person therefrom if such restraint is illegal.
Any restraint which will preclude freedom of action is
[No. 14639. March 25, 1919.]
ZACARIAS VILLAVICENCIO ET AL., petitioners, vs.JUSTO LUKBAN ET AL., respondents.
1. 1.CONSTITUTIONAL LAW; RlGHT OF DOMICILE; LlBERTY; HABEAS CORpus;
CONTEMPT.—One hundred and seventy women, who had lived in the segregated district for
women of ill repute in the city of Manila, were by orders of the Mayor of the city of Manila and
the chief of police of that city isolated from society and then at night, without their consent and
without any opportunity to consult with friends or to defend their rights, were forcibly hustled on
board steamers for transportation to regions unknown. No law, order, or regulation authorized the
Mayor of the city of Manila or the chief of the police of that city to force citizens of the Philippine
Islands to change their domicile from Manila to another locality. Held: That the writ of habeas
corpus was properly granted, and that the Mayor of the city of Manila who was primarily
responsible for the deportation, is in contempt of court for his failure to comply with the order of
the court.
1. 2.ID.; ID.; ID.; ID.—The remedies of the unhappy victims of official oppression are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus. A civil action was never intended effectively
and promptly to meet a situation in which there is restraint of liberty. That the act may be a crime
and that the person may be proceeded against is also no bar to the institution of habeas corpus
proceedings. Habeas corpus is the proper remedy.
1. 3.ID.; ID.; ID.; ID.—These women, despite their being in a sense lepers of society, are nevertheless
not chattles, but Philippine citizens protected by the same constitutional guaranties as are other
citizens.
1. 4.ID.; ID.—The privilege of domicile is a principle often protected by constitutions and deeply
imbedded in American jurisprudence.
1. 5.HABEAS CORPUS; NATURE.—The writ of habeas corpus was devised and exists as a speedy
and effectual remedy to relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom.
1. 6.ID. ; PARTIES.—Where it is impossible for a party to sign an application for the writ of habeas
corpus, it is proper for the writ to be submitted by some person in his behalf.
0
1. 7.ID.; JURISDICTION.—It is a general rule of good practice that, to avoid unnecessary expense
and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the
Court of First Instance.
779
VOL. 39, MARCH 25, 1919. 779
Villavicencio vs. Lukban.
1. 8.ID. ; ID.—The writ of habeas corpus may be granted by the Supreme Court or any judge thereof
enforcible anywhere in the Philippine Islands.
1. 9.ID.; ID.—Whether the writ shall be made returnable before the Supreme Court or before an
inferior court rests in the discretion of the Supreme Court and is dependent on the particular
circumstances.
1. 10.ID.; RESTRAINT OF LIBERTY.—A prime specification of an application for a writ of habeas
corpus is restraint of liberty. The essential objects and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a
ORIGINAL ACTION in the Supreme Court. Habeas Corpus.
sufficient.
1. 11.ID.; ID.—The forcible taking of these women from Manila by officials of that city, who handed
them over to other parties, who deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been imprisoned. The restraint of liberty
which began in Manila continued until the aggrieved parties were returned to Manila and released
or until they freely and truly waived this right.
1. 12.ID.; ID.—The true principle should be that if the respondent is within the jurisdiction of the
court and has it in his power to obey the order of the court, and thus to undo the wrong that he has
inflicted, he should be compelled to do so.
1. 13.ID.; ID.—Even if the party to whom the writ is addressed has illegally parted with the custody
of a person before the application for the writ, is no reason why the writ should not issue.
1. 14.ID. ; ID.—The place of confinement is not important to the relief if the guilty party is within the
reach of process so that by the power of the court he can be compelled to release his grasp.
1. 15.ID.; COMPLIANCE WITH WRIT.—For respondents to fulfill the order of the court granting
the writ of habeas corpus, three courses were open: (1) They could have produced the bodies of
the persons according to the command of the writ; (2) they could have shown by affidavit that on
account of sickness or infirmity these ,persons could not safely be brought before the Court; or (3)
they could have. presented affidavits to show that the parties in question or their attorney waived
the right to be present. (Code of Criminal Procedure, sec. 87.)
1. 16.CONTEMPT OF COURT.—The power to punish for contempt of court should be exercised on
the preservative and not on the vindictive principle. . Only occasionally should a court invoke its
inherent power in order to retain that respect without which the administration of justice must
falter or fail.
780
78 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
1. 17.ID.—When one is commanded to produce a certain person and does not do so, and does not
offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of
contempt, and must order him either imprisoned or fined.
1. 18.ID.—An officer's failure to produce the body of a person in obedience to a writ -of habeas
corpus, when he has power to do so, is contempt committed in the face of the court.
1. 19.GOVERNMENT OF THE PHILIPPINE ISLANDS; A GOVERNMENT OF LAWS.—The
Government of the Philippine Islands is a. government of laws. The court will assist in retaining it
as a government of laws and not of men.
1. 20.ID, ; ID.—No official, however high, is above the law.
1. 21.ID.; ID.—The courts are the forum which functionate to safeguard individual liberty and to
punish official transgressors.
The facts are stated in the opinion of the court.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with in
this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if
there is kept in the forefront of our minds the basic principles of popular government,. and if we
give expression to the paramount purpose for which the courts, as an independent power of such a
government, were constituted. The primary question is—Shall the judiciary permit a government
of men instead of a government of laws to be set up in the Philippine Islands ?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been
781
VOL. 39, MARCH 25, 1919. 781
Villavicencio vs. Lukban.
permitted for a number of years in the city of Manila, closed. Between October 16 and October 25,
1918, the women were kept confined to their houses in the district by the police. Presumably,
during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for
sending the women to Davao, Mindanao, as laborers; with some government office for the use of
the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers,.
At any rate, about midnight of October 25, the police, acting pursuant to orders from the. chief of
police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the
houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that
awaited their arrival. The women were given no opportunity to collect their belongings, and
apparently were under the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a lif e in Mindanao. They had
not been asked if they wished to depart from that region and had neither directly nor indirectly
given their consent to the deportation. The involuntary guests were received on board the steamers
by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two
steamers with their unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano
Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the
case, had no previous notification that the women were prostitutes who had been expelled from the
city of Manila. The further happenings to these women and the serious charges growing out of
alleged ill-treatment are of public interest, but are not essential to the disposition of this case.
Suffice it to say, generally, that some of the women married, others assumed more or less
clandestine relations with men, others went to
782
782 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
work in different capacities, others assumed a life unknown and disappeared, and a goodly portion
found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting
in to Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application f or habeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of the women who were
sent away from Manila to Davao and, as the same questions concerned them all, the application
will be considered as including them. The application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared f or
the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted because the petitioners were not proper
parties, because the action should have been begun in the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the respondents did not have any of the women under
their custody or control, and because their jurisdiction did not extend beyond the boundaries of the
city of. Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were
destined to be laborers, at good salaries, on the haciendasof Yñigo and Governor Sales. In open
court, the fiscal admitted, in answer to a question of a member of the court, that these women had
been sent out of Manila without their consent. The court awarded the writ, in an order of
November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano
Yñigo, an hacendero of Davao, to bring bef ore
783
VOL. 39, MARCH 25, 1919. 783
Villavicencio vs. Lukban.
the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense.
On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme
Court sitting as commissioner. On the day named in the order, December 2d, 1918, none of the
persons in whose behalf the writ was issued were produced in court by the respondents. It has
since been shown that three of those who had been able to come back to Manila through their own
efforts, were notified by the police and the secret service to appear before the court. The fiscal
appeared, repeated the facts more comprehensively, reiterated the stand taken by him when
pleading to the original petition. copied a telegram f rom the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto, and telegrams that had passed between the
Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits
showing that the women were contented with their life in Mindanao and did not wish to return to
Manila. Respondent Sales answered alleging that it was not possible to fulfill the order of the
Supreme Court because the women had never been under his control, because they were at liberty
in the Province of Davao, and because they had married or signed contracts as laborers.
Respondent Yñigo answered alleging that he did not have any of the women under his control and
that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on
December 10, 1918, promulgated a second order, which related that the respondents had not
complied with the original order to the satisfaction of the court nor explained their failure to do so,
and therefore directed that those of the women not in Manila be brought before the court by
respondents Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the women should,
in written statements voluntarily made before the judge of first instance of Davao or the clerk of
that court, renounce the right, or unless
784
784 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
the respondents should demonstrate some other legal motives that made compliance impossible. It
was further stated that the question of whether the respondents were in contempt of court would
later be decided and the reasons for the order announced in the final decision.
Before January 13, 1919, f urther testimony including that of a number of the women, of
certain detectives and policemen, and of the provincial governor of Davao, was taken before the
clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of
Davao acting in the same capacity. On January 13, 1919, the respondents technically presented
before the Court the women who had returned to the city through their own efforts and eight others
who had been brought to Manila by the respondents. Attorneys for the respondents, by their
returns, once again recounted the facts and further endeavored to account for all of the persons
involved in the habeas corpus. In subStance, it was stated that the respondents, through their
representatives and agents, had succeeded in bringing from Davao with their consent eight
women; that eighty-one women were found in Davao who, on notice that if they desired they
could return to Manila, transportation free, renounced the right through sworn statements; that
fiftynine had already returned to Manila by other means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to
submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando
Ordax, members of the police f orce of the city of Manila, Feliciano Yñigo, an hacendero of
Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the
city of Manila, in contempt of court. The city fiscal requested that the réplica, al memorandum de
los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the
record.
785
VOL. 39, MARCH 25, 1919. 785
Villavicencio vs. Lukban.
In the second order, the court promised to give the reasons for granting the writ of habeas corpus
in the final decision. We will now proceed to do so.
One f act, and one fact only, need be recalled—these one hundred and seventy women were
isolated from society, and then at night, without their consent and without any opportunity to
consult with friends or to defend their rights, were forcibly hustled on board steamers for
transportation to regions unknown. Despite the feeble attempt to prove that the women left
voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of
the police and the constabulary was deemed necessary and that these officers of the law chose the
shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the question—By authority of what
law did the Mayor and the Chief of Police presume to act in deporting by duress these persons
from Manila to another distant locality within the Philippine Islands? We turn to the statutes and
we find—
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
Congress. The Governor-General can order the eviction of undesirable aliens after a hearing from
the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances
of the city of Manila provide for the conviction and punishment by a court of justice of any person
who is a common prostitute. Act No, 899 authorizes the return of any citizen of the United States,
who may have been convicted of vagrancy, to the homeland. New York and other States have
statutes providing for the commitment to the House of Refuge of women convicted of being
common prostitutes. Always a law! Even when the health authorities compel vaccination, or
establish a quarantine, or place a leprous person in the Culion leper colony, it is done pur-
786
786 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
suant to some law or order. But one can search in vain for any law, order, or regulation, which
even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force
citizens of the Philippine Islands—and these women despite their being in a sense lepers of society
are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties
as are other citizens—to change their domicile from Manila to another locality. On the contrary,
Philippine penal law specifically punishes any public officer who, not being expressly authorized
by law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as
to be found in the Bill of Rights of the Constitution. Under the American constitutional system,
liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary
in nature as not even to require a constitutional sanction. Even the Governor-General of the
Philippine Islands, even the President of the United States, who has often been said to exercise
more power than any king or potentate, has no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at their mere behest or even for the
most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and
chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If
these officials can take to themselves such power, then any other official can do the same. And if
any official can exercise the power, then all persons would have just as much right to do so. And if
a prostitute could be sent against her wishes and under no law f rom one locality to another within
the country, then officialdom can hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that—"No freeman shall be taken,
or imprisoned, or be
787
VOL. 39, MARCH 25, 1919. 787
Villavicencio vs. Lukban.
disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise
destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by
the law of the land. We will sell to no man, we will not deny or def er to any man either justice or
right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 Eng. Stat. at Large, 7.) No official, no matter
how high, is above the law. The courts are the forum which functionate to safeguard individual
liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion
of the Supreme Court of the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives." (U. S. vs. Lee [1882], 106 U. S., 196, 220.) "The very
idea," said Justice Matthews of the same high tribunal in another case, "that one man may be
compelled to hold his life, or the means of living, or any material right essential to the enjoyment
of life, at the mere will of another, seems to be intolerable in any country where freedom prevails,
as being the essence of slavery itself." (Yick Wo vs. Hopkins[1886], 118 U. S., 356, 370.) All this
explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very
beginning that the primary question was whether the courts should permit a government of men or
a government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the
citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup
money damages. It may still rest with the parties in interest to pursue such an action, but it was
never intended effectively and promptly to meet any such situation as that now before us.
788
788 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
"Any public officer not thereunto authorized by law or by regulations of a general character in force in the
Philippines who shall banish any person to a place more than two hundred kilometers distant from his
domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three
hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.
"Any public officer not thereunto expressly authorized by law or by regulation of a general character in
force in the Philippines who shall compel any person to change his domicile or residence shall suffer the
penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two
hundred and fifty pesetas" (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
any public officer has violated this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which
will later be referred to—"It would be a monstrous anomaly in the law if to an application by one
unlawfully confined, to be restored to his liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might be continued indefinitely until the guilty party was
tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson
[1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient
defense of personal freedom. Any further rights of the parties are left untouched by
789
VOL. 39, MARCH 25, 1919. 789
Villavicencio vs. Lukban.
decision on the writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific
objections to its issuance in this instance. The fiscal has argued (1) that there is a defect in parties
petitioners, (2) that the Supreme Court should not assume jurisdiction, and (3) that the persons in
question are not restrained of their liberty by respondents, It was finally suggested that the
jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city
limits and that perf orce they could not bring the women from Davao.
The first defense was not pressed with any vigor by counsel. The petitioners were relatives
and friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for the
writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of
Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the
duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's
jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be
made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked f or in the Court of First
Instance of Davao or should have been made returnable before that court. It is a general rule of
good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus
should be presented to the nearest judge of the court of first instance. But this is not a hard and fast
rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof
enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil
Procedure, sec. 526.) Whether the writ shall be made returnable
790
790 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court
and is dependent on the particular circumstances. In this instance it was not shown that the Court
of First Instance of Davao was in session, or that the women had any means by which to advance
their plea bef ore that court. On the other hand, it was shown that the petitioners with their
attorneys, and the two original respondents with their attorney, were in Manila; it was shown that
the case involved parties situated in different parts of the Islands; it was shown that the women
might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate
court. The failure of the superior court to consider the application and then to grant the writ would
have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ
was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police
did not extend beyond the city limits. At first blush, this is a tenable position. On closer
examination, acceptance of such dictum is f ound to be perversive of the first principles of the writ
of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The
essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible
taking of these women from Manila by officials of that city, who handed them over to other
parties, who deposited them in a distant region, deprived these women of freedom of locomotion
just as effectively as if they had been imprisoned. Placed in Davao without either money or
personal belongings, they were prevented from exercising the liberty of going when
791
VOL. 39, MARCH 25, 1919. 791
Villavicencio vs. Lukban.
and where they pleased. The restraint of liberty which began in Manila continued until the
aggrieved parties were returned to Manila and released or until they freely and truly waived this
right.
Consider for a moment what an agreement with such a defense would mean. The chief
executive of any municipality in the Philippines could forcibly and illegally take a private citizen
and place him beyond the boundaries of the municipality, and then, when called upon to defend
his official action, could calmly fold his hands and claim that the person was under no restraint
and that he, the official, had no jurisdiction over this other municipality. We believe the true
principle should be that, if the respondent is within the jurisdiction of the court and has it in his
power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be
compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the
custody of a person before the application for the writ is no reason why the writ should not issue.
If the mayor and the chief of police, acting under no authority of law, could deport these women
from the city of Manila to Davao, these same officials must necessarily have the same means to
return them from Davao to Manila. The respondents, within the reach of process, may not be
permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to
avow the act with impunity in the courts, while the person who has lost her birthright of liberty has
no effective recourse. The great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities f ails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to
whether or not a writ of habeas corpus would issue from the Supreme Court to a person within the
jurisdiction of the State to bring into the
792
792 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
State a minor child under guardianship in the State, who has been and continues to be detained in
another State. The membership of the Michigan Supreme Court at this time was notable. It was
composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the
question presented the court was equally divided. Campbell, J,, with whom concurred Martin, C.
J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges
and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the
opinion of Justice Campbell was predicated to a large extent on his conception of the English
decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only
the f ollowing eloquent passages from the opinion of Justice Cooley are quoted:
"I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on .the petition
which was laid before us. * * *
"It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations,
until Coke could declare in his speech on the petition of right that 'Magna Charta was such a fellow that he will
have no sovereign,' and after the extension of its benefits and securities by the petition of right, bill of rights
and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of
personal liberty, which is; the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is
important that it be determined without delay, that the legislature may apply the proper remedy, as I can not
doubt they would, on the subject being brought to their notice. * * *
"The second proposition—that the statutory provisions are confined to the case of imprisonment within
the state—seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the
case in England that the court of king's bench derived its jurisdiction to
793
VOL. 39, MARCH 25, 1919. 793
Villavicencio vs. Lukban.
issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the
observance of rights which existed. * * *
"The important f act to be observed in regard to the mode of procedure upon this writ is, that it is directed
to and served upon, not the person confined, but his jailor. It does not reach the former except through the
latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the
court relieves him by compelling the oppressor to release his constraint The whole force of the writ is spent
upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are
fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to,
they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the
relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to
release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the
limits of the state, except as greater distance may affect it. The important question is, where is the power of
control exercised? And I am aware of no other remedy." (In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs, People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been
taken out of England by the respondent. A writ of habeas corpus was issued by the Queen's Bench
Division upon the application of the mother and her husband directing the defendant to produce
the child. The judge at chambers gave defendant until a certain date to produce the child, but he
did not do so. His return stated that the child before the issuance of the writ had been handed over
by him to another; that it was no longer in his custody or control, and that it was impossible
794
794 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord
Esher, M. R., said:
"A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the
defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately
after the receipt of the writ, together with the cause of her being taken and detained. That is a command to
bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by reason of his having lawfully parted with the
possession of the child before the issuing of the writ, the defendant had no longer power to produce the child,
that might be an answer; but in the absence of any lawful reason he is bound to produce the child, and, if he
does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been
made in argument to shift the question of contempt to some anterior period f or the purpose of showing that
what was done at some time prior to the writ cannot be 'a contempt. But the question is not as to what was
done bef ore the issue of the writ. The question is whether there has been a contempt in disobeying the writ
after it was issued by not producing the child in obedience to its commands." (The Queen vs.Barnardo [1889],
23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.],
233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to 'the
defendant to have before the circuit court of the District of Columbia three colored persons, with
the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased
the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond
the District of Columbia before the service of the writ of habeas corpus,
795
VOL. 39, MARCH 25, 1919. 795
Villavicencio vs. Lukban.
and that they were then beyond his control and out of his custody. The evidence tended to show
that Davis had removed the negroes because he suspected they would apply for a writ of habeas
corpus. The court held the return to be evasive and insufficient, and that Davis was bound to
produce the negroes, and Davis being present in court, and refusing to produce them, ordered that
he be committed to the custody of the marshall until he should produce the negroes, or be
otherwise discharged in due course of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the negroes had run away and been lodged in
jail in Maryland. Davis produced the two negroes on the last day of the term. (United
States vs. Davis [1839], 5 Cranch C. C., 622, Fed. Cas. No. 14926. See
also Robb vs. Connolly [1883], 111 U. S., 624; Church on Habeas Corpus, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defenses offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondents complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, 'and if it be found that they did not, whether
the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yñigo to present the persons named in the writ bef ore the court on December
2,1918. The order was dated November 4, 1918. The respondents were thus given ample time,
practically one month, to comply with the writ. As far as the record discloses, the Mayor of the
city of Manila waited until the 21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who desired to return to Manila, but who
should not be permitted to do so because of having contracted debts. The half-hearted effort natur-
796
796 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
ally resulted in none of the parties in question being brought bef ore the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1)
They could have produced the bodies of the persons according to the command of the writ; or (2)
they could have shown by affidavit that on account of sickness or infirmity those persons could
not safely be brought before the court; or (3) they could have presented affidavits to show ,that the
parties in question or their attorney waived the right to be present. (Code of Criminal Procedure,
sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted; they
did not show impossibility of performance; and they did not present writings that waived the right
to be present by those interested. Instead a few stereotyped affidavits purporting to show that the
women were contented with their life in Davao, some of which have since been repudiated by the
signers, were appended to the return. That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila is demonstrated by the fact that
during this time they were easily to be found in the municipality of Davao, and that about this
number either returned at their own expense or were produced at the second hearing by the
respondents.
The court, at the time the return to its first order was made, would have been warranted
summarily in finding the respondents guilty of contempt of court, and in sending them to jail until
they obeyed the order. Their excuses for the non-production of the persons were far from
sufficient. The authorities cited herein pertaining to somewhat similar facts all tend to indicate
with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that,
having brought about that state of things by his own illegal act, he must take the
consequences; and we said that he was bound to use every effort to get the child back; that he must
do much more than
797
 VOL. 39, MARCH 25, 1919. 797
Villavicencio vs. Lukban.
write letters for the purpose; that he must advertise in America, and even if necessary himself go
after the child, and do everything that mortal man could do in the matter; and that the court would
only accept clear proof of an absolute impossibility by way of excuse." In other words, the return
did not show that every possible effort to produce the women was made by the respondents. That
the court forebore at this time to take drastic action was because it did not wish to see presented to
the public gaze the spectacle of a clash between executive officials and the judiciary, and because
it desired to give the respondents another chance to demonstrate their good faith and to mitigate
their wrong.
In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in rounding up the women, and a steamer
with free transportation to Manila was provided. While charges and counter-charges in such a
bitterly contested case are to be expected, and while a critical reading of the record might reveal a
failure of literal fulfillment with our mandate, we come to conclude that there is a substantial
compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to
see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should
receive an executive investigation. If any particular individual is still restrained of her liberty, it
can be made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it,
nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of
the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and
Fernando Ordax, members of the police force of the city. of Manila, Modesto Joaquin, the attorney
for the Bureau of Labor, Feliciano Yñigo, an
798
798 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on
the vindictive principle. Only occasionally should the court invoke its inherent power in order to
retain that respect without which the administration of justice must falter or fail. Nevertheless
when one is commanded to produce a certain person and does not do so, and does not offer a valid
excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt,
and must order him either imprisoned or fined. An officer's failure to produce the body of a person
in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in
the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In rePatterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible exception of the first
named, has flatly disobeyed the court by acting in opposition to its authority, Respondents
Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while,
under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful
mitigating circumstance. The hacendero Yñigo appears to have been drawn into the case through a
misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would
seem to have done no more than to fulfill his duty as the legal representative of the city
government. Finding him innocent of any disrespect to the court, his counter-motion to strike from
the record the memorandum of attorney for the petitioners, which brings him into this undesirable
position, must be granted. When all is said and done, as far as this record discloses, the official
who was primarily responsible for the unlawful deportation, who ordered the police to accomplish
the same, who made arrangements for the steamers and the constabulary, who conducted the
negotiations with the
799
VOL. 39, MARCH 25, 1919. 799
Villavicencio vs. Lukban.
Bureau of Labor, and who later, as the head of the city government, had it within his power to
facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city
of Manila. His intention to suppress the social evil was commendable. His methods were unlawful.
His regard for the writ of habeas corpus issued by the court was only tardily and reluctantly
acknowledged. It would be possible to turn to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to
many thousands of pesos, and in addition to deal with him as for a contempt. Some members of
the court are inclined to this stern view. It would also be possible to find that since respondent
Lukban did comply substantially with the second order of the court, he has purged his contempt of
the first order. Some members of the court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass the administration of justice to such an
extent that his later activity may be considered only as extenuating his conduct. A nominal fine
will at once command such respect without being unduly oppressive—such an amount is P100.
In résumé—as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in
contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office
of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The
motion of the fiscal of the city of Manila to strike from the record the  Réplica al Memorandum de
