
_______________
1 In addition, he invokes the right as a basic human right recognized by the Universal Declaration of Human
Rights.
720

Deteriorating political, social, economic or exceptional

2
conditions, if any, are not to be used
as a pretext to justify derogation of human rights.
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.” (italics supplied)
3
“Arbitrary” or “arbitrarily” was specifically chosen by the
drafters of the Covenant hoping to protect an individual against unexpected, irresponsible
or excessive encroachment on his rights by the state based on national 4 traditions or a
particular sense of justice which falls short of international law or standards.
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of “national security” and “public safety,” it is the duty
of this Court to unquestioningly yield thereto, thus casting the controversy to the realm of a
political question. I do not agree. I believe that this is one case where the human and
constitutional right invoked by one party is so specific, substantial and clear that it cannot
be overshadowed, much less, nullified by simplistic generalities; worse, the Court neglects
its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what,
_______________
2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations: Underdevelopment,
Catastrophies and Armed Conflicts, The International Dimensions of Human Rights, Vol. 1 Unesco, 1982, pp.
175-204.
3 P. Hassan, The Word “Arbitrary” as used in the Universal Declaration of Human Rights: “Illegal or Unjust”,
10 Harv. Int. L.J., p. 225 (1969).

4 F.C. Newman and K. Vasak, Civil and Political Rights, The International Dimensions of Human Rights, pp.
135-166.
721
VOL. 177, SEPTEMBER 15, 1989 721

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 deny the right of Mr. Marcos, also
a Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to
that question. Instead, it has become clearer by the day that the drama today is the same
drama in 1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal,
political or otherwise, the following are the cogent and decisive propositions in this case—
5
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.
_______________
5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States, is beyond the
issues in this case; similarly, as to how the Philippine government should deal with Mr. Marcos upon his return is
also outside of the issues in this case.
722

SARMIENTO, J., Dissenting Opinion
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 1
Constitution, the President may prohibit2 the Marcoses from returning
to the Philippines.” I therefore take exception
3
to allusions anent “the capacity of the
Marcoses to stir trouble even from afar.” 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 right of travel, whether within one’s own
country, or to another, and the right to return thereto. The Constitution itself makes no
distinctions; let, then, no one make a distinction. Ubi lex non distinguit, nec nos distinguere
debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive
have the power to deny a citizen his right to travel (back to the country or to another)? It is
a question that, in essence, involves the application, and no more, of the provisions of the
1987 Constitution:
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 4
except in
the interest of national security, public safety, or public health, as may be provided by law.
_______________
1 Decision, 4.
2 Seesupra,1-4.
3 Supra,2.
4 CONST., art. III, sec. 6.
723
VOL. 177, SEPTEMBER 15, 1989 723

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.5 In other words, executive power is more than the sum of specific powers so
enumerated.
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 “[s]overeignty
6
resides in the people and all government authority emanates
from them.” [Art. II, Sec. 1.]
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 forbiden by the Constitution or the laws that the needs of the nation demanded [See
Corwin, supra,at 153]. It is a power borne by the President’s duty to preserve and defend the
_______________
5 Decision, supra, 18; emphasis in the original.
6 Supra,20-21.
724

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

7
of discretionary power is unavoidable in any government and is best lodged in
the President].
I am not persuaded.
I.
First: While the Chief Executive exercises *

powers not found expressly in the Charter, but
has them by constitutional implication, the latter must yield to the paramountcy of the Bill
of Rights. According to Fernando: “A regime of constitutionalism is thus unthinkable
without an assurance of the primacy of a bill of rights. Precisely a constitution exists to
assure that in the discharge of the governmental functions, the dignity that is the birthright
of every human being is duly safeguarded. To be true to its primordial aim, a constitution 8
must lay down the boundaries beyond which lies forbidden territory for state action.”
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 . . 9 . rests . . . not
upon the text of the [Constitution] . . . but upon a mere inference therefrom.” 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 10
changing the same—other than what11
it explicitly
says already (“limits prescribed by law” or “upon lawful order of the court” )—the
_______________
7 Supra,21-22.
* But see Cruz, J., Dissenting.
8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
9 Republic v. Quasha, No. L-30299, August 17, 1972, 46 SCRA 160, 169.
10 CONST.,supra.
11 Supra.
725
VOL. 177, SEPTEMBER 15, 1989 725

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 12order of the court,
or when necessary in the interest of national security, public safety, or public health.
Under this provision, the right may be abated: (1) upon a lawful court order, 13
or (2) “when
necessary in the interest of national security, public safety, or public health.” Arguably, the
provision enabled the Chief Executive (Marcos) to moderate movement of citizens, which,
Bernas says, justified such 14practices as “hamletting”, forced relocations, or the
establishment of free-fire zones.
The new Constitution, however, so it clearly appears, has divested the Executive’s
implied power. And,
15
as it so appears, the right may be impaired only “within the limits
provided by law.” The President is out of the picture.
Admittedly,
16
the Chief Executive
17
is the “sole” judge of all matters affecting national
security and foreign affairs; the Bill of Rights—precisely, a form of check against
excesses of
_______________
12 CONST. (1973), art. IV, sec. 5.
13 Supra.
14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263 (1987 ed.)
15 CONST. (1987), art. III, sec. 6, supra.
16 See supra, art. VII, sec. 18.
17 See Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.
726