los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents! So
ordered.
In concluding this tedious and disagreeable task, may
800
800 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
we not be permitted to express the hope that this decision may serve to bulwark the f ortifications
of an orderly government of laws and to protect. individual liberty from illegal encroachment.
Arellano, C. J., Avanceña, and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of
the habeas corpus proceeding against Just Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige
a great number of women of various ages, inmates of the houses of prostitution situated in
Gardenia Street, district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of
public houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when
more than one hundred and fifty women were assembled and placed aboard a steamer and
transported to Davao, considering that the existence of the said houses of prostitution has been
tolerated for so long a time, it is undeniable that the mayor of the city, in proceeding in the manner
shown, acted without authority of any legal provision which constitutes an exception to the laws
guaranteeing the liberty and the individual rights of the residents of the city of Manila.
We do not believe in the pomp and ostentation of force displayed by the police in complying
with the order of the mayor of the city; neither do we believe in the necessity of taking them to the
distant district of Davao. The said governmental authority, in carrying out his intention to suppress
the segregated district or the community formed by those women in Gardenia Street, could have
obliged the said women to return to their former residences in this city or in the provinces, without
the necessity of transporting them to Mindanao; hence the said official is obliged to bring back the
women who are still in Davao so that
801
VOL. 39, MARCH 25, 1919. 801
Villavicencio vs. Lukban.
they may return to the places in which they lived prior to their becoming inmates of certain houses
in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not
find any apparent disobedience and marked absence of respect in the steps taken by the mayor of
the city and his subordinates, if we take into account the difficulties encountered in bringing the
said women who were free at Davao and presenting them before this court within the time fixed,
inasmuch as it does not appear that the said women were living together in a given place. It was
not because they were really detained, but because on the first days there were no houses in which
they could live with a relative independent from one another, and as a proof that they were free a
number of them returned to Manila and the others succeeded in living separate from their
companions who continued living together.
To determine whether or not the mayor acted with a good purpose and legal object and
whether he has acted in good or bad faith in proceeding to dissolve the said community of
prostitutes and to oblige them to change their domicile, it is necessary to consider not only the
rights and interests of the said women and especially of the patrons who have been directing and
conducting such a reproachable enterprise and shameful business in one of the suburbs of this city,
but also the rights and interests of the very numerous people of Manila where relatively a few
transients accidentally and for some days reside, the inhabitants thereof being more than three
hundred thousand (300,000) who can not, with indifference and without repugnance, live in the
same place with so many unfortunate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social morality
are to be taken into account, it is not possible to sustain that it is legal and permissible to establish
a house of pandering or prostitution in the midst of an enlightened population, for, although there
were no positive laws prohibiting the existence of such
802
802 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
houses within a district of Manila, the dictates of common sense and dictates of conscience of its
inhabitants are sufficient to warrant the public administration, acting correctly, in exercising the
inevitable duty of ordering the closing and abandonment of a house of prostitution ostensibly open
to the public, and of obliging the inmates thereof to leave it, although such a house is inhabited by
its true owner who invokes in his behalf the protection of the constitutional law guaranteeing his
liberty, ,his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot
invoke in his favor the constitutional law which guarantees his liberty and individual rights, should
the administrative authority order his hospitalization, reclusion, or concentration in a certain island
or distant point in order to free from contagion the great majority of the inhabitants of the country
who fortunately do not have such diseases. The same reasons exist or stand good with respect to
the unfortunate women dedicated to prostitution, and such reasons become stronger because the
first persons named have contracted their diseases without their knowledge and even against their
will, whereas the unfortunate prostitutes voluntarily adopted such manner of living and
spontaneously accepted all its consequences, knowing positively that their constant intercourse
with men of all classes, notwithstanding the cleanliness and precaution which they are wont to
adopt, gives way to the spread or multiplication of the disease known as syphilis, a venereal
disease, which, although it constitutes a secret disease among men and women, is still prejudicial
to the human species in the same degree, scope, and seriousness as cholera, tuberculosis, leprosy,
pest, typhoid, and other contagious diseases which produce great mortality and very serious
prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which
can give her sufficient remuneration for her subsistence, prefers to put herself
803
VOL. 39, MARCH 25, 1919. 803
Villavicencio vs. Lukban.
under the will of another woman who is usually older than she is and who is the manager or owner
of a house of prostitution, or spontaneously dedicates herself to this shameful profession, it is
undeniable that she voluntarily and with her own knowledge renounces her liberty and individual
rights guaranteed by the Constitution, because it is evident that she can not join the society of
decent women nor can she expect to get the same respect that is due to the latter, nor is it possible
for her to live within the community or society with the same liberty and rights enjoyed by every
citizen. Considering her dishonorable conduct and life, she should therefore be comprised within
that class which is always subject to the police and sanitary regulations conducive to the
maintenance of public decency and morality and to the conservation of public health, and for this
reason it should not be permitted that the unfortunate women dedicated to prostitution evade the
just orders and resolutions adopted by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but those
who have been worrying so much about the prejudice resulting from a governmental measure,
which being a very drastic remedy may be considered arbitrary, have failed to consider with due
reflection the interests of the inhabitants of this city in general and particularly the duties and
responsibilities weighing upon the authorities which administer and govern it; they have forgotten
that many of those who criticize and censure the mayor are fathers of families and are in duty
bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the
abnormal life they assumed, were obliged to change their residence not by a private citizen but by
the mayor of the city who is directly responsible for the conservation of public health and social
morality, the latter could take the step he had taken, availing himself of the services of the police
in good faith and only with the purpose of protecting the immense majority of the
804
804 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
population from the social evils and diseases which the houses of prostitution situated in Gardenia
Street have been producing, which houses have been constituting for years a true center for the
propagation of veneral diseases and other evils derived therefrom. Hence, in ordering the
dissolution and abandonment of the said houses of prostitution and the change of the domicile of
the inmates thereof, the mayor did not in bad faith violate the constitutional law which guarantees
the liberty and the individual rights of every Filipino, inasmuch as the women petitioners do not
absolutely enjoy the said liberty and rights, the exercise of which they have voluntarily renounced
in exchange for the free practice of their shameful profession.
In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them
prejudicial to the people, although it is true that in the execution of such measures more
humane :and less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but
such procedures have always had in view the ultimate object of the Government for the sake of the
community, that is, putting an end to the living together in a certain place of women dedicated to
prostitution and changing their domicile, with the problematical hope that they adopt another
manner of living which is better and more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo
Lukban is obliged to take back and restore the said women who are at present found in Davao, and
who desire to return to their former respective residences, not in Gardenia Street, Sampaloc
District, with the exception of the prostitutes who should expressly make known to the clerk of
court their preference to reside in Davao, which manifestation must be made under oath. This
resolution must be transmitted to the mayor within the shortest time possible f or its due
compliance. The costs shall be charged de officio.
805
VOL. 39, MARCH 25, 1919. 805
Villavicencio vs. Lukban.
ARAULLO, J., dissenting in part:
1 regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed,
according to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent
imposition upon him of a nominal fine of ?100.
In the said decision, it is said:
"The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano
Yñigo to present the persons named in the writ before the court on December 2,1918. The order was dated
November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the
writ. As far as the record discloses, the mayor of the city of Manila waited until the 21st of November before
sending a telegram to the provincial governor of Davao. According to the response of the Attorney for the
Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila,
but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally
resulted in none of the parties in question being brought before the court on the day named."
In accordance with section 87 of General Orders No. 58, as is said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1) produced the
bodies of the persons according to the command of the writ; (2) shown by affidavits that on
account of sickness or infirmity the said women could not safely be brought before this court; and
(3) presented affidavits to show that the parties in question or their lawyers waived their right to be
present. According to the same decision, the said respondents "* * * did not produce the bodies of
the persons in whose behalf the writ was granted; did not show impossibility of performance; and
did not present writings that waived the right to be present by those interested. Instead, a few
stereotyped
806
806 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
affidavits purporting to show that the women were contented with their life in Davao, some of
which have since been repudiated by the signers, were appended to the return. That through
ordinary diligence a considerable number of the women, at least sixty, could have been brought
back to Manila is demonstrated by the fact that during this time they were easily to be found in
,the municipality of Davao, and that about this number either returned at their own expense or
were produced at the second hearing by the respondents."
The majority opinion also recognized that, "The court, at the time the return to its first order
was made, would have been warranted summarily in finding the respondent guilty of contempt of
court, and in sending them to jail until they obeyed the order. Their excuses for the non production
of the persons were far from sufficient." To corroborate this, the majority decision cites the case of
the Queen vs.Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did
not show that every possible effort to produce the women was made by the respondents."
When the said return by the respondents was made to this court in banc and the case
discussed, my opinion was that Mayor Lukban should have been immediately punished for
contempt. Nevertheless, a second order referred to in the decision was issued on December 10,
1918, requiring the respondents to produce before the court, on January 13, 1919, the women who
were not in Manila, unless they could show that it was impossible to comply with the said order on
the two grounds previously mentioned. With respect to this second order, the same decision has
the following to say:
"In response to the second order of the court, the respondents appear to have become more zealous and to have
shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free transportation to Manila was
provided. While charges and countercharges in such a bitterly con-
807
VOL. 39, MARCH 25, 1919. 807
Villavicencio vs. Lukban.
tested case are to be expected, and while a critical reading of the record might reveal a failure of literal
fulfilment with our mandate, we come to conclude that there is a substantial compliance with it."
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of
the issuance of the first order on November 4th till the 21st of the same month bef ore taking the
first step f or compliance with the mandate of the said order; he waited till the 21st of November,
as the decision says, before he sent a telegram to the provincial governor of Davao and naturally
this half-hearted effort, as is so qualified in the decision, resulted in that none of the women
appeared before this court on December 2d. Thus, the said order was not complied with, and in
addition to this noncompliance there was the circumstance that seven of the said women having
returned to Manila at their own expense before the said second day of December and being in the
antechamber of the court room, which fact was known to Chief of Police Hohmann, who was then
present at the trial and to the attorney for the respondents, were not produced before the court by
the respondents nor did the latter show any effort to present them, in spite of the fact that their
attention was called to this particular by the undersigned.
The result of the said second order was, ,as is said in the same decision, that the respondents,
on January 13th, the day fixed for the production of the women before this court, presented
technically the seven (7) women above-mentioned who had returned to the city at their own
expense and the other eight (8) women whom the respondents themselves brought to Manila,
alleging moreover that their agents and subordinates succeeded in bringing them from Davao with
their consent; that in Davao they found eighty-one (81) women who, when asked if they desired to
return to Manila with free transportation, renounced such a right, as is shown in the affidavits
presented by the respondents to this effect; that, through other means, fifty-nine (59) women have
808
808 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
already returned to Manila, but notwithstanding the efforts made to find them it was not possible
to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and
eighty-one (181) women who, as has been previously said, have been illegally detained by Mayor
Lukban and Chief of Police Hohmann and transported to Davao against their will, only eight (8)
have been brought to Manila and presented before this court by the respondents in compliance
with the said two orders. Fifty-nine (59) of them have returned to Manila through other means not
furnished by the respondents, twenty-six of whom were brought by the attorney for the petitioners,
Mendoza, on his return from Davao. The said attorney paid out of his own pocket the
transportation of the said twenty-six women. Adding to these numbers the other seven (7) women
who returned to this city at their own expense before January 13 we have a total of sixty-six (66),
which evidently proves, on the one hand, the falsity of the allegation by the respondents in their
first answer at the trial of December 2, 1918, giving as one of the reasons for their inability to
present any of the said women that the latter were content with their life in Mindanao and did not
desire to return to Manila; and, on the other,.that the respondents, especially the first named, that is
Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with the
orders issued by this court, could bring before December 2d, the date of the first hearing of the
case, as well as before January 13th, the date fixed for the compliance with the second order, if not
the seventy-four (74) women already indicated, at least a great number of them, or at least sixty
(60) of them, as is said in the majority decision, inasmuch as the said respondent could count upon
the aid of the Constabulary forces and the municipal police, and had transportation facilities for
the purpose. But the said respondent mayor brought only eight (8) of the women before this court
on January 13th. This fact can not, in my judgment, with due respect to the majority opinion,
justify the
809
VOL. 39, MARCH 25, 1919. 809
Villavicencio vs. Lukban.
conclusion that the said respondent has substantially complied with the second order of this court,
but on the other hand demonstrates that he has not complied with the mandate of this court in its
first and second orders; that neither of the said orders has been complied with by the respondent
Justo Lukban, Mayor of the city of Manila, who is, according to the majority decision, principally
responsible f or the contempt, to which conclusion I agree. The conduct of the said respondent
with respect to the second order confirms the contempt committed by non-compliance with the
first order and constitutes a new contempt because of non-compliance with the second, because the
production of only eight (8) of the one hundred and eighty-one (181) women who have been
illegally detained by virtue of his order and transported to Davao against their will, committing the
twenty-six (26) women who could not be found in Davao, demonstrates in my opinion that,
notwithstanding the nature of the case which deals with the remedy of habeas corpus, presented
by the petitioners and involving the question whether they should or not be granted their liberty,
the respondent has not given due attention to the same nor has he made any effort to comply with
the second order. In other words, he has disobeyed the said two orders; has despised the authority
of this court; has failed to give the respect due to justice; and lastly, he has created and placed
obstacles to the administration of justice in the said habeas corpusproceeding, thus preventing,
because of his notorious disobedience, the resolution of the said proceeding with the promptness
which the nature of the same required.
"Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and he is
guilty of contempt whose conduct is such as tends to bring the authority and administration of the law into
disrespect or disregard. * * *" (Ruling Case Law, vol. 6, p. 488.)
"It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless
the defendant is unable to comply therewith." (Ruling Case Law vol. 6, p. 502.)
810
810 PHILIPPINE REPORTS ANNOTATED
Villavicencio vs. Lukban.
"It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to obstruct
the service of legal process. If a person hinders or prevents the service of process by deceiving the officer or
circumventing him by any means, the result is the same as though he had obstructed by some direct means."
(Ruling Case Law, vol. 6, p. 503.)
"While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the
law and for the means it has provided in civilized communities for establishing justice, since true respect never
comes in that way, it is apparent nevertheless that the power to enforce decorum in the courts and obedience to
their orders and just measures is so essentially a part of the life of the courts that it would be difficult to
conceive of their usefulness or efficiency as existing without it. Therefore it may be said generally that where
due respect f or the courts as ministers of the law is wanting, a necessity arises for the use of compulsion, not,
however, so much to excite individual respect as to compel obedience or to remove an unlawful or
unwarranted interference with the administration of justice." /Ruling Case Law, vol. 6, p. 487.)
"The power to punish for contempt is as old as the law itself, and has been exercised from the earliest
times. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his
ministers,  the law-making power, or the courts. In the American states the power to punish for contempt, so far
:
as the executive department and the ministers of state are concerned, and in some degree so f ar as the
legislative department is concerned, is obsolete. but it has been almost universally preserved so far as regards
the judicial department. The power which the courts have of vindicating their own authority is a necessary
incident to every court of justice, whether of record or not; and the authority for issuing attachments in a
proper case for contempts out of court, it has been declared, stands upon the same immemorial usage as
supports the whole fabric
760 SUPREME COURT REPORTS ANNOTATED
Silverio vs. Court of Appeals
G.R. No. 94284. April 8, 1991. *
811
VOL. 39, MARCH 25, 1919. 811
Villavicencio vs. Lukban.
of the common law. * * *" (Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been
caused by noncompliance with the. same orders on the part of the respondent Justo Lukban; the
damages which might have been suffered by some of the women illegally detained, in view of the
f act that they were not brought to Manila by the respondents to be presented before the court and
of the further fact that some of them were obliged to come to this city at their own expense while
still others were brought to Manila by the attorney for the petitioners, who paid out of his own
pocket the transportation of the said women; and the delay which was necessarily incurred in the
resolution of the petition interposed by the said petitioners and which was due to the fact that the
said orders were not opportunely and duly obeyed and complied with, are circumstances which
should be taken into account in imposing upon the respondent Justo Lukban the penalty
corresponding to the contempt committed by him, a penalty which, according to section 236 of the
Code of Civil Procedure, should consist of a fine not exceeding P1,000 or imprisonment not
exceeding six months, or both such fine and imprisonment. In the imposition of the penalty, there
should also be taken into consideration the special circumstance that the contempt was committed
by a public authority, the mayor of the city of Manila, the first executive authority of the city, and
consequently, the person obliged to be the first in giving an example of obedience and respect for
the laws and the valid and just orders of the duly constituted authorities as well as for the orders
emanating from the courts of justice, and in giving help and aid to the said courts in order that
justice may be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be
imposed upon the re-
812
812 PHILIPPINE REPORTS ANNOTATED
Rodriguez and Juta vs. Municipal Council of Tagig.
spondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged
against him. Lastly, I believe it to be my duty to state here that the records of this proceeding
should be transmitted to the AttorneyGeneral in order that, after a study of the same and deduction
from the testimony which he may deem necessary, and the proper transmittal of the same to the
fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall present the
corresponding informations for the prosecution and punishment of the crimes which have been
committed on the occasion when the illegal detention of the women was carried into effect by
Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those
crimes committed by reason of the same detention and while the women were in Davao. This will
be one of the means whereby the just hope expressed in the majority decision will be realized, that
is, that in the Philippine Islands there should exist a government of laws and not a government of
men and that this decision may serve to bulwark the fortifications of an orderly Government of
laws and to protect individual liberty from illegal encroachments.
Writ granted.
_____________
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
RICARDO C. SILVERIO, petitioner, vs. THE COURT OF APPEALS, HON. BENIGNO G.
GAVIOLA, as Judge of the Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE
PHILIPPINES, respondents.
 Constitutional Law; Liberty of Abode; Meaning of Art. III, Sec. 6 of 1987 Constitution.—Article III,
Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be
impaired even without Court Order, the appropriate executive officers or administrative authorities are not
armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of “national
security, public safety, or public health” and “as may be provided by law,” a limitive phrase which did not
appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition,
_______________
 SECOND DIVISION.
*
761
VOL. 195, APRIL 8, 1991 761
Silverio vs. Court of Appeals
1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on
international travel imposed under the previous regime when there was a Travel Processing Center, which
issued certificates of eligibility to travel upon application of an interested party (See Salonga v. Hermoso &
Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).
Same; Same; Same; Hold departure Order valid in the case at bar; Holding an accused in a criminal
case within the reach of the courts by preventing his departure from the Philippines must be considered as a
valid restriction on his right to travel.—Petitioner is facing a criminal charge. He has posted bail but has
violated the conditions thereof by failing to appear before the Court when required. Warrants for his arrest
have been issued. Those orders and processes would be rendered nugatory if an accused were to be allowed to
leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a
criminal case within the reach of the Courts by preventing his departure from the Philippines must be
considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The
offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that
criminal prosecutions should run their course and proceed to finality without undue delay, with an accused
holding himself amenable at all times to Court Orders and processes.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
     Quisumbing, Torres & Evangelista for petitioner.
MELENCIO-HERRERA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the
Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled “Ricardo C. Silverio
v. Hon. Benigno C. Gaviola, etc., et al.,” dated 31 January 1990, as well as the Resolution of 29
June 1990 denying reconsideration, be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time,
he posted bail for his provisional liberty.
762
762 SUPREME COURT REPORTS ANNOTATED
Silverio vs. Court of Appeals
On 26 January 1988, or more than two (2) years after the filing of the Information, respondent
People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a
hold-departure Order against accused-petitioner on the ground that he had gone abroad several
times without the necessary Court approval resulting in postponements of the arraignment and
scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing
the Department of Foreign Affairs to cancel Petitioner’s passport or to deny his application
therefor, and the Commission on Immigration to prevent Petitioner from leaving the country. This
order was based primarily on the Trial Court’s finding that since the filing of the Information on
14 October 1985, “the accused has not yet been arraigned because he has never appeared in Court
on the dates scheduled for his arraignment and there is evidence to show that accused Ricardo C.
Silverio, Sr. has left the country and has gone abroad without the knowledge and permission of
this Court” (Rollo, p. 45). Petitioner’s Motion for Reconsideration was denied on 28 July 1988.
Petitioner’s Certiorari Petition before the Court of Appeals met a similar fate on 31 January
1990. Hence, this Petition for Review filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we resolved to give due
course and to decide the case.
Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court
committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4
April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the
scheduled arraignments could not be held because there was a pending Motion to Quash the
Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court,
even on grounds other than the “interest of national security, public safety or public health.”
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is
apparent that it was filed long after the filing of the Information in 1985 and only after several
arraignments had already been scheduled and cancelled due to
763
VOL. 195, APRIL 8, 1991 763
Silverio vs. Court of Appeals
Petitioner’s non-appearance. In fact, said Motion to Quash was set for hearing only on 19 February
1988. Convincingly shown by the Trial Court and conformed to by respondent Appellate Court is
the concurrence of the following circumstances:
1. “1.The records will show that the information was filed on October 14, 1985. Until this date (28
July 1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled and
reset, mostly due to the failure of accused Silverio to appear. The reason for accused Silverio’s
failure to appear had invariably been because he is abroad in the United States of America;
2. “2.Since the information was filed, until this date, accused Silverio had never appeared in person
before the Court;
3. “3.The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been
issued against him all for the same reason—failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given accused Silverio more than enough
consideration. The limit had long been reached” (Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu,
p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not
based on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the
pendency of a Motion to Quash came about only after several settings for arraignment had been
scheduled and cancelled by reason of Petitioner’s non-appearance.
2) Petitioner’s further submission is that respondent Appellate Court “glaringly erred” in
finding that the right to travel can be impaired upon lawful order of the Court, even on grounds
other than the “interest of national security, public safety or public health.”
To start with, and this has not been controverted by Petitioner, the bail bond he had posted had
been cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of
his failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him
for violation of the conditions of his bail bond, he should be taken into custody. “Bail is the
security given for the release of a person in custody of the law, furnished by him or a bondsman,
conditioned upon his appearance before any court when so
764
764 SUPREME COURT REPORTS ANNOTATED
Silverio vs. Court of Appeals
required by the Court or the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114,
Secs. 1 and 2).
The foregoing condition imposed upon an accused to make himself available at all times
whenever the Court requires his presence operates as a valid restriction of his right to travel
(Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person
facing criminal charges may be restrained by the Court from leaving the country or, if abroad,
compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that
“An accused released on bail may be re-arrested without the necessity of a warrant if he attempts
to depart from the Philippines without prior permission of the Court where the case is pending
(ibid., Sec. 20 [2nd par.]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power
of the Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the
allowable impairment of the right to travel only on grounds of interest of national security, public
safety or public health, as compared to the provisions on freedom of movement in the 1935 and
1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated under one
provision. Article III, Section 1(4) thereof reads:
“The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired.”
The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:
“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” (Article IV, Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences and treats them
differently, to wit:
“Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful
765
VOL. 195, APRIL 8, 1991 765
Silverio vs. Court of Appeals
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.”
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel
only on the grounds of “national security, public safety, or public health.”
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the
liberty of travel may be impaired even without Court Order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion to impose limitations. They can
impose limits only on the basis of “national security, public safety, or public health” and “as may
be provided by law,” a limitive phrase which did not appear in the 1973 text (The Constitution,
Bernas, Joaquin G., S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the
1987 Constitution was a reaction to the ban on international travel imposed under the previous
regime when there was a Travel Processing Center, which issued certificates of eligibility to travel
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.
upon application of an interested party (See Salonga v. Hermoso & Travel Processing Center, No.
53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting
the inherent power of the Courts to use all means necessary to carry their orders into effect in
criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial
officer, all auxiliary writs, process and other means necessary to carry it into effect may be
employed by such Court or officer (Rule 135, Section 6, Rules of Court).
Petitioner’s argument that the ruling in Manotoc, Jr., v. Court of Appeals, et als. (supra), to
the effect that the condition imposed upon an accused admitted to bail to make himself available at
all times whenever the Court requires his presence operates as a valid restriction on the right to
travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function of
a bail bond has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution.
Besides, the Manotoc ruling on that point was but a re-affirma-
766
766 SUPREME COURT REPORTS ANNOTATED
Silverio vs. Court of Appeals
tion of that laid down long before in People v. Uy Tuising, 61 Phil. 404 (1935).
Petitioner is facing a criminal charge. He has posted bail but has violated the conditions
thereof by failing to appear before the Court when required. Warrants for his arrest have been
issued. Those orders and processes would be rendered nugatory if an accused were to be allowed
to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an
accused in a criminal case within the reach of the Courts by preventing his departure from the
Philippines must be considered as a valid restriction on his right to travel so that he may be dealt
with in accordance with law. The offended party in any criminal proceeding is the People of the
Philippines. It is to their best interest that criminal prosecutions should run their course and
proceed to finality without undue delay, with an accused holding himself amenable at all times to
Court Orders and processes.
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner,
Ricardo C. Silverio.
SO ORDERED.
     Paras, Padilla, Sarmiento and Regalado, JJ., concur.
Judgment affirmed.
Note.—Department Order No. I does not impair the right to travel. (Phil. Association of
Service Exporters, Inc. vs. Drilon, 163 SCRA 386.)
——o0o——
767
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
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
_______________
 EN BANC.
*
669
VOL. 177, SEPTEMBER 15, 1989 669
Marcos vs. Manglapus
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 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
670
6 SUPREME COURT REPORTS ANNOTATED
70
Marcos vs. Manglapus
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
671
VOL. 177, SEPTEMBER 15, 1989 671
Marcos vs. Manglapus
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
672
6 SUPREME COURT REPORTS ANNOTATED
72
Marcos vs. Manglapus
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
673
VOL. 177, SEPTEMBER 15, 1989 673

Marcos vs. Manglapus
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,”
674
6 SUPREME COURT REPORTS ANNOTATED
74
Marcos vs. Manglapus
“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-
675
VOL. 177, SEPTEMBER 15, 1989 675
Marcos vs. Manglapus
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
676
6 SUPREME COURT REPORTS ANNOTATED
76
Marcos vs. Manglapus
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
677
VOL. 177, SEPTEMBER 15, 1989 677
Marcos vs. Manglapus
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
678
6 SUPREME COURT REPORTS ANNOTATED
78
Marcos vs. Manglapus
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
679
VOL. 177, SEPTEMBER 15, 1989 679
Marcos vs. Manglapus
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
680
6 SUPREME COURT REPORTS ANNOTATED
80
Marcos vs. Manglapus
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
681
VOL. 177, SEPTEMBER 15, 1989 681
Marcos vs. Manglapus
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
682 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
683
VOL. 177, SEPTEMBER 15, 1989 683
Marcos vs. Manglapus
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. 1.Does the President have the power to bar the return of former President Marcos and
his family to the Philippines?
1. a.Is this a political question?
1. 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”—
 1. 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?
2. b.Assuming that she has made that finding,—
1. (1)Have the requirements of due process been complied with in making such finding?
2. (2)Has there been prior notice to petitioners?
3. (3)Has there been a hearing?
4. (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?
1. 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?
2. 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
684 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
1. 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:
685
VOL. 177, SEPTEMBER 15, 1989 685
Marcos vs. Manglapus
Article 12
1. 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. 2)Everyone shall be free to leave any country, including his own.
3. 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. 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
686 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
687
VOL. 177, SEPTEMBER 15, 1989 687
Marcos vs. Manglapus
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
688 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
689
VOL. 177, SEPTEMBER 15, 1989 689
Marcos vs. Manglapus
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.”
690
690 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
[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.
691
VOL. 177, SEPTEMBER 15, 1989
Marcos vs. Manglapus
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
692
692 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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.]
691 693
VOL. 177, SEPTEMBER 15, 1989 693
Marcos vs. Manglapus
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
694 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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-
695
VOL. 177, SEPTEMBER 15, 1989 695
Marcos vs. Manglapus
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
696
696 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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.
697
VOL. 177, SEPTEMBER 15, 1989 697
Marcos vs. Manglapus
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
698 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
699
VOL. 177, SEPTEMBER 15, 1989 699
Marcos vs. Manglapus
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 explosive ingredient in a steaming cauldron which could
blow up if not handled properly.” 1
These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice
Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the
exhaustive and well-written 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
_______________
 From the speech “Restrictions on Human Rights—States of Emergency, National Security, Public Safety and Public
1
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
700 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
701
VOL. 177, SEPTEMBER 15, 1989 701
Marcos vs. Manglapus
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
702 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
703
VOL. 177, SEPTEMBER 15, 1989 703
Marcos vs. Manglapus
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
704 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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:
x x x      x x x      x x x
“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
705
 VOL. 177, SEPTEMBER 15, 1989 705
Marcos vs. Manglapus
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
706 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
707
VOL. 177, SEPTEMBER 15, 1989 707
Marcos vs. Manglapus
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
708 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
709
VOL. 177, SEPTEMBER 15, 1989 709
Marcos vs. Manglapus
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
710 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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,
711
VOL. 177, SEPTEMBER 15, 1989 711
Marcos vs. Manglapus
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
712 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
Marcos vs. Manglapus
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
714 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
Marcos vs. Manglapus
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
716 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
Marcos vs. Manglapus
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
718 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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
Marcos vs. Manglapus
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 a Filipino, invoking a specific constitutional
right, i. e., the right to return to the country.  Have the respondents presented sufficient evidence to
1
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.
_______________
 In addition, he invokes the right as a basic human right recognized by the Universal Declaration of Human Rights.
1
720
720 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the land, (Art.
II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip service to Art. 13, par.
2 of the Universal Declaration of Human Rights which provides that everyone has the right to
leave any country, including his own, and to return to his country. This guarantee is reiterated in
Art. XII, par. 2 of the International Covenant on Civil and Political Rights which states that “ no
one shall be arbitrarily deprived of the right to enter his own country.” (italics supplied)
“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 traditions or a particular sense of justice which falls short of
international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President,
have raised the argument of “national security” and “public safety,” it is the duty of this Court to
unquestioningly yield thereto, thus casting the controversy to the realm of a political question. I do
not agree. I believe that this is one case where the human and constitutional right invoked by one
party is so specific, substantial and clear that it cannot be overshadowed, much less, nullified by
simplistic generalities; worse, the Court neglects its duty under the Constitution when it allows the
theory of political question to serve as a convenient, and yet, lame excuse for evading what,
_______________
719
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
Marcos vs. Manglapus
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—
1. 1.Mr. Marcos is a Filipino and, as such, entitled to return to,  die and be buried in this
5
country;
2. 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. 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.
_______________
 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States, is beyond the issues in
5
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
722 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
3
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 Constitution, the President may prohibit the Marcoses from returning to the
Philippines.”  I therefore take exception to allusions  anent “the capacity of the Marcoses to stir
1 2
trouble even from afar.”  I have legitimate reason to fear that my brethren, in passing judgment on
3
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: I.
“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 First: While the Chief Executive exercises powers not found expressly in the Charter, but has
law, in truth and in fact exist. There is only one right involved here, whether under municipal or them by constitutional implication,  the latter must yield to the paramountcy of the Bill of Rights.
*