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
Commanderin-Chief.)
Second: Assuming,ex hypothesi, that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to
the “national security, public safety, or public health?” What appears in the records are
vehement insistences that Marcos does pose a threat to the national good—and yet, at the
same time, we have persistent claims, made by the military top brass during the lengthy
closed-door hearing on July 25, 1989, that “this Government will not fall” should the
former first family in exile step on Philippine soil. Which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive.18
The Court itself must be content that the threat is not only clear, but more so,
present.
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 20
is not of balancing the general welfare against the exercise of
individual liberties. As I indicated, not one shred of evidence, let alone solid evidence,
other than
_______________
18See 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.
727
VOL. 177, SEPTEMBER 15, 1989 727

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 my21brethren declaim, “calls for the exercise of the
President’s power as protector of peace.”
This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he was.
That “[t]he power of the President to keep the peace is not limited merely to exercising
the commander-in-chief powers in times of22 emergency or to leading the State against
external and internal threats to its existence,” 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, 23a Charter that has perceptibly reduced the Executive’s powers vis-a-vis its
1973 counterpart.
II.
The undersigned would be lacking in candor to conceal his dislike,

**
to say the least, for
Marcos. Because of Marcos, the writer of this dissent lost a son. His son’s only “offense”
was that he openly and unabatedly criticized the dictator, his associates, and his military
machinery. He would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was held incommunicado a
greater part of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic
asthma. The deplorable conditions of his imprisonment exacerbated his
_______________
21 Supra.
22 Supra,22.
23 See CONST. (1987), art. VII, sec. 18, supra.
** 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 common criminals from
January to August, 1976.
728

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,” 24and placed under house arrest, for “inciting to sedition” and “rumor
mongering,” 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
_______________
24SPI No. 79-347 (“For: Violation of Presidential Decree No. 90 and Article 142 of the Revised Penal Code, as
amended”—The Judge Advocate General’s Office, AFP), Special Civil Action, G.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 O. 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,
Respondents—Supreme Court.
729
VOL. 177, SEPTEMBER 19, 1989 729

People vs. Hortillano
25
abode. We would have betrayed our own ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal hatred, fear, founded or
unfounded, and by speculations of the man’s “capacity” “to stir trouble”. Now that the shoe
is on the other foot, let no more of human rights violations be repeated against any one,
friend or foe. In a democratic framework, there is no such thing as getting even.
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.
Petition dismissed.
Note.—The exercise of even the preferred freedoms of speech and of expression,

although couched in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests. (Zaldivar vs. Sandiganbayan, G.R. Nos.
79690-707, Oct. 7, 1988.)
——o0o——
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1.1 Marcos Vs Manglapus 09.15.1989

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668 SUPREME COURT REPORTS ANNOTATED

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR.,

VOL. 177, SEPTEMBER 15, 1989 669

Marcos vs. Manglapus

670 SUPREME COURT REPORTS

Marcos vs. Manglapus

VOL. 177, SEPTEMBER 15, 1989 671

Marcos vs. Manglapus

672 SUPREME COURT REPORTS

Marcos vs. Manglapus

VOL. 177, SEPTEMBER 15, 1989 673

Marcos vs. Manglapus

wisdom of his act. . . . [At 479-480.]

FERNAN, C.J., Concurring

674 SUPREME COURT REPORTS

Marcos vs. Manglapus

GUTIERREZ, J., Dissenting

VOL. 177, SEPTEMBER 15, 1989 675

Marcos vs. Manglapus

nation of the question raised to us solely in the President.

676 SUPREME COURT REPORTS

Marcos vs. Manglapus

VOL. 177, SEPTEMBER 15, 1989 677

Marcos vs. Manglapus

CRUZ, J., Dissenting

PARAS, J., Dissenting

678 SUPREME COURT REPORTS

Marcos vs. Manglapus

but there is no showing as to the extent.

PADILLA, J., Dissenting

VOL. 177, SEPTEMBER 15, 1989 679

Marcos vs. Manglapus

SARMIENTO, J., Dissenting

by sheer constitutional implication, prevail over express constitutional commands. “Clearly,” so I

680 SUPREME COURT REPORTS

Marcos vs. Manglapus

VOL. 177, SEPTEMBER 15, 1989 681

Marcos vs. Manglapus

682 SUPREME COURT REPORTS ANNOTATED

VOL. 177, SEPTEMBER 15, 1989 683

a. Is this a political question?

684 SUPREME COURT REPORTS ANNOTATED

3.Have the respondents, therefore, in implementing the President’s decision to bar

VOL. 177, SEPTEMBER 15, 1989 685

There are thus gradations to the question, to wit:

686 SUPREME COURT REPORTS ANNOTATED

governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in

VOL. 177, SEPTEMBER 15, 1989 687

narrow confines in arriving at a solution to the controversy.

688 SUPREME COURT REPORTS ANNOTATED

VOL. 177, SEPTEMBER 15, 1989 689

690 SUPREME COURT REPORTS ANNOTATED

presidency is at any particular moment depends in important measure on who is President.”

VOL. 177, SEPTEMBER 15, 1989 691

692 SUPREME COURT REPORTS ANNOTATED

VOL. 177, SEPTEMBER 15, 1989 693

The Power Involved

694 SUPREME COURT REPORTS ANNOTATED

VOL. 177, SEPTEMBER 15, 1989 695

The Extent of Review

696 SUPREME COURT REPORTS ANNOTATED

VOL. 177, SEPTEMBER 15, 1989 697