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

in essence, involves the application, and no more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.
4
My brethren have not demonstrated, to my satisfaction, how the President may override the
direct mandate of the fundamental law. It will not suffice, so I submit, to say that the President’s
plenitude of powers, as provided in the Constitution, or by sheer constitutional implication, prevail
over express constitutional commands. “Clearly,” so I borrow J.B.L. Reyes, in his own right, a

_______________
titan in the field of public law, “this argument . . . rests . . . not upon the text of the
 Decision, 4.
1
[Constitution] . . . but upon a mere inference therefrom.”  For if it were, indeed, the intent of the
9

 Seesupra,1-4.
2 Charter to create an exception, that is, by Presidential action, to the right of travel or liberty of
 Supra,2.
3
abode and of changing the same—other than what it explicitly says already (“limits prescribed by
 CONST., art. III, sec. 6.
law”  or “upon lawful order of the court” )—the
4

10 11

723
_______________
VOL. 177, SEPTEMBER 15, 1989 723
 Supra,21-22.
7

Marcos vs. Manglapus  But see Cruz, J., Dissenting.

*

The majority says, with ample help from American precedents, that the President is possessed of  FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
8

the power, thus:  Republic v. Quasha, No. L-30299, August 17, 1972, 46 SCRA 160, 169.
9

 CONST.,supra.
On these premises, we hold the view that although the 1987 Constitution imposes limitations
10

 Supra.
11

on the exercise of specific powers of the President, it maintains intact what is traditionally
considered as within the scope of “executive power.” Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines,
the President is, under the Constitution, constrained to consider these basic principles in arriving at a decision.
More than that, having sworn to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people
have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of the
Government exercising the powers delegated by the people forget and the servants of the people become
rulers, the Constitution reminds everyone that “[s]overeignty resides in the people and all government
authority emanates from them.” [Art. II, Sec. 1.] 6 Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when
And finally:
725
VOL. 177, SEPTEMBER 15, 1989 725
Marcos vs. Manglapus
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:
necessary in the interest of national security, public safety, or public health.
12

To the President, the problem is one of balancing the general welfare and the common good against the Under this provision, the right may be abated: (1) upon a lawful court order, or (2) “when
exercise of rights of certain individuals. The power involved is the President’s residual power to protect the necessary in the interest of national security, public safety, or public health.” Arguably, the
13

general welfare of the people. It is founded on the duty of the President, as steward of the people. To provision enabled the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not says, justified such practices as “hamletting”, forced relocations, or the establishment of free-fire
forbiden by the Constitution or the laws that the needs of the nation demanded [See Corwin,  supra,at 153]. It is zones. 14

a power borne by the President’s duty to preserve and defend the

_______________ 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
5
 Decision, supra, 18; emphasis in the original. law.”  The President is out of the picture.
15

6
 Supra,20-21. Admittedly, the Chief Executive is the “sole” judge of all matters affecting national
724
security  and foreign affairs; the Bill of Rights—precisely, a form of check against excesses of
16 17

724 SUPREME COURT REPORTS ANNOTATED _______________

Marcos vs. Manglapus 12

 CONST. (1973), art. IV, sec. 5.
Constitution. It also may be viewed as a power implicit in the President’s duty to take care that the laws are 13
 Supra.
faithfully executed [See Hyman, The American President, where the author advances the view that an 14
 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263 (1987 ed.)
allowance of discretionary power is unavoidable in any government and is best lodged in the President]. 7 15
 CONST. (1987), art. III, sec. 6, supra.
I am not persuaded. 16
 See supra, art. VII, sec. 18.
17
 See Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.
 726
726 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
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. 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 . . .:”  is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we
say “from Marcos,” we unravel chinks in our political armor. It also flies in the face of claims, so
confidently asserted, that “this Government will not fall” even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen, trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual
liberties.  As I indicated, not one shred of evidence, let alone solid evidence, other than
20
_______________
 See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265, and 34339, December 11,
18
1971, 42 SCRA 448, 480.
 Decision,supra, 21.
19
 Supra.
20
727
VOL. 177, SEPTEMBER 15, 1989
Marcos vs. Manglapus
surmises of possibilities, has been shown to justify the “balancing act” referred to. Worse, these
conjectures contradict contentions that as far as Philippine society is concerned, Marcos is
“history”.
The power of the President, so my brethren declaim, “calls for the exercise of the President’s
power as protector of peace.” 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he was.
That “[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and
internal threats to its existence,”  is a bigger fantasy: It not only summons the martial law decisions
22
of pre-“EDSA” (especially with respect to the detestable Amendment No. 6), it is inconsistent
with the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that
has perceptibly reduced the Executive’s powers vis-a-vis its 1973 counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of 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
_______________
 Supra.
21
 Supra,22.
22
 See CONST. (1987), art. VII, sec. 18, supra.
23
 Abraham (“Ditto”) Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976), official student organ of the
**
University of the Philippines. He was detained in the military stockade for common criminals from January to August, 1976.
728
728 SUPREME COURT REPORTS ANNOTATED
Marcos vs. Manglapus
18 delicate health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial
19 law apparatus.
The undersigned also counts himself as one of the victims of Marcos’
ruthless apparatchiki.On August 14, 1979, he was, along with former President Diosdado
Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia, charged, “ASSOed,”
and placed under house arrest, for “inciting to sedition” and “rumor mongering,”  in the midst of 24
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
727
movement and the liberty of
_______________
 SPI No. 79-347 (“For: Violation of Presidential Decree No. 90 and Article 142 of the Revised Penal Code, as
24
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
abode.  We would have betrayed our own ideals if we denied Marcos his rights. It is his
25
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——
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
386 SUPREME COURT REPORTS ANNOTATED
Philippine Association ofService Exporters, Inc. vs. Drilon
No. L-81958. June 30,1988. *
PHIlLIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC, petitioner, vs. HON.
FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO,
as Administrator of the Philippine Overseas Employment Administration, respondents.
Constitutional Law; Labor Laws: Deployment Ban of Female Domestic Helper; Concept of Police
Power.—The concept of police power is well-established in this jurisdiction. It has been defmed as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order
to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general
terms to underscore its all-comprehensive embrace. "Its scope, ever-expanding to meet the exigencies of the
times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible
response to conditions and circumstances thus assuring the greatest benefits."
Same; Same; Same; Same; Police power constitutes an implied limitation on the Bill ofRights.—It
constitutes an implied limitation
________________
 EN BANC.
* evidence, an evidence the petitioner cannot seriously dispuce, of the lack or inadequacy of auch protection, and
387
VOL. 163, JUNE 30, 1988 387
Philippine Association ofService Exporters, Inc. vs. Drilon
on the Bill of Rights. According to Fernando, it is "rooted in the conception that men in organizing the
state and imposing upon its governxnent limitations to safeguard constitutional rights did not intend thereby to
enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to ensure communal peace, safety, good order, and welfare." Significantly, the Bill of
Rights itself does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself,
the greatest of all rights, is not unrestricted license to act according to one's will." It is subject to the far more
overriding demands and requirements of the greater number.
Same; Same; Same; Equality before the law under the Constitution; Requirements ofa valid
classification, satisfied.—The petitioner has shown no satisfactory reason why the contested measure should
be nullified. There is no question that Department Order No. 1 applies only to "female contract workers," but it
does not thereby make an undue discrimination between the sexes. It is well-settled that "equality before the
law" under the Constitution does not import a perfect identity of rights among all men and women. It admits of
classifications, provided that (1) such classiflcations rest on substantial distinctions; (2) they are germane to the
purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members
of the same class. The Court is satisfied that the classification made—the preference for female workers—rests
on substantial distinctions.
Same; Same; Same; Valid Discrimination between female and male contract workers under
Department OrderNo. l,justified.—The same, however, cannot be said of our male workers. In the first place,
there is no evidence that, except perhaps for isolated instances, our men abroad have been afflicted with an
identical predicament. The petitioner has proffered no argument that the Government should act similarly with
respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that men are
superior to women. What the Court is saying is that it was largely a matter of evidence (that women domestic
workers are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick
that the Government acted in this case. It is evidence capable indeed of unquestionable demonstration and
evidence this Court accepts. The Court cannot, however, say the same thing as far as men are concerned. There
is simply no evidence to justify such an inference. Suffice it to state, then, that insofar as classification are
concerned, this Court is content that distinctions are borne by the
388
3 SUPREME COURT REPORTS ANNOTATED
88
Philippine Association ofService Exporters, Inc. vs. Drilon
evidence. Discrimination in this case is justified.
Same;  Same; Same;  Department Order No. 1 does not impair the right to travel.—The consequence
the deployment ban has on the right to travel does not impair the right. The right to travel is subject, among
other things, to the requirements of "public safety, "as may be provided by law." Department Order No. 1 is a
valid implementation of the Labor Code, in particular, its basic policy to "afford protection to labor," pursuant
to the respondent Department of Labor's rulemaking authority vested in it by the Labor Code. The petitioner
assumes that it is unreasonable simply because of its impact on the right to travel, but as we have stated, the
right itself is not absolute. The disputed Order is a valid qualification thereto.
Same;  Same; Same;  No merit in the contention that Department Order No. 1 constitutes an invalid
exercise of legislative power since the Labor Code itselfvests the DOLE with rule-making powers.—Neither is
there merit in the contention that Department Order No. 1 constitutes an invalid exercise of legislative power.
It is true that police power is the domain of the legislature, but it does not mean that such an authority may not
be lawfully delegated. As we have mentioned, the Labor Code itself vests the Department of Labor and
Employment with rule-making powers in the enforcement whereof.
Same;  Same; Same;  "Protection to Labor" does not signify the promotion ofemployment alone.—
Trotection to labor" does not signify the promotion of einployment alone. What concerns the Constitution
more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the
country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at
home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have
adequate protection, personally and economically, while away from home. In this case, the Government has
as part of its duty, it has precisely ordered an indefinite ban on deployment.
Same;  Same; Same;  Non-impairment clause must yield to the demands and necessities of State's
power of regulation to provide a decent living to its citizens.—The petitioner's reliance on the Constitutional
guaranty of worker participation "in policy and decisionmaking processes affecting their rights and benefits" is
not welltaken. The right granted by this provision, again, must submit to the
389
VOL. 163, JUNE 30, 1988 389
Philippine Association ofService Exporters, Inc. vs. Drilon
demands and necessities of the State's power of regulation. The nonimpairment clause of the
Constitution, invoked by the petitioner, must yield to the loftier purposes targetted by the Government.
Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this
jurisdiction, where laissez faire has never been fully accepted as a controlling economic-way of life. This
Court understands the grave implications the questioned Order has on the business of recruitment. The concern
of the Government, however, is not necessarily to maintain profits of business firms. In the ordinary sequence
of events, it is profits that suffer as a result of Government regulation. The interest of the State is to provide a
decent living to its citizens. The Government has convinced the Court in tbis case that this is its intent. We do
not find the impugned Order to be tainted witb a grave abuse of discretion to warrant the extraordinary relief
prayed for.
PETITION to review the decision of the Secretary of Labor and Employment.
The facts are stated in the opinion of the Court.
     Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm
"engaged principally in the recruitment of Filipino workers, male and female, for overseas
placement,"  challenges the Constitutional validity of Department Order No. 1, Series of 1988, of
1
the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING
THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND
HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. Specifically, the
measure is assailed for "discrimination against males or females;"  that it "does not apply to all
2
Filipino workers but only to domestic helpers and females with similar skills;" and that it is
violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power,
police power being legislative, and not executive, in character.
3
safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare."  Significantly, the Bill of Rights itself does not
10

________________ purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the
greatest of all rights, is not unrestricted license to act according to one's will."  It is subject to the
11

 Rollo,3.
1
far more overriding demands and requirements of the greater number.
 Id., 12.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all
2

 Id., 13.
3

390 its awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in
that event, it defeats the purpose for which it is exercised, that is, to advance the public good.
390 SUPREME COURT REPORTS ANNOTATED
Thus, when the power is used to further private interests at the expense of the
Philippine Association ofService Exporters, Inc. vs. Drilon ________________
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution,
providing for worker participation "in policy and decision-making processes affecting their rights  Supra, 488.
6

 TRIBE, AMERICAN CONSTITUTIONAL LAW, 323 (1978).

7

and benefits as may be provided by law."  Department Order No. 1, it is contended, was passed in
4

 Id.
8

the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-  Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708 (1919).
9

impairment clause, in addition to the "great and irreparable injury" that PASEI members face  Edu v. Ericta, supra.
10

 Rubi v. Provincial Board of Mindoro, supra, 704.

should the Order be further enforced.
11

392
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and
Administrator of the Philippine Overseas Employment Administration, filed a Comment informing 392 SUPREME COURT REPORTS ANNOTATED
the Court that on March 8,1988, the respondent Labor Secretary lifted the deployment ban in the Philippine Association ofService Exporters, Inc. vs. Drilon
states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and citizenry, there is a clear misuse of the power. 12

Switzerland. In submitting the validity of the challenged "guidelines," the Solicitor General
**

In the light of the foregoing, the petition must be dismissed. As a general rule, official acts
invokes the police power of the Philippine State. enjoy a presumed validity.  In the absence of elear and convincing evidence to the contrary, the
13

It is admitted that Department Order No. 1 is in the nature of a police power measure. The
only question is whether or not it is valid under the Constitution.
The concept of police power is well-estaonshed in this jurisdiction. It has been defined as the
"state authority to enact legislation that may interfere with personal liberty or property in order to
presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure should be
nullified. There is no question that Department Order No. 1 applies only to "female contract
workers,"  but it does not thereby make an undue discrimination between the sexes. It is well-
14

promote the general welfare."  As defined, it consists of (1) an imposition of restraint upon liberty
5

settled that "equality before the law" under the Constitution  does not import a perfect identity of
15

or property, (2) in order to foster the common good. It is not capable of an exact definition but has rights among all men and women. It admits of classifications, provided that (1) such classifications
been, purposely, veiled in general terms to underscore its all-comprehensive embrace. rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not
"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future confined to existing conditions; and (4) they apply equally to all members of the same class. 16

where it could be done, provides enough room for an efficient and flexible response to conditions The Court is satisfied that the classification made—the preference for female workers—rests
and circumstances thus assuring the greatest bene- on substantial distinctions.
________________
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen
 CONST.,ArtXIII,Sec.3.
4
our female labor force abroad, especially domestic servants, amid exploitative working conditions
 Per reports, on June 14,1988, the Government is said to have lifted the ban on five more countries: New Zealand,
** marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment
Australia, Sweden, Spain, and West Germany. ("Maid export ban lifted in 5 states," The Manila Chronicle, June 14,1988, p. suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by
17, col. 2.) testimonies of returning workers, are compelling motives for urgent Government action. As
 Edu v. Ericta, No. L-32096, October 24, 1970, 35 SCRA 481, 487.
precisely the caretaker of Constitutional rights, the Court is called upon to
5

391
_________________
VOL. 163, JULY 30, 1988 391
 It is generally presumed, notwithstanding the plenary character of the lawmaking power, that the legislature must act for
12

Philippine Association ofService Exporters, Inc. vs. Drilon public purposes. In Pascual v. Secretary of Public Works [110 Phil. 331 (1960)], the Court nullified an act of Congress
fits." 6
appropriating funds for a private purpose. The prohibition was not embodied in the Constitution then in force, however, it was
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to presumed that Congress could not do it.
 Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, No. L-24693, July 31,1967,  20
the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of
13

SCRA 849.
statehood and sovereignty. It is a fundamental attribute of government that has enabled it to  Dept. Order No. 1 (DOLE), February 10,1988.
14

perform the most vital functions of governance. Marshall, to whom the expression has been  CONST., supra, Art. III, Sec. 1.
15

credited,  refers to it succinctly as the plenary power of the State "to govern its citizens."
7 8
 People v. Cayat, 68 Phil. 12 (1939).
16

393
"The police power of the State ... is a power coextensive with self-protection, and it is not
inaptly termed the 'law of overwhelming necessity.' It may be said to be that inherent and plenary VOL. 163, JUNE 30, 1988 393
power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare Philippine Association ofService Exporters, Inc. vs. Drilon
of society."
protect victims of exploitation. In folfilling that duty, the Court sustains the Government's efforts.
9

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted

in the conception that men in organizing the state and imposing upon its government limitations to
 The same, however, cannot be said of our male workers. In the first place, there is no evidence  Dept. Order No. 1, supra.
17

 Supra.
that, except perhaps for isolated instances, our men abroad have been afilicted with an identical
18

 Supra.
19

predicament. The petitioner has proffered no argument that the Government should act similarly  Rollo, id., 13.
20

with respect to male workers. The Court, of course, is not impressing some male chauvinistic 395
notion that men are superior to women. What the Court is saying is that it was largely a matter of VOL. 163, JULY 30, 1988 395
evidence (that women domestic workers are being ill-treated abroad in massive instances) and not
upon some fanciful or arbitrary yardstick that the Government acted in this case. It is evidence Philippine Association ofService Exporters, Inc. vs. Drilon
capable indeed of unquestionable demonstration and evidence this Court accepts. The Court clause of the Charter. It would be a classic case of what Chase refers to as a law that "takes
cannot, however, say the same thing as far as men are concerned. There is simply no evidence to property from A and gives it to B."  It would be an unlawful invasion of property rights and
21

justify such an inference. Suffice it to state, then, that insofar as classifications are concerned, this freedom of contract and needless to state, an invalid act.  (Fernando says: "Where the classification
22

Court is content that distinctions are borne by the evidence. Discrimination in this case is justified.
As we have furthermore indicated, executive determinations are generally final on the Court.
Under a republican regime, it is the executive branch that enforces policy. For their part, the courts
decide, in the proper cases, whether that policy, or the manner by which it is implemented, agrees
with the Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body,
the judiciary has great respect for determinations of the Chief Executive or his subalterns,
is based on such distinctions that make a real difference as infancy, sex, and stage of civilization of
minority groups, the better rule, it would seem, is to recognize its validity only if the young, the
women, and the cultural minorities are singled out for favorable treatment. There would be an
element of unreasonableness if on the contrary their status that calls for the law ministering to their
needs is made the basis of discriminatory legislation against them. If such be the case, it would be
difficult to refute the assertion of denial of equal protection."  In the case at bar, the assailed Order
23

especially when the legislature itself has specifically given them enough room on how the law
should be effectively enforced. In the case at bar, there is no gainsaying the fact, and the Court will
deal with this at greater length shortly, that Department Order No. 1 implements the rule-making
powers granted by the Labor Code. But what should be noted is the fact that in spite of such a
fiction of finality, the Court is on its own persuaded that prevailing conditions indeed call for a
deployment ban.
There is likewise no doubt that such a classification is germane to the purpose behind the
measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance
394
394 SUPREME COURT REPORTS ANNOTATED
Philippine Association ofService Exporters, Inc. vs. Drilon
the protectioii for Filipino female overseas workers."  This Court has no quarrel that in the midst
17
clearly accords protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas
deployment. From scattered provisions of the Order, it is evident that such a total ban has not been
contemplated. We quote:
5. AUTHORIZED DEPLOYMENT—The deployment of domestic helpers and workers of similar skills
defined herein to the following [sic] are authorized under these guidelines and are exempted from the
suspension.
1. 5.1Hirings by immediate members of the family of Heads of State and Government;
2. 5.2Hirings by Minister, Deputy Minister and the other senior government officials; and
3. 5.3Hirings by senior officials of the diplomatic corps and duly accredited international
organizations.
4. 5.4Hirings by employers in countries with whom the Philippines have [sic] bilateral labor

agreements or understanding. 
of the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be xxx      xxx      xxx
for their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply
indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending review 7. VACATIONING DOMESTIC HELPERS AND WORKERS
________________
of the administrative and legal measures, in the Philippines and in the host countries . . ." ), 18

meaning to say that should the authorities arrive at a means impressed with a greater degree of  See TRIBE, id., citing Calder v. Bull, 3 U.S. 386 (1798).
21

permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary  Id.,
22

malleability, depending on the circumstances of each case. Accordingly, it provides:  FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 549-550 (1977).
23

9. LIFTING OF SUSPENSION.—The Secretary of Labor and Employment (DOLE) may, upon
recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in
countries where there are:
1. 1.Bilateral agreements or understanding with the Philippines, and/or,
2. 2.Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of
Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas
workers. That it does not apply to "all Filipina workers"  is not an argument for
20
396
396 SUPREME COURT REPORTS ANNOTATED
Philippine Association ofService Exporters, Inc. vs. Drilon
OF SIMILAR SKJLLS—Vacationing domestic helpers and/or workers of similar skills shall be allowed to
process with the POEA and leave for worksite only if they are returning to the same employer to flnish an
existing or partially served employment contract. Those workers returning to worksite to serve a new employer
shall be covered by the suspension and the provision of these guidelines.
xxx      xxx      xxx
9. LIFTING OF SUSPENSION—The Secretary of Labor and Employment (DOLE) may, upon
recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in

countries where there are:

unconstitutionality. Had the ban been given universal applicability, then it would have been
unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced.*
1. 1.Bilateral agreements or understanding with the Philippines, and/or,
What the Constitution prohibits is the singling out of a select person or group of persons within an
existing class, to the prejudice of such a person or group or resulting in an unfair advantage to 2. 2.Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of
another person or group of persons. To apply the ban, say exclusively to workers deployed by A, Filipino workers. 24

but not to those recruited by B, would obviously clash with the equal protection
________________ xxx      xxx      xxx
The consequence the deployment ban has on the right to travel does not impair the right. The right The Court finds furthermore that the Government has not indiscriminately made use of its
to travel is subject, among other things, to the requirements of "public safety," "as may be authority. It is not contested that it has in fact removed the prohibition with respect to certain
provided by law."  Department Order No. 1 is a valid implementation of the Labor Code, in
25
countries as manifested by the Solicitor General.
particular, its basic policy to "afford protection to labor," pursuant to the respondent Department of
26
The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the
Labor's rule-making authority vested in it by the Labor Code.  The petitioner assumes that it is
27
loftier purposes targetted by the Government.  Freedom of contract and enterprise, like all other
31

unreasonable simply because of its impact on the right to travel, but as we have stated, the right
itself is not absolute. The disputed Order is a valid qualification thereto.
Neither is there merit in the contention that Department Order No. 1 constitutes an invalid
exercise of legislative power. It is true that police power is the domain of the legislature, but it
does not mean that such an authority may not be lawfully delegated. As we have mentioned, the
Labor Code itself vests the Department of Labor and Employment with rule-making powers in the
enforcement whereof. 28
freedoms, is not free from restrictions, more so in this jurisdiction, where  laissez fairehas never
been fully accepted as a controlling economic way of life.
This Court understands the grave implications the questioned Order has on the business of
recruitment. The concern of the Government, however, is not necessarily to maintain
_________________
 CONST., supra, Art. XIII, Sec. 3.
29

________________  Supra.
30

 Heirs of Juancho Ardona v. Reyes, Nos. L-60549, 60553-60555, October 26,1983,125 SCRA 220.
31

398
 Dept. Order No. 1, supra.
24

 CONST., supra, Art. III, Sec. 6.

25
398 SUPREME COURT REPORTS ANNOTATED
 Pres. Decree No. 442, Art. 3.
26

 Supra, Art. 5.
27 Ayroso vs. Reyes
 Supra.
28
profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of
397 Government regulation. The interest of the State is to provide a decent living to its citizens. The
VOL. 163, JUNE 30, 1988 397 Government has convinced the Court in this case that this is its intent. We do not find the
impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief
Philippine Association ofService Exporters, Inc. vs. Drilon
prayed for.
The petitioners's reliance on the Constitutional guaranty of worker participation "in poliey and
WHEREFORE, the petition is DISMISSED. No costs.
decision-making processes affecting their rights and benefits"  is not well-taken. The right granted
SO ORDERED.
29

by this provision, again, must submit to the demands and necessities of the State's power of
     Yap (C.JJ, Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, P
regulation.
adilla, Eidin, Cortesand Griiio-Aquino, JJ., concur.
The Constitution declares that:
     Gutierrez, Jr. and Medialdea, JJ., on leave.
Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for all. 30
Petition dismissed.
"Protection to labor" does not signify the promotion of employment alone. What concerns the Note.—Liberal and compassionate spirit of the labor laws. (Sarmiento us. ECC, 144 SCRA
Constitution more paramountly is that such an employment be above all, decent, just, and humane. 421.)
It is bad enough that the country has to send its sons and daughters to strange lands because it
cannot satisfy their employment needs at home. Under these circumstances, the Government is ——oOo——
duty-bound to insure that our toiling expatriates have adequate protection, personally and
economically, while away from home. In this case, the Government has evidence, an evidence the © Copyright 2018 Central Book Supply, Inc. All rights reserved.
petitioner cannot seriously dispiite, of the lack or inadequacy of such protection, and as part of its
duty, it has precisely ordered an indefinite ban on deployment.

JOSE MIGUEL T. ARROYO, Petitioner, v. HON. LEILA M. DE LIMA, AS SECRETARY OF THE

DEPARTMENT OF JUSTICE AND RICARDO V. PARAS III, AS CHIEF STATE COUNSEL,
EN BANC DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., IN HIS CAPACITY AS
COMMISSIONER, BUREAU OF IMMIGRATION, Respondents.
G.R. No. 197930, April 17, 2018
DECISION
EFRAIM C. GENUINO, ERWIN F. GENUINO AND SHERYL G. SEE, Petitioners, v. HON. LEILA
M. DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE, AND RICARDO V. PARAS III, REYES, JR., J.:
IN HIS CAPACITY AS CHIEF STATE COUNSEL, CRISTINO L. NAGUIAT, JR. AND THE
BUREAU OF IMMIGRATION, Respondents.

G.R. No. 199034, April 17, 2018

MA. GLORIA MACAPAGAL-ARROYO, Petitioner, v. HON. LEILA M. DE LIMA, AS SECRETARY

OF THE DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., AS COMMISSIONER OF
THE BUREAU OF IMMIGRATION, Respondents.

G.R. No. 199046, April 17, 2018

These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of Temporary
Restraining Orders (TRO) and/or Writs of Preliminary Injunction Under Rule 65 of the Rules of Court
assail the constitutionality of Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise
known as the "Consolidated Rules and Regulations Governing Issuance and Implementation of Hold
Departure Orders, Watchlist Orders and Allow Departure Orders" on the ground that it infringes on
the constitutional right to travel.
On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA to reflect her
full name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.12 WLO No. 2011-422, as amended,
is valid for a period of 60 days, or until November 5, 2011, unless sooner terminated or otherwise
extended. This was lifted in due course by De Lima, in an Order dated November 14, 2011, following
the expiration of its validity.13

Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside the Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and Violation of the
following orders issued by the former DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ OEC were filed against GMA and her husband, Jose Miguel Arroyo (Miguel Arroyo), among others,
Circular No. 41, thus: with the DOJ-Commission on Elections (DOJ-COMELEC) Joint Investigation Committee on 2004 and
2007 Election Fraud,14 specifically:

1. Watchlist Order No. ASM-11-237 dated August 9, 2011;1 (a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs. Gloria
Macapagal-Arroyo et al., (for the Province of Maguindanao), for electoral sabotage/violation of the
2. Amended Watchlist Order No. 2011-422 dated September 6, 2011;2and OEC and COMELEC Rules and Regulations; 15 and

(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria Macapagal-Arroyo, et
3. Watchlist Order No. 2011-573 dated October 27, 2011.3
al., for electoral sabotage.16

In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the invalidation Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573 against GMA and
of the Order4 dated November 8, 2011, denying her application for an Allow-Departure Order (ADO). Miguel Arroyo on October 27, 2011, with a validity period of 60 days, or until December 26, 2011,
unless sooner terminated or otherwise extended.17
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino (Erwin) and
Sheryl Genuino-See (Genuinos) pray for the nullification of the Hold-Departure Order5 (HDO) No. In three separate letters dated October 20, 2011, October 21, 2011, and October 24, 2011, GMA
2011-64 dated July 22, 2011 issued against them. requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may
be able to seek medical attention from medical specialists abroad for her hypoparathyroidism and
metabolic bone mineral disorder. She mentioned six different countries where she intends to
Antecedent Facts
undergo consultations and treatments: United States of America, Germany, Singapore, Italy, Spain
and Austria.18 She likewise undertook to return to the Philippines, once her treatment abroad is
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17, prescribing
completed, and participate in the proceedings before the DOJ.19 In support of her application for
rules and regulations governing the issuance of HDOs. The said issuance was intended to restrain
ADO, she submitted the following documents, viz.:
the indiscriminate issuance of HDOs which impinge on the people's right to travel.
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to the
Secretary of Foreign Affairs, of her Travel Authority;
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing
rules and regulations governing the issuance and implementation of watchlist orders. In particular, it
2. First Endorsement dated October 19, 201120 of Artemio A. Adasa, OIC Secretary General of the
provides for the power of the DOJ Secretary to issue a Watchlist Order (WLO) against persons with
House of Representatives, to the Secretary of Foreign Affairs, amending her Travel Authority to
criminal cases pending preliminary investigation or petition for review before the DOJ. Further, it
include travel to Singapore, Spain and Italy;
states that the DOJ Secretary may issue an ADO to a person subject of a WLO who intends to leave
the country for some exceptional reasons.6 Even with the promulgation of DOJ Circular No. 18,
3. Affidavit dated October 21, 2011,21 stating the purpose of travel to Singapore, Germany and
however, DOJ Circular No. 17 remained the governing rule on the issuance of HDOs by the DOJ.
Austria;
On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ Circular No.
4. Medical Abstract dated October 22, 2011,22 signed by Dr. Roberto Mirasol (Dr. Mirasol);
41, consolidating DOJ Circular Nos. 17 and 18, which will govern the issuance and implementation of
HDOs, WLOs, and ADOs. Section 10 of DOJ Circular No. 41 expressly repealed all rules and
5. Medical Abstract dated October 24, 2011,23 signed by Dr. Mario Ver;
regulations contained in DOJ Circular Nos. 17 and 18, as well as all instructions, issuances or orders
or parts thereof which are inconsistent with its provisions.
6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the schedule of
consultations with doctors in Singapore.
After the expiration of GMA's term as President of the Republic of the Philippines and her subsequent
To determine whether GMA's condition necessitates medical attention abroad, the Medical Abstract
election as Pampanga representative, criminal complaints were filed against her before the DOJ,
prepared by Dr. Mirasol was referred to then Secretary of the Department of Health, Dr. Enrique
particularly:
Ona (Dr. Ona) for his expert opinion as the chief government physician. On October 28, 2011, Dr.
Ona, accompanied by then Chairperson of the Civil Service Commission, Francisco Duque, visited
(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al., for
GMA at her residence in La Vista Subdivision, Quezon City. Also present at the time of the visit were
plunder;7
GMA's attending doctors who explained her medical condition and the surgical operations conducted
on her. After the visit, Dr. Ona noted that "Mrs. Arroyo is recuperating reasonably well after having
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for
undergone a series of three major operations."24
plunder, malversation and/or illegal use of OWWA funds, graft and corruption, violation of the
Omnibus Election Code (OEC), violation of the Code of Conduct and Ethical Standards for Public
On November 8, 2011, before the resolution of her application for ADO, GMA filed the present
Officials, and qualified theft;8 and
Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court with Prayer for the
Issuance of a TRO and/or Writ of Preliminary Injunction, docketed as G.R. No. 199034, to annul and
(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder,
set aside DOJ Circular No. 41 and WLOs issued against her for allegedly being unconstitutional.25
malversation, and/or illegal use of public funds, graft and corruption, violation of the OEC, violation
of the Code of Conduct and Ethical Standards for Public Officials and qualified theft.9
A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari, and Prohibition under
the same rule, with Prayer for the Issuance of a TRO and/or a Writ of Preliminary Injunction,
In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422 dated August
likewise assailing the constitutionality of DOJ Circular No. 41 and WLO No. 2011-573. His petition
9, 2011 against GMA pursuant to her authority under DOJ Circular No. 41. She also ordered for the
was docketed as G.R. No. 199046.26
inclusion of GMA's name in the Bureau of Immigration (BI) watchlist.10 Thereafter, the BI issued
WLO No. ASM-11-237,11 implementing De Lima's order.
Also, on November 8, 2011, De Lima issued an Order,27 denying GMA's application for an ADO,
based on the following grounds:
First, there appears to be discrepancy on the medical condition of the applicant as stated in her
affidavit, on the other hand, and the medical abstract of the physicians as well as her physician's
statements to Secretary Ona during the latter's October 28, 2011 visit to the Applicant, on the
other.
xxxx
Second, based on the medical condition of Secretary Ona, there appears to be no urgent and
immediate medical emergency situation for Applicant to seek medical treatment abroad, x x x.
xxxx
Third, Applicant lists several countries as her destination, some of which were not for purposes of
medical consultation, but for attending conferences, x x x.
xxxx
Fourth, while the Applicant's undertaking is to return to the Philippines upon the completion of her
medical treatment, this means that her return will always depend on said treatment, which, based
on her presentation of her condition, could last indefinitely, x x x.
xxxx
Fifth, x x x x. Applicant has chosen for her destination five (5) countries, namely, Singapore,
Germany, Austria, Spain and Italy, with which the Philippines has no existing extradition treaty, x x
x.
xxxx
IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO)
of Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for lack of merit.
SO ORDERED.28
On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III, Chief State
Counsel of the DOJ and Ricardo A. David, Jr., who was then BI Commissioner, (respondents) filed a
Very Urgent Manifestation and Motion29 in G.R. Nos. 199034 and 199046, praying (1) that they be
given a reasonable time to comment on the petitions and the applications for a TRO and/or writ of
preliminary injunction before any action on the same is undertaken by the Court; (2) that the
applications for TRO and/or writ of preliminary injunction be denied for lack of merit, and; (3) that
the petitions be set for oral arguments after the filing of comments thereto.30
On November 13, 2011, GMA filed a Supplemental Petition31 which included a prayer to annul and
set aside the Order dated November 8, 2011, denying her application for ADO. On the following day,
GMA filed her Comment/Opposition32 to the respondents' Very Urgent Manifestation and Motion
dated November 9, 2011, in G.R. No. 199034.
On November 15, 2011, the Court issued a Resolution,33 ordering the consolidation of G.R. Nos.
199034 and 199046, and requiring the respondents to file their comment thereto not later than
November 18, 2011. The Court likewise resolved to issue a TRO in the consolidated petitions,
enjoining the respondents from enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-
11-237 dated August 9, 2011, 2011-422 dated September 6, 2011, and 2011-573 dated October
27, 2011, subject to the following conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00) payable to this Court
within five (5) days from notice hereof. Failure to post the bond within the aforesaid period will
result in the automatic lifting of the temporary restraining order;
(ii) The petitioners shall appoint a legal representative common to both of them who will receive
subpoena, orders and other legal processes on their behalf during their absence. The petitioners
shall submit the name of the legal representative, also within five (5) days from notice hereof; and
(iii) If there is a Philippine embassy or consulate in the place where they will be traveling, the
petitioners shall inform said embassy or consulate by personal appearance or by phone of their
whereabouts at all times;34
On the very day of the issuance of the TRO, the petitioners tendered their compliance35 with the
conditions set forth in the Resolution dated November 15, 2011 of the Court and submitted the
following: (1) a copy of Official Receipt No. 0030227-SC-EP, showing the payment of the required
cash bond of Two Million Pesos (P2,000,000.00);36 (2) certification from the Fiscal and Management
and Budget Office of the Supreme Court, showing that the cash bond is already on file with the
office;37 (3) special powers of attorney executed by the petitioners, appointing their respective
lawyers as their legal representatives;38and (4) an undertaking to report to the nearest consular
office in the countries where they will travel.39
At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino International
Airport (NAIA), with an aide-de-camp and a private nurse, to take their flights to Singapore.
However, the BI officials at NAIA refused to process their travel documents which ultimately resulted
to them not being able to join their flights.40
On November 17, 2011, GMA, through counsel, filed an Urgent Motion41 for Respondents to Cease
and Desist from Preventing Petitioner GMA from Leaving the Country. She strongly emphasized that
the TRO issued by the Court was immediately executory and that openly defying the same is
tantamount to gross disobedience and resistance to a lawful order of the Court.42 Not long after,
Miguel Arroyo followed through with an Urgent Manifestation,43 adopting and repleading all the
allegations in GMA's motion.
On November 16, 2011, the respondents filed a Consolidated Urgent Motion for Reconsideration
and/or to Lift TRO,44 praying that the Court reconsider and set aside the TRO issued in the
consolidated petitions until they are duly heard on the merits. In support thereof, they argue that
the requisites for the issuance of a TRO and writ of preliminary injunction were not established by
the petitioners. To begin with, the petitioners failed to present a clear and mistakable right which
needs to be protected by the issuance of a TRO. While the petitioners anchor their right in esse on
the right to travel under Section 6, Article III of the 1987 Constitution, the said right is not absolute.
One of the limitations on the right to travel is DOJ Circular No. 41, which was issued pursuant to the
rule-making powers of the DOJ in order to keep individuals under preliminary investigation within
the jurisdiction of the Philippine criminal justice system. With the presumptive constitutionality of
DOJ Circular No. 41, the petitioners cannot claim that they have a clear and unmistakable right to
leave the country as they are the very subject of the mentioned issuance.45 Moreover, the issuance
of a TRO will effectively render any judgment on the consolidated petitions moot and academic. No
amount of judgment can recompense the irreparable injury that the state is bound to suffer if the
petitioners are permitted to leave the Philippine jurisdiction.46
On November 18, 2011, the Court issued a Resolution,47 requiring De Lima to show cause why she
should not be disciplinarily dealt with or held in contempt of court for failure to comply with the TRO.
She was likewise ordered to immediately comply with the TRO by allowing the petitioners to leave
the country. At the same time, the Court denied the Consolidated Urgent Motion for Reconsideration
and/or to Lift TRO dated November 16, 2011 filed by the Office of the Solicitor General.48
On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary
Investigation Committee, filed an information for the crime of electoral sabotage under Section
43(b) of Republic Act (R.A.) No. 9369 against GMA, among others, before the Regional Trial Court
(RTC) of Pasay City, which was docketed as R-PSY-11-04432-CR49 and raffled to Branch 112. A
warrant of arrest for GMA was forthwith issued.
Following the formal filing of an Information in court against GMA, the respondents filed an Urgent
Manifestation with Motion to Lift TRO.50 They argue that the filing of the information for electoral
sabotage against GMA is a supervening event which warrants the lifting of the TRO issued by this
Court. They asseverate that the filing of the case vests the trial court the jurisdiction to rule on the
disposition of the case. The issue therefore on the validity of the assailed WLOs should properly be
raised and threshed out before the RTC of Pasay City where the criminal case against GMA is
pending, to the exclusion of all other courts.51
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the complaint for
violation of OEC and electoral sabotage against Miguel Arroyo, among others, which stood as the
basis for the issuance of WLO No. 2011-573. Conformably, the DOJ issued an Order dated
November 21, 2011,52lifting WLO No. 2011-573 against Miguel Arroyo and ordering for the removal
of his name in the BI watchlist.
Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on November
22, 2011, despite requests from the petitioners' counsels for an earlier date. Upon the conclusion of
the oral arguments on December 1, 2011, the parties were required to submit their respective
memoranda.53
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 2011  was issued against
54
Genuinos, among others, after criminal complaints for Malversation, as defined under Article 217 of
the Revised Penal Code (RPC), and Violation of Sections 3(e), (g), (h) and (i) of R.A. No. 3019 were
filed against them by the Philippine Amusement and Gaming Corporation (PAGCOR), through its
Director, Eugene Manalastas, with the DOJ on June 14, 2011, for the supposed diversion of funds for
the film "Baler." This was followed by the filing of another complaint for Plunder under R.A. No.
7080, Malversation under Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019, against
the same petitioners, as well as members and incorporators of BIDA Production, Inc. Wildformat,
Inc. and Pencil First, Inc., for allegedly siphoning off PAGCOR funds into the coffers of BIDA entities.
Another complaint was thereafter filed against Efraim and Erwin was filed before the Office of the
Ombudsman for violation of R.A. No. 3019 for allegedly releasing PAGCOR funds intended for the
Philippine Sports Commission directly to the Philippine Amateur Swimming Association, Inc.55 In a
Letter56 dated July 29, 2011 addressed to Chief State Counsel Ricardo Paras, the Genuinos, through
counsel, requested that the HDO against them be lifted. This plea was however denied in a
Letter57 dated August 1, 2011 which prompted the institution of the present petition by the
Genuinos. In a Resolution58 dated April 21, 2015, the Court consolidated the said petition with G.R.
Nos. 199034 and 199046.
The Court, after going through the respective memoranda of the parties and their pleadings, sums
up the issues for consideration as follows:
I constitutional issues raised in the petition, resolves to put to rest the lingering constitutional
WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;
II
WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and
III
WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF CONTEMPT OF
COURT.
Ruling of the Court
The Court may exercise its power of judicial review despite the filing of information for electoral
sabotage against GMA. It is the respondents' contention that the present petitions should be
dismissed for lack of a justiciable controversy. They argue that the instant petitions had been
rendered moot and academic by (1) the expiration of the WLO No. 422 dated August 9, 2011, as
amended by the Order dated September 6, 2011;59 (2) the filing of an information for electoral
sabotage against GMA,60 and; (3) the lifting of the WLO No. 2011-573 dated November 14, 2011
against Miguel Arroyo and the subsequent deletion of his name from the BI watchlist after the
COMELEC en banc dismissed the case for electoral sabotage against him.61
The power of judicial review is articulated in Section 1, Article VIII of the 1987 Constitution which
reads:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
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.62
Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis motaof the case.63
Except for the first requisite, there is no question with respect to the existence of the three (3) other
requisites. Petitioners have the locus standi to initiate the petition as they claimed to have been
unlawfully subjected to restraint on their right to travel owing to the issuance of WLOs against them
by authority of DOJ Circular No. 41. Also, they have contested the constitutionality of the questioned
issuances at the most opportune time.
The respondents, however, claim that the instant petitions have become moot and academic since
there is no longer any actual case or controversy to resolve following the subsequent filing of an
information for election sabotage against GMA on November 18, 2011 and the lifting of WLO No.
2011-573 against Miguel Arroyo and the deletion of his name from the BI watchlist after the
dismissal of the complaint for electoral sabotage against him.
To be clear, "an actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties
having adverse legal interest; a real and substantial controversy admitting of specific relief."64 When
the issues have been resolved or when the circumstances from which the legal controversy arose no
longer exist, the case is rendered moot and academic. "A moot and academic case is one that
ceases to present a justiciable controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value."65
The Court believes that the supervening events following the filing of the instant petitions, while
may have seemed to moot the instant petitions, will not preclude it from ruling on the constitutional
issues raised by the petitioners. The Court, after assessing the necessity and the invaluable gain
that the members of the bar, as well as the public may realize from the academic discussion of the
questions that abound the assailed issuance. This is not a novel occurrence as the Court, in a
number of occasions, took up cases up to its conclusion notwithstanding claim of mootness.
In Evelio Javier vs. The Commission on Elections,66 the Court so emphatically stated, thus:
The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the
government. The citizen comes to us in quest of law but we must also give him justice. The two are
not always the same. There are times when we cannot grant the latter because the issue has been
settled and decision is no longer possible according to the law. But there are also times when
although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved.
Justice demands that we act then, not only for the vindication of the outraged right, though gone,
but also for the guidance of and as a restraint upon the future.67
In Prof. David vs. Pres. Macapagal-Arroyo,68 the Court proceeded in ruling on the constitutionality of
Presidential Proclamation (PP) No. 1017 in which GMA declared a state of national emergency, and
General Order No. 5 (G.O. No. 5), which ordered the members of the Armed Forces of the
Philippines and the Philippine National Police to carry all necessary actions to suppress acts of
terrorism and lawless violence, notwithstanding the issuance of PP 1021 lifting both issuances. The
Court articulated, thus:
The Court holds that President Arroyo's issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must be stressed that unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative.
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review.69(Citations omitted and emphasis supplied)
In the instant case, there are exceptional circumstances that warrant the Court's exercise of its
power of judicial review. The petitioners impute the respondents of violating their constitutional right
to travel through the enforcement of DOJ Circular No. 41. They claim that the issuance
unnecessarily places a restraint on the right to travel even in the absence of the grounds provided in
the Constitution.
There is also no question that the instant petitions involved a matter of public interest as the
petitioners are not alone in this predicament and there can be several more in the future who may
be similarly situated. It is not far fetched that a similar challenge to the constitutionality of DOJ
Circular No. 41 will recur considering the thousands of names listed in the watch list of the DOJ, who
may brave to question the supposed illegality of the issuance. Thus, it is in the interest of the public,
as well as for the education of the members of the bench and the bar, that this Court takes up the
instant petitions and resolves the question on the constitutionality of DOJ Circular No. 41.
The Constitution is inviolable and supreme of all laws
We begin by emphasizing that the Constitution is the fundamental, paramount and supreme law of
the nation; it is deemed written in every statute and contract.70 If a law or an administrative rule
violates any norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is a testament to the living democracy in this jurisdiction. It contains the
compendium of the guaranteed rights of individuals, as well as the powers granted to and
restrictions imposed on government officials and instrumentalities. It is that lone unifying code, an
inviolable authority that demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are enumerated in the Bill of
Rights contained in Article III. In particular, Section 1 thereof provides:
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.
The guaranty of liberty does not, however, imply unbridled license for an individual to do whatever
he pleases, for each is given an equal right to enjoy his liberties, with no one superior over another.
Hence, the enjoyment of one's liberties must not infringe on anyone else's equal entitlement.
Surely, the Bill of Rights operates as a protective cloak under which the individual may assert his
liberties. Nonetheless, "the Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties. Even liberty itself, the greatest of all rights, is not unrestricted license
to act according to one's will. It is subject to the far more overriding demands and requirements of
the greater number."71
It is therefore reasonable that in order to achieve communal peace and public welfare, calculated
limitations in the exercise of individual freedoms are necessary. Thus, in many significant provisions,
the Constitution itself has provided for exceptions and restrictions to balance the free exercise of
rights with the equally important ends of promoting common good, public order and public safety.
The state's exercise of police power is also well-recognized in this jurisdiction as an acceptable
limitation to the exercise of individual rights. In Philippine Association of Service Exporters, Inc. vs.
Drilon,72 it was defined as the inherent and plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety, and welfare of society. It is rooted in the conception that men
in organizing the state and imposing upon its government limitations to safeguard constitutional
rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated to ensure communal peace,
safety, good order, and welfare.73
Still, it must be underscored that in a constitutional government like ours, liberty is the rule and
restraint the exception.74 Thus, restrictions in the exercise of fundamental liberties are heavily
guarded against so that they may not unreasonably interfere with the free exercise of constitutional
guarantees.
The right to travel and its limitations
The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process
of law.75 It is part and parcel of the guarantee of freedom of movement that the Constitution affords
its citizen. Pertinently, Section 6, Article III of the Constitution provides:
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 maybe provided by law.
Liberty under the foregoing clause includes the right to choose one's residence, to leave it whenever
he pleases and to travel wherever he wills.76 Thus, in Zacarias Villavicencio vs. Justo Lucban,77 the
Court held illegal the action of the Mayor of Manila in expelling women who were known prostitutes
and sending them to Davao in order to eradicate vices and immoral activities proliferated by the said
subjects. It was held that regardless of the mayor's laudable intentions, no person may compel
another to change his residence without being expressly authorized by law or regulation.
It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory
and inherent limitations regulating the right to travel. Section 6 itself provides that the right to
travel may be impaired only in the interest of national security, public safety or public health, as
may be provided by law. In Silverio vs. Court of Appeals,78 the Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of
travel may be impaired even without Court Order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion to impose limitations. They can
impose limits only on the basis of "national security, public safety, or public health" and "as
may be provided by law," a limitive phrase which did not appear in the 1973 text (The
Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the
phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed
under the previous regime when there was a Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested party.79 (Emphasis ours)
Clearly, under the provision, there are only three considerations that may permit a restriction on the
right to travel: national security, public safety or public health. As a further requirement, there must
be an explicit provision of statutory law or the Rules of Court80 providing for the impairment. The
requirement for a legislative enactment was purposely added to prevent inordinate restraints on the
person's right to travel by administrative officials who may be tempted to wield authority under the
guise of national security, public safety or public health. This is in keeping with the principle that
ours is a government of laws and not of men and also with the canon that provisions of law limiting
the enjoyment of liberty should be construed against the government and in favor of the
individual.81
The necessity of a law before a curtailment in the freedom of movement may be permitted is
apparent in the deliberations of the members of the Constitutional Commission. In particular, Fr.
Joaquin Bernas, in his sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase "and
changing the same" is taken from the 1935 version; that is, changing the abode. The addition of the
phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether the rights be impaired on
order of a court or without the order of a court, the impairment must be in accordance with the
prescriptions of law; that is, it is not left to the discretion of any public officer.82
It is well to remember that under the 1973 Constitution, the right to travel is compounded with the
liberty of abode in Section 5 thereof, which reads:
Section 5, 1973 Constitution: 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. (Emphasis ours)
The provision, however, proved inadequate to afford protection to ordinary citizens who were
subjected to "hamletting" under the Marcos regime.83 Realizing the loophole in the provision, the
members of the Constitutional Commission agreed that a safeguard must be incorporated in the
provision in order to avoid this unwanted consequence. Thus, the Commission meticulously framed
the subject provision in such a manner that the right cannot be subjected to the whims of any
administrative officer. In addressing the loophole, they found that requiring the authority of a law
most viable in preventing unnecessary intrusion in the freedom of movement, viz.:
MR. NOLLEDO. x x x x
My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that the liberty of
abode shall not be impaired except upon lawful order of the court or - underscoring the word "or" -
when necessary in the interest of national security, public safety or public health. So, in the first
part, there is the word "court"; in the second part, it seems that the question rises as to who
determines whether it is in the interest of national security, public safety, or public health. May it be
determined merely by administrative authorities?
FR. BERNAS. The understanding we have of this is that, yes, it may be determined by administrative
authorities provided that they act, according to line 9, within the limits prescribed by law. For
instance when this thing came up; what was in mind were passport officers. If they want to deny a
passport on the first instance, do they have to go to court? The position is, they may deny a
passport provided that the denial is based on the limits prescribed by law. The phrase "within the
limits prescribed by law" is something which is added here. That did not exist in the old
provision.84
During the discussions, however, the Commission realized the necessity of separating the concept of
liberty of abode and the right to travel in order to avoid untoward results. Ultimately, distinct
safeguards were laid down which will protect the liberty of abode and the right to travel
separately, viz.:
MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11.
Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin ang
walang pakundangang paglabag sa liberty of abode sa ngalan ng national security at pagsasagawa
ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang
"hamletting" upon lawful order of the court. x x x.
xxxx

MR. RODRIGO. Aside from that, this includes the right to travel?
FR. BERNAS. Yes.
MR. RODRIGO. And there are cases when passports may not be granted or passports already
granted may be cancelled. If the amendment is approved, then passports may not be cancelled
unless it is ordered by the court. Is that the intention? x x x x
FR. BERNAS. Yes
MR. RODRIGO. But another right is involved here and that is to travel.
SUSPENSION OF SESSION
FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty of
abode and or changing the same from the right to travel, because they may necessitate different
provisions.
THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.
xxxx
RESUMPTION OF SESSION
xxxx
THE PRESIDING OFFICER (Mr. Bengzon). Commissioner Bernas is recognized
The session is resumed.
FR. BERNAS. The proposal is amended to read:
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 MAYBE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as
amended. Is there any objection? (Silence) The Chair hears none; the amendment, as amended, is
approved.85
It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the
court and, on the one hand, the right to travel may only be impaired by a law that concerns national
security, public safety or public health. Therefore, when the exigencies of times call for a limitation
on the right to travel, the Congress must respond to the need by explicitly providing for the
restriction in a law. This is in deference to the primacy of the right to travel, being a constitutionally-
protected right and not simply a statutory right, that it can only be curtailed by a legislative
enactment.
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,86 the Court
upheld the validity of the Department Order No. 1, Series of 1988, issued by the Department of
Labor and Employment, which temporarily suspended the deployment of domestic and household
workers abroad. The measure was taken in response to escalating number of female workers abroad
who were subjected to exploitative working conditions, with some even reported physical and
personal abuse. The Court held that Department Order No. 1 is a valid implementation of the Labor
Code, particularly, the policy to "afford protection to labor." Public safety considerations justified the
restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court
Administrator (OCA) vs. Wilma Salvacion P. Heusdens,87 the Court enumerated the statutes which
specifically provide for the impairment of the right to travel, viz.:
Some of these statutory limitations [to the right to travel] are the following:
1] The Human Security Act of 2010 or [R.A.] No. 9372. The law restricts the right to travel of an
individual charged with the crime of terrorism even though such person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of
Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or
withdraw, a passport of a Filipino citizen.
3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions
thereof, the [BI], in order to manage migration and curb trafficking in persons, issued Memorandum
Order Radir No. 2011-011, allowing its Travel Control and Enforcement Unit to "offload passengers
with fraudulent travel documents, doubtful purpose of travel, including possible victims of human
trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A.
No. 10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA)
may refuse to issue deployment permit to a specific country that effectively prevents our migrant
workers to enter such country.
5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement
of an individual against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country
Adoption Board may issue rules restrictive of an adoptee's right to travel "to protect the Filipino child
from abuse, exploitation, trafficking and/or sale or any other practice in connection with adoption
which is harmful, detrimental, or prejudicial to the child."88
In any case, when there is a dilemma between an individual claiming the exercise of a constitutional
right vis-a-vis the state's assertion of authority to restrict the same, any doubt must, at all times, be
resolved in favor of the free exercise of the right, absent any explicit provision of law to the
contrary.
The issuance of DOJ Circular No. 41 has no legal basis
Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which
the DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law
particularly providing for the authority of the secretary of justice to curtail the exercise of the right
to travel, in the interest of national security, public safety or public health. As it is, the only ground
of the former DOJ Secretary in restraining the petitioners, at that time, was the pendency of the
preliminary investigation of the Joint DOJ-COMELEC Preliminary Investigation Committee on the
complaint for electoral sabotage against them.89
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the
scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere
administrative issuance apparently designed to carry out the provisions of an enabling law which the
former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the
"Administrative Code of 1987." She opined that DOJ Circular No. 41 was validly issued pursuant to
the agency's rule-making powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O.
No. 292 and Section 50, Chapter 11, Book IV of the mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rule-making powers, among others. It is
the "power to make rules and regulations which results in delegated legislation that is within the
confines of the granting statute and the doctrine of non-delegability and separability of powers."90 In
the exercise of this power, the rules and regulations that administrative agencies promulgate should
be within the scope of the statutory authority granted by the legislature to the administrative
agency. It is required that the regulation be germane to the objects and purposes of the law, and be
not in contradiction to, but in conformity with, the standards prescribed by law. They must conform
to and be consistent with the provisions of the enabling statute in order for such rule or regulation
to be valid.91
It is, however, important to stress that before there can even be a valid administrative issuance,
there must first be a showing that the delegation of legislative power is itself valid. It is valid only if
there is a law that (a) is complete in itself, setting forth therein the policy to be executed, carried
out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently
determinate and determinable to which the delegate must conform in the performance of his
functions.92
A painstaking examination of the provisions being relied upon by the former DOJ Secretary will
disclose that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which
effectively restricts the right to travel through the issuance of WLOs and HDOs. Sections 1 and 3,
Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
 Section 1. Declaration of Policy. - It is the declared policy of the State to provide the government
with a principal law agency which shall be both its legal counsel and prosecution arm; administer
the criminal justice system in accordance with the accepted processes thereof consisting
in the investigation of the crimes, prosecution of offenders and administration of the
correctional system; implement the laws on the admission and stay of aliens, citizenship, land titling
system, and settlement of land problems involving small landowners and member of indigenous
cultural minorities; and provide free legal services to indigent members of the society.
xxxx
Section 3. Powers and Functions. - to accomplish its mandate, the Department shall have the
following powers and functions:
(1) Act as principal law agency of the government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and
administer the probation and correction system;
xxxx
(6) Provide immigration and naturalization regulatory services and
implement the laws governing citizenship and the admission and stay of
aliens;
(7) Provide legal services to the national government and its functionaries,
including government-owned and controlled  jurisdiction of the Department;
 corporations and their subsidiaries;
(8) Such other functions as may be provided by law. (Emphasis
supplied)
A plain reading of the foregoing provisions shows that they are mere general provisions designed to
lay down the purposes of the enactment and the broad enumeration of the powers and functions of
the DOJ. In no way can they be interpreted as a grant of power to curtail a fundamental right as the
language of the provision itself does not lend to that stretched construction. To be specific, Section 1
is simply a declaration of policy, the essence of the law, which provides for the statement of the
guiding principle, the purpose and the necessity for the enactment. The declaration of policy is most
useful in statutory construction as an aid in the interpretation of the meaning of the substantive
provisions of the law. It is preliminary to the substantive portions of the law and certainly not the
part in which the more significant and particular mandates are contained. The suggestion of the
former DOJ Secretary that the basis of the issuance of DOJ Circular No. 41 is contained in the
declaration of policy of E.O. No. 292 not only defeats logic but also the basic style of drafting a
decent piece of legislation because it supposes that the authors of the law included the operative
and substantive provisions in the declaration of policy when its objective is merely to introduce and
highlight the purpose of the law.
Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of the
substantive portions of the act. Such provisions are available for clarification of ambiguous
substantive portions of the act, but may not be used to create ambiguity in other substantive
provisions." 93
In the same way, Section 3 does not authorize the DOJ to issue WLOs and HDOs to restrict the
constitutional right to travel. There is even no mention of the exigencies stated in the Constitution
that will justify the impairment. The provision simply grants the DOJ the power to investigate the
commission of crimes and prosecute offenders, which are basically the functions of the agency.
However, it does not carry with it the power to indiscriminately devise all means it deems proper in
performing its functions without regard to constitutionally-protected rights. The curtailment of a
fundamental right, which is what DOJ Circular No. 41 does, cannot be read into the mentioned
provision of the law. Any impairment or restriction in the exercise of a constitutional right must be
clear, categorical and unambiguous. For the rule is that:
Constitutional and statutory provisions control with respect to what rules and regulations may be
promulgated by an administrative body, as well as with respect to what fields are subject to
regulation by it. It may not make rules and regulations which are inconsistent with the provisions of
the Constitution or a statute, particularly the statute it is administering or which created it, or which
are in derogation of, or defeat, the purpose of a statute.94
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which simply provides
for the types of issuances that administrative agencies, in general, may issue. It does not speak of
any authority or power but rather a mere clarification on the nature of the issuances that may be
issued by a secretary or head of agency. The innocuous provision reads as follows:
Section 50. General Classification of Issuances. - The administrative issuances of Secretaries and
heads of bureaus, offices and agencies shall be in the form of circulars or orders.
(1) Circulars shall refer to issuance prescribing policies, rules and regulations, and procedures
promulgated pursuant to law, applicable to individuals and organizations outside the Government
and designed to supplement provisions of the law or to provide means for carrying them out,
including information relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials, or employees, concerning
specific matters including assignments, detail and transfer of personnel, for observance or
compliance by all concerned. (Emphasis Ours)
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the memorandum
of the former DOJ Secretary cannot justify the restriction on the right to travel in DOJ Circular No.
41. The memorandum particularly made reference to Subsections 3, 4 and 9 which state:
Section 7. Powers and Functions of the Secretary. - The Secretary shall:
(1) Advise the President in issuing executive orders, regulations,
proclamations and other issuances, the promulgation of which is
expressly vested by law in the President relative to matters under the
(2) Establish the policies and standards for the operation of the Department
pursuant to the approved programs of governments;
(3) Promulgate rules and regulations necessary to carry out
department objectives, policies, functions, plans, programs and
projects;
(4) Promulgate administrative issuances necessary for the efficient
administration of the offices under the Secretary and for proper
execution of the laws relative thereto. These issuances shall not
prescribe penalties for their violation, except when expressly
authorized by law;
xxxx
(9) Perform such other functions as may be provided by law. (Emphasis
Ours)
It is indisputable that the secretaries of government agencies have the power to promulgate rules
and regulations that will aid in the performance of their functions. This is adjunct to the power of
administrative agencies to execute laws and does not require the authority of a law. This is,
however, different from the delegated legislative power to promulgate rules of government
agencies.
The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly AASJS) et al. vs.
Hon. Purisima et al.,95 is illuminating:
The inherent power of the Executive to adopt rules and regulations to execute or implement the law
is different from the delegated legislative power to prescribe rules. The inherent power of the
Executive to adopt rules to execute the law does not require any legislative standards for its
exercise while the delegated legislative power requires sufficient legislative standards for its
exercise.
xxxx
Whether the rule-making power by the Executive is a delegated legislative power or an inherent
Executive power depends on the nature of the rule-making power involved. If the rule-making
power is inherently a legislative power, such as the power to fix tariff rates, the rule-making power
of the Executive is a delegated legislative power. In such event, the delegated power can be
exercised only if sufficient standards are prescribed in the law delegating the power.
If the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President, the rule-making power of the President is not a
delegated legislative power, x x x. The rule is that the President can execute the law without any
delegation of power from the legislature. Otherwise, the President becomes a mere figure-head and
not the sole Executive of the Government.96
The questioned circular does not come under the inherent power of the executive department to
adopt rules and regulations as clearly the issuance of HDO and WLO is not the DOJ's business. As
such, it is a compulsory requirement that there be an existing law, complete and sufficient in itself,
conferring the expressed authority to the concerned agency to promulgate rules. On its own, the
DOJ cannot make rules, its authority being confined to execution of laws. This is the import of the
terms "when expressly provided by law" or "as may be provided by law" stated in Sections 7(4) and
7(9), Chapter 2, Title III, Book IV of E.O. 292. The DOJ is confined to filling in the gaps and the
necessary details in carrying into effect the law as enacted.97 Without a clear mandate of an existing
law, an administrative issuance is ultra vires.
Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must
derive its life. Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not
pass the completeness test and sufficient standard test. The DOJ miserably failed to establish the
existence of the enabling law that will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the
question. The purpose, no matter how commendable, will not obliterate the lack of authority of the
DOJ to issue the said issuance. Surely, the DOJ must have the best intentions in promulgating DOJ
Circular No. 41, but the end will not justify the means. To sacrifice individual liberties because of a
perceived good is disastrous to democracy. In Association of Small Landowners in the Philippines,
Inc. vs. Secretary of Agrarian Reform,98 the Court emphasized:
One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is
also necessary that the means employed to pursue it be in keeping with the Constitution. Mere
expediency will not excuse constitutional shortcuts. There is no question that not even the strongest
moral conviction or the most urgent public need, subject only to a few notable exceptions, will
excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a
right guaranteed under Article III of the Constitution is a majority of one even as against the rest of
the nation who would deny him that right.99
The DOJ would however insist that the resulting infringement of liberty is merely incidental, together
with the consequent inconvenience, hardship or loss to the person being subjected to the restriction
and that the ultimate objective is to preserve the investigative powers of the DOJ and public
order.100 It posits that the issuance ensures the presence within the country of the respondents
during the preliminary investigation.101 Be that as it may, no objective will ever suffice to legitimize
desecration of a fundamental right. To relegate the intrusion as negligible in view of the supposed
gains is to undermine the inviolable nature of the protection that the Constitution affords.
Indeed, the DOJ has the power to investigate the commission of crimes and prosecute offenders. Its
zealousness in pursuing its mandate is laudable but more admirable when tempered by fairness and
justice. It must constantly be reminded that in the hierarchy of rights, the Bill of Rights takes
precedence over the right of the State to prosecute, and when weighed against each other, the
scales of justice tilt towards the former.102 Thus, in Allado vs. Diokno,103 the Court declared, viz.:
The sovereign power has the inherent right to protect itself and its people from vicious acts which
endanger the proper administration of justice; hence, the State has every right to prosecute and
punish violators of the law. This is essential for its self-preservation, nay, its very existence. But this
does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is
not a carte blanche for government agents to defy and disregard the rights of its citizens under the
Constitution.104
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to allow the
petitioners, who are under preliminary investigation, to exercise an untrammelled right to travel,
especially when the risk of flight is distinctly high will surely impede the efficient and effective
operation of the justice system. The absence of the petitioners, it asseverates, would mean that the
farthest criminal proceeding they could go would be the filing of the criminal information since they
cannot be arraigned in absentia.105
The predicament of the DOJ is understandable yet untenable for relying on grounds other what is
permitted within the confines of its own power and the nature of preliminary investigation itself. The
Court, in Paderanga vs. Drilon,106 made a clarification on the nature of a preliminary investigation,
thus:
A preliminary investigation is x x x an inquiry or proceeding for the purpose of determining whether
there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional
Trial Court has been committed and that the respondent is probably guilty thereof, and should be
held for trial. x x x A preliminary investigation is not the occasion for the full and exhaustive display
of the parties' evidence; it is for the presentation of such evidence only as may engender a well
grounded belief that an offense has been committed and that the accused is probably guilty
thereof.107
It bears emphasizing that the conduct of a preliminary investigation is an implement of due process
which essentially benefits the accused as it accords an opportunity for the presentation of his side
with regard to the accusation.108 The accused may, however, opt to waive his presence in the
preliminary investigation. In any case, whether the accused responds to a subpoena, the
investigating prosecutor shall resolve the complaint within 10 days after the filing of the same.
The point is that in the conduct of a preliminary investigation, the presence of the accused is not
necessary for the prosecutor to discharge his investigatory duties. If the accused chooses to waive
his presence or fails to submit countervailing evidence, that is his own lookout. Ultimately, he shall
be bound by the determination of the prosecutor on the presence of probable cause and he cannot
claim denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular
No. 41 on the ground that it is necessary to ensure presence and attendance in the preliminary
investigation of the complaints. There is also no authority of law granting it the power to compel the
attendance of the subjects of a preliminary investigation, pursuant to its investigatory powers under
E.O. No. 292. Its investigatory power is simply inquisitorial and, unfortunately, not broad enough to
embrace the imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an
administrative issuance to keep the individual within the Philippine jurisdiction so that he may not
be able to evade criminal prosecution and consequent liability. It is an arrogation of power it does
not have; it is a usurpation of function that properly belongs to the legislature.
Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the
DOJ of empowering itself under the pretext of dire exigency or urgent necessity. This action runs
afoul the separation of powers between the three branches of the government and cannot be
upheld. Even the Supreme Court, in the exercise of its power to promulgate rules is limited in that
the same shall not diminish, increase, or modify substantive rights.109 This should have cautioned
the DOJ, which is only one of the many agencies of the executive branch, to be more scrutinizing in
its actions especially when they affect substantive rights, like the right to travel.
The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the right to
travel were found reasonable, i.e. New York v. O'Neill,110Kwong vs. Presidential Commission on Good
Government111 and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEI to support its position for the
reasons stated earlier in this disquisition. In the same manner, Kant Kwong is not an appropriate
authority since the Court never ruled on the constitutionality of the authority of the PCGG to issue
HDOs in the said case. On the contrary, there was an implied recognition of the validity of the
PCGG's Rules and Regulations as the petitioners therein even referred to its provisions to challenge
the PCGG's refusal to lift the HDOs issued against them despite the lapse of the period of its
effectivity. The petitioners never raised any issue as to the constitutionality of Section 2 of the PCGG
Rules and Regulations but only questioned the agency's non-observance of the rules particularly on
the lifting of HDOs. This is strikingly different from the instant case where the main issue is the
constitutionality of the authority of the DOJ Secretary to issue HDOs under DOJ Circular No. 41.
Similarly, the pronouncement is New York does not lend support to the respondents' case. In the
said case, the respondent therein questioned the constitutionality of a Florida statute entitled
"Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal
Proceedings," under which authority a judge of the Court of General Sessions, New York County
requested the Circuit Court of Dade County, Florida, where he was at that time, that he be given
into the custody of New York authorities and be transported to New York to testify in a grand jury
proceeding. The US Supreme Court upheld the constitutionality of the law, ruling that every citizen,
when properly summoned, has the obligation to give testimony and the same will not amount to
violation of the freedom to travel but, at most, a mere temporary interference. The clear deviation
of the instant case from New York is that in the latter case there is a law specifically enacted to
require the attendance of the respondent to court proceedings to give his testimony, whenever it is
needed. Also, after the respondent fulfils his obligation to give testimony, he is absolutely free to
return in the state where he was found or to his state of residence, at the expense of the requesting
state. In contrast, DOJ Circular No. 41 does not have an enabling law where it could have derived its
authority to interfere with the exercise of the right to travel. Further, the respondent is subjected to
continuing restraint in his right to travel as he is not allowed to go until he is given, if he will ever be
given, an ADO by the secretary of justice.
The DOJ cannot issue DOJ Circular No. 41 under the guise of police power
The DOJ's reliance on the police power of the state cannot also be countenanced. Police power
pertains to the "state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare."112 "It may be said to be that inherent and plenary
power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare
of society."113 Verily, the exercise of this power is primarily lodged with the legislature but may be
wielded by the President and administrative boards, as well as the lawmaking bodies on all
municipal levels, including the barangay, by virtue of a valid delegation of power.114
It bears noting, however, that police power may only be validly exercised if (a) the interests of the
public generally, as distinguished from those of a particular class, require the interference of the
State, and (b) the means employed are reasonably necessary to the attainment of the object sought
to be accomplished and not unduly oppressive upon individuals.115
On its own, the DOJ cannot wield police power since the authority pertains to Congress. Even if it
claims to be exercising the same as the alter ego of the President, it must first establish the
presence of a definite legislative enactment evidencing the delegation of power from its principal.
This, the DOJ failed to do. There is likewise no showing that the curtailment of the right to travel
imposed by DOJ Circular No. 41 was reasonably necessary in order for it to perform its investigatory
duties.
In any case, the exercise of police power, to be valid, must be reasonable and not repugnant to the
Constitution.116 It must never be utilized to espouse actions that violate the Constitution. Any act,
however noble its intentions, is void if it violates the Constitution.117 In the clear language of the
Constitution, it is only in the interest of national security, public safety and public health that the
right to travel may be impaired. None one of the mentioned circumstances was invoked by the DOJ
as its premise for the promulgation of DOJ Circular No. 41.
DOJ Circular No. 41 transcends constitutional limitations
Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious infirmities that
render it invalid. The apparent vagueness of the circular as to the distinction between a HDO and
WLO is violative of the due process clause. An act that is vague "violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of the conduct to avoid and leaves
law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the Government muscle."118 Here, the distinction is significant as it will inform the respondents of
the grounds, effects and the measures they may take to contest the issuance against them. Verily,
there must be a standard by which a HDO or WLO may be issued, particularly against those whose
cases are still under preliminary investigation, since at that stage there is yet no criminal
information against them which could have warranted the restraint.
Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it emanates from
the DOJ's assumption of powers that is not actually conferred to it. In one of the whereas clauses of
the issuance, it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through the Office of the Court
Administrator, clearly state that "[HDO] shall be issued only in criminal cases within the exclusive
jurisdiction of the [RTCs]," said circulars are, however, silent with respect to cases falling within the
jurisdiction of courts below the RTC as well as those pending determination by government
prosecution offices;
Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was the
supposed inadequacy of the issuances of this Court pertaining to HDOs, the more pertinent of which
is SC Circular No. 39-97.119 It is the DOJ's impression that with the silence of the circular with regard
to the issuance of HDOs in cases falling within the jurisdiction of the MTC and those still pending
investigation, it can take the initiative in filling in the deficiency. It is doubtful, however, that the
DOJ Secretary may undertake such action since the issuance of HDOs is an exercise of this Court's
inherent power "to preserve and to maintain the effectiveness of its jurisdiction over the case and
the person of the accused."120 It is an exercise of judicial power which belongs to the Court alone,
and which the DOJ, even as the principal law agency of the government, does not have the
authority to wield.
Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No.
41 is not without good reasons. Circular No. 39-97 was specifically issued to avoid indiscriminate
issuance of HDOs resulting to the inconvenience of the parties affected as the same could amount to
an infringement on the right and liberty of an individual to travel. Contrary to the understanding of
the DOJ, the Court intentionally held that the issuance of HDOs shall pertain only to criminal cases
within the exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling within the
jurisdiction of the MTC and all other cases. The intention was made clear with the use of the term
"only." The reason lies in seeking equilibrium between the state's interest over the prosecution of
the case considering the gravity of the offense involved and the individual's exercise of his right to
travel. Thus, the circular permits the intrusion on the right to travel only when the criminal case
filed against the individual is within the exclusive jurisdiction of the RTC, or those that pertains to
more serious crimes or offenses that are punishable with imprisonment of more than six years. The
exclusion of criminal cases within the jurisdiction of the MTC is justified by the fact that they pertain
to less serious offenses which is not commensurate with the curtailment of a fundamental right.
Much less is the reason to impose restraint on the right to travel of respondents of criminal cases
still pending investigation since at that stage no information has yet been filed in court against
them. It is for these reasons that Circular No. 39-97 mandated that FIDO may only be issued in
criminal cases filed with the RTC and withheld the same power from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming powers which
have been withheld from the lower courts in Circular No. 39-97. In the questioned circular, the DOJ
Secretary may issue HDO against the accused in criminal cases within the jurisdiction of the
MTC121 and against defendants, respondents and witnesses in labor or administrative cases,122 no
matter how unwilling they may be. He may also issue WLO against accused in criminal cases
pending before the RTC,123 therefore making himself in equal footing with the RTC, which is
authorized by law to issue HDO in the same instance. The DOJ Secretary may likewise issue WLO
against respondents in criminal cases pending preliminary investigation, petition for review or
motion for reconsideration before the DOJ.124 More striking is the authority of the DOJ Secretary to
issue a HDO or WLO motu proprio, even in the absence of the grounds stated in the issuance if he
deems necessary in the interest of national security, public safety or public health.125
It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too obtrusive as
it remains effective even after the lapse of its validity period as long as the DOJ Secretary does not
approve the lifting or cancellation of the same. Thus, the respondent continually suffers the restraint
in his mobility as he awaits a favorable indorsement of the government agency that requested for
the issuance of the HDO or WLO and the affirmation of the DOJ Secretary even as the HDO or WLO
against him had become functus officio with its expiration.
It did not also escape the attention of the Court that the DOJ Secretary has authorized himself to
permit a person subject of HDO or WLO to travel through the issuance of an ADO upon showing of
"exceptional reasons" to grant the same. The grant, however, is entirely dependent on the sole
discretion of the DOJ Secretary based on his assessment of the grounds stated in the application.
The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its
assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO
can take the place of a law that authorizes the restraint in the right to travel only in the interest of
national security, public safety or public health. The DOJ Secretary has recognized himself as the
sole authority in the issuance and cancellation of HDO or WLO and in the determination of the
sufficiency of the grounds for an ADO. The consequence is that the exercise of the right to travel of
persons subject of preliminary investigation or criminal cases in court is indiscriminately subjected
to the discretion of the DOJ Secretary.
This is precisely the situation that the 1987 Constitution seeks to avoid—for an executive officer to
impose restriction or exercise discretion that unreasonably impair an individual's right to travel-
thus, the addition of the phrase, "as maybe provided by law" in Section 6, Article III thereof. In
Silverio, the Court underscored that this phraseology in the 1987 Constitution was a reaction to the
ban on international travel imposed under the previous regime when there was a Travel Processing
Center, which issued certificates of eligibility to travel upon application of an interested party.126 The
qualifying phrase is not a mere innocuous appendage. It secures the individual the absolute and free 09 August 2011 (Emphasis ours)
exercise of his right to travel at all times unless the more paramount considerations of national __________________________________
security, public safety and public health call for a temporary interference, but always under the
authority of a law.  Watchlist Order No. 2011-422128

The subject WLOs and the restraint on the right to travel. In re: Issuance of Watchlist
Order against MA. GLORIA M. MACAPAGAL-ARROYO
In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the
wordings thereof. For better illustration, the said WLOs are hereby reproduced as follows: AMENDED ORDER
WLO No. ASM-11-237127
(Watchlist) Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this Department
in connection with the following cases:
In re: GLORIA M. MACAPAGAL-ARROYO
x ------------------------------------- x

Docket
ORDER Title of the Case Offense/s Charged
No.
On 09 August 2011, Hon. Leila M. Dc Lima, Secretary of the Department of Justice issued an order
docketed as Watchlist Order No. 2011-422 directing the Bureau of Immigration to include the XVI-INV- Danilo A. Lihaylihay Plunder
name GLORIA M. MACAPAGAL-ARROYO in the Bureau's Watchlist. 10H-00251 versus Gloria
It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by the
Macapagal-Arroyo
Department of Justice in connection with the following cases:
XVIX-INV- Francisco I, Chavez Plunder, Malversation and/or Illegal Use
11D-00170 versus Gloria of OWWA Funds, Graft and Corruption,
Docket Title of the Case Offense/s Charged Macapagal-Arroyo Violation of the Omnibus Election Code,
No. Violation of the Code of Ethical
Standards for Public Officials, and
XVI-INV- Danilo A. Lihaylihay vs. Plunder Qualified Theft
10H- Gloria Macapagal-
00251 Arroyo XVI-INV- Francisco I. Chavez Plunder, Malversation and/or Illegal Use
11F-00238 versus Gloria of Public Funds, Graft and Corruption,
XVIX-INV- Francisco I. Chavez vs. Plunder, Malversation and/or Illegal use Macapagal-Arroyo Violation of the Omnibus Election Code,
11D- Gloria Macapagl-Arroyo of OWWA Funds, Graft and Corruption, Jocelyn "Joc-Joc" Violation of the Code of Ethical
00170 Violation of The Omnibus Election Code, Bolante, Ibarra Poliquit Standards for Public Officials, and
Violation of the Code of Ethical et al. Qualified Theft
Standards for Public Officials, and
Qualified Theft
Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010 (Consolidated
Rules and Regulations Governing the Issuance and Implementation of Hold Departure Orders,
XVI-INV- Francisco I. Chavez vs. Plunder, Malversation and/or Illegal use Watchlist Orders, and Allow Departure Orders), the undersigned hereby motu proprio issues a
11F- Gloria Macapagl-Arroyo of Public Funds, Graft and Corruption, Watchlist Order against Ma. Gloria M. Macapagal-Arroyo.
00238 Jocelyn "Joc-Joc" Violation of The Omnibus Election Code, Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau
Bolante, Ibarra Poliquit Violation of the Code of Ethical of Immigration's Watchlist the name of Ma. Gloria M. Macapagal-Arroyo.
et al. Standards for Public Officials, and
Qualified Theft Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days from issuance
unless sooner terminated or extended.

Based on the foregoing and pursuant to Department of Justice Circular No. 41 (Consolidated Rules SO ORDERED.
and Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist
Orders, and Allow Departure Orders) dated 25 May 2010, we order the inclusion of the City of Manila, September 6, 2011. (Emphasis ours)
name GLORIA M. MACAPAGAL-ARROYO in the Watchlist.
__________________________________
This watchlist shall be valid for sixty (60) days unless sooner revoked or extended.
Watchlist Order (WLO)
The Airport Operation Division and Immigration Regulation Division Chiefs shall implement this No. 2011-573129
Order.
IN RE: Issuance of WLO against BENJAMIN ABALOS. SR. et al.
Notify the Computer Section.

SO ORDERED. ORDER
Pursuant to Section 2(c) of Department Circular No. 41 dated May 25, 2010 (Consolidated Rules and Name: EFRAIM C. GENUINO
Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist
Orders, and Allow Departure Orders), after careful evaluation, finds the Application for the Issuance
of WLO against the following meritorious;

xxxx

12. MA. GLORIA M.MACAPAGAL-ARROYO 

     Address: Room MB-2, House of Representatives
     Quezon City 
  
x x x x  
 

Ground for Pendency of the case, entitled "DOJ-COMELEC Fact Finding

WLO Issuance: Committee v. Benjamin Abalos Sr., el al." for Electoral
Sabotage/Omnibus Election Code docketed as DOJ-
COMELEC Case No. 001-2011

1. MA. GLORIA M. MACAPAGAL-ARROYO

    Address: Room MB-2, House of Representatives Quezon City

2. JOSE MIGUEL TUASON ARROYO

    Address: L.T.A. Bldg. 118 Perea St. Makati City

x x x x  
 

Ground for WLO Pendency of the case, entitled "Aquilino Pimentel III v.
Issuance: Gloria Macapagal-Arroyo, et Al." for Electoral Sabotage
docketed as DOJ-COMELEC Case No. 002-2011.

Accordingly, the Commissioner of Immigration, Manila, is hereby-ordered to INCLUDE in the Bureau

of Immigration's Watchlist, the names of the above-named persons.

This Order is valid for a period of sixty (60) days from the date of its issuance unless sooner
terminated or otherwise extended.

SO ORDERED.
On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 pertinently
states:    
Hold Departure Order (HDO) 
No. 2011-64130

In re: Issuance of HDO against EFRAIM C. GENUINO, ET AL.

x ------------------------------------- x

ORDER

After a careful evaluation of the application, including the documents attached thereto, for the
issuance of Hold Departure Order (HDO) against the above-named persons filed pursuant to
this Department's Circular (D.C.) No. 41 (Consolidated Rules and Regulations Governing the
Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and Allow Departure
Orders) dated May 25, 2010, we find the application meritorious.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau
of Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F.
GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" F. KING, RENE C. FIGUEROA, ATTY,
CARLOS R. BAUTISTA, JR., EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND JOHNNY G.
TAN.
Nationality: Filipino (I.S. No. XVI-INV-11G-00248)

Last known xxxx

No. 42 Lapu Lapu Street, Magallanes Village, Makati City
address:
Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years unless sooner
Ground for HDO Malversation, Violation of the Anti-Graft and Corrupt terminated.
Issuance: Practices Act, Plunder
SO ORDERED. (Emphasis ours)
On its face, the language of the foregoing issuances does not contain an explicit restraint on the
Pending before the National Prosecution Service, right to travel. The issuances seemed to be a mere directive from to the BI officials to include the
Details of the Case: Department of Justice (NPS Docket No. XV-INV-11F- named individuals in the watchlist of the agency. Noticeably, however, all of the WLOs contained a
common reference to DOJ Circular No. 41, where the authority to issue the same apparently
00229
emanates, and from which the restriction on the right to travel can be traced. Section 5 thereof
provides, thus:
  Pending before the Office of the Ombudsman Section 5. HDO/WLO Lifting or Cancellation - In the lifting or cancellation of the HDO/WLO
issued pursuant to this Circular, the following shall apply:
  (Case No. CPL-C-11-1297)
(a) The HDO may be lifted or cancelled under any of the following
Pending before the National Prosecution Service,
  grounds:
Department of Justice
1. When the validity period of the HDO as provided for in the
  (I.S. No. XVI-INV-11G-00248)
preceding section has already expired;
Name: SHERYLL F. GENUINO-SEE
2. When the accused subject of the HDO has been allowed to
Nationality: Filipino leave the country during the pendency of the case, or has
been acquitted of the charge, or the case in which the
Last known warrant/order of arrest was issued has been dismissed or the
No. 32-a Paseo Parkview, Makati City warrant/order of arrest has been recalled;
address:

Ground for HDO Malversation, Violation of the Anti-Graft and Corrupt 3. When the civil or labor case or case before an administrative agency
Issuance: Practices Act, Plunder of the government wherein the presence of the alien subject of the
HDO/WLO has been dismissed by the court or by appropriate
Pending before the National Prosecution Service, government agency, or the alien has been discharged as a witness
Details of the Case: therein, or the alien has been allowed to leave the country;
Department of Justice

(I.S. No. XVI-INV-11G-00248) (b) The WLO may be lifted or cancelled under any of the following
grounds:
Name: ERWIN F. GENUINO
1. When the validity period of the WLO as provided for in the
Nationality: Filipino preceding section has already expired;

Last known 2. When the accused subject of the WLO has been allowed by
No. 5 J.P. Rizal Extension, COMEMBO, Makati City the court to leave the country during the pendency of the
address:
case, or has been acquitted of the charge; and
Ground for HDO Malversation, Violation of the Anti-Graft and Corrupt
Issuance: Practices Act, Plunder 3. When the preliminary investigation is terminated, or when
the petition for review, or motion for reconsideration has
Pending before the National Prosecution Service, been denied and/or dismissed.
Details of the Case: Department of Justice (NTS Docket No. XV-INV-11F-
00229 xxxx
That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that
Pending before the National Prosecution Service, under Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the
Department of Justice country from the court during the pendency of the case against him. Further, in 5 (b) (3), he may
not leave unless the preliminary investigation of the case in which he is involved has been
terminated.
In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or
WLO cannot leave the country unless he obtains an ADO. The said section reads as follows:
Section 7. Allow Departure Order (ADO) - Any person subject of HDO/WLO issued
pursuant to this Circular who intends, for some exceptional reasons, to leave the
country may, upon application under oath with the Secretary of Justice, be issued an ADO.
The ADO may be issued upon submission of the following requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and containing an
undertaking to immediately report to the DOJ upon return; and
(b) Authority to travel or travel clearance from the court or appropriate government office where the
case upon which the issued HDO/WLO was based is pending, or from the investigating prosecutor in
charge of the subject case.
By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country, the only
plausible conclusion that can be made is that its mere issuance operates as a restraint on the right
to travel. To make it even more difficult, the individual will need to cite an exceptional reason to
justify the granting of an ADO.
The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that
they are one and the same or, at the very least, complementary such that whatever is not covered
in Section 1,131 which pertains to the issuance of HDO, can conveniently fall under Section
2,132 which calls for the issuance of WLO. In any case, there is an identical provision in DOJ Circular
No. 41 which authorizes the Secretary of Justice to issue a HDO or WLO against anyone, motu
proprio, in the interest of national security, public safety or public health. With this all-encompassing
provision, there is nothing that can prevent the Secretary of Justice to prevent anyone from leaving
the country under the guise of national security, public safety or public health.
The exceptions to the right to travel are limited to those stated in Section 6, Article III of
the Constitution
The DOJ argues that Section 6, Article III of the Constitution is not an exclusive enumeration of the
instances wherein the right to travel may be validly impaired.133 It cites that this Court has its own
administrative issuances restricting travel of its employees and that even lower courts may issue
HDO even on grounds/outside of what is stated in the Constitution.134
The argument fails to persuade.
It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a
HDO against an accused in a criminal case so that he may be dealt with in accordance with law.135 It
does not require legislative conferment or constitutional recognition; it co-exists with the grant of
judicial power. In Defensor-Santiago vs. Vasquez,136 the Court declared, thus:
Courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such
powers as are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the court, as well as to the due administration of justice; or are
directly appropriate, convenient and suitable to the execution of their granted powers; and include
the power to maintain the court's jurisdiction and render it effective in behalf of the litigants.137
The inherent powers of the courts are essential in upholding its integrity and largely beneficial in
keeping the people's faith in the institution by ensuring that it has the power and the means to
enforce its jurisdiction.
As regards the power of the courts to regulate foreign travels, the Court, in Leave Division,
explained:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides
that the Supreme Court shall have administrative supervision over all courts and the
personnel thereof. This provision empowers the Court to oversee all matters relating to the
effective supervision and management of all courts and personnel under it. Recognizing this
mandate, Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986, considers
the Supreme Court exempt and with authority to promulgate its own rules and regulations on
foreign travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or she swears to faithfully
adhere to, and abide with, the law and the corresponding office rules and regulations. These rules
and regulations, to which one submits himself or herself, have been issued to guide the government
officers and employees in the efficient performance of their obligations. When one becomes a public
servant, he or she assumes certain duties with their concomitant responsibilities and gives up some
rights like the absolute right to travel so that public service would not be prejudiced.138
It is therefore by virtue of its administrative supervision over all courts and personnel that this Court
came out with OCA Circular No. 49-2003, which provided for the guidelines that must be observed
by employees of the judiciary seeking to travel abroad. Specifically, they are required to secure a
leave of absence for the purpose of foreign travel from this Court through the Chief Justice and the
Chairmen of the Divisions, or from the Office of the Court Administrator, as the case maybe. This is
"to ensure management of court dockets and to avoid disruption in the administration of justice."139
OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the
employee's leave for purpose of foreign travel which is necessary for the orderly administration
ofjustice. To "restrict" is to restrain or prohibit a person from doing something; to "regulate" is to
govern or direct according to rule.140 This regulation comes as a necessary consequence of the
individual's employment in the judiciary, as part and parcel of his contract in joining the institution.
For, if the members of the judiciary are at liberty to go on leave any time, the dispensation ofjustice
will be seriously hampered. Short of key personnel, the courts cannot properly function in the midst
of the intricacies in the administration of justice. At any rate, the concerned employee is not
prevented from pursuing his travel plans without complying with OCA Circular No. 49-2003 but he
must be ready to suffer the consequences of his non-compliance.
The same ratiocination can be said of the regulations of the Civil Service Commission with respect to
the requirement for leave application of employees in the government service seeking to travel
abroad. The Omnibus Rules Implementing Book V of E.O. No. 292 states the leave privileges and
availment guidelines for all government employees, except those who are covered by special laws.
The filing of application for leave is required for purposes of orderly personnel administration. In
pursuing foreign travel plans, a government employee must secure an approved leave of absence
from the head of his agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order (MO) No. 26
dated July 31, 1986, provided the procedure in the disposition of requests of government officials
and employees for authority to travel abroad. The provisions of this issuance were later clarified in
the Memorandum Circular No. 18 issued on October 27, 1992. Thereafter, on September 1, 2005,
E.O. No. 459 was issued, streamlining the procedure in the disposition of requests of government
officials and employees for authority to travel abroad. Section 2 thereof states:
Section 2. Subject to Section 5 hereof, all other government officials and employees seeking
authority to travel abroad shall henceforth seek approval from their respective heads of
agencies, regardless of the length of their travel and the number of delegates concerned. For the
purpose of this paragraph, heads of agencies refer to the Department Secretaries or their
equivalents. (Emphasis ours)
The regulation of the foreign travels of government employees was deemed necessary "to promote
efficiency and economy in the government service."141 The objective was clearly administrative
efficiency so that government employees will continue to render public services unless they are
given approval to take a leave of absence in which case they can freely exercise their right to travel.
It should never be interpreted as an exception to the right to travel since the government employee
during his approved leave of absence can travel wherever he wants, locally or abroad. This is no
different from the leave application requirements for employees in private companies.
The point is that the DOJ may not justify its imposition of restriction on the right to travel of the
subjects of DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have
inherent power to issue HDO, unlike the courts, or to restrict the right to travel in anyway. It is
limited to the powers expressly granted to it by law and may not extend the same on its own accord
or by any skewed interpretation of its authority.
The key is legislative enactment
The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but
the solution does not lie in taking constitutional shortcuts. Remember that the Constitution "is the
fundamental and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights are determined and all public authority
administered."142 Any law or issuance, therefore, must not contradict the language of the
fundamental law of the land; otherwise, it shall be struck down for being unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on
constitutionally-protected rights without the authority of a valid law. Even with the predicament of
preventing the proliferation of crimes and evasion of criminal responsibility, it may not overstep The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated November
constitutional boundaries and skirt the prescribed legal processes. 28, 2011, which required respondent Leila De Lima to show cause why she should not be cited in
contempt, as a separate petition.
That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong against
the state does not warrant the intrusion in the enjoyment of their basic rights. They are nonetheless SO ORDERED.
innocent individuals and suspicions on their guilt do not confer them lesser privileges to enjoy. As
emphatically pronounced in Secretary of National Defense vs. Manalo, et al.,143 the constitution is an Sereno, C. J., on indefinite leave.
overarching sky that covers all in its protection. It affords protection to citizens without distinction. Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perlas-Bernabe, Jardeleza, Martires, Tijam,
Even the most despicable person deserves the same respect in the enjoyment of his rights as the and Gesmundo, JJ., concur.
upright and abiding. Carpio, J., See Concurring Opinion.
Velasco, Jr., J., See Separate Concurring Opinion.
Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The resolution of the Leonen, J., See Separate Opinion.
issues in the instant petitions was partly aimed at encouraging the legislature to do its part and Caguioa, J., no part.
enact the necessary law so that the DOJ may be able to pursue its prosecutorial duties without
trampling on constitutionally-protected rights. Without a valid legislation, the DOJ's actions will
perpetually be met with legal hurdles to the detriment of the due administration of justice. The
challenge therefore is for the legislature to address this problem in the form of a legislation that will
identify permissible intrusions in the right to travel. Unless this is done, the government will NOTICE OF JUDGMENT
continuously be confronted with questions on the legality of their actions to the detriment of the
implementation of government processes and realization of its objectives. Sirs/Mesdames:

In the meantime, the DOJ may remedy its quandary by exercising more vigilance and efficiency in Please take notice that on April 17, 2018 a Decision/Resolution, copy attached herewith, was
the performance of its duties. This can be accomplished by expediency in the assessment of rendered by the Supreme Court in the above-entitled cases, the original of which was received by
complaints filed before its office and in the prompt filing of information in court should there be an this Office on May 9, 2018 at 2:50 p.m.
affirmative finding of probable cause so that it may legally request for the issuance of HDO and hold
the accused for trial. Clearly, the solution lies not in resorting to constitutional shortcuts but in an
efficient and effective performance of its prosecutorial duties. Very truly yours,
The Court understands the dilemma of the government on the effect of the declaration of
unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be utilized by (SGD)
suspected criminals, especially the affluent ones, to take the opportunity to immediately leave the
country. While this is a legitimate concern, it bears stressing that the government is not completely EDGAR O. ARICHETA
powerless or incapable of preventing their departure or having them answer charges that may be
subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out
that Republic Act No. (R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly   Clerk of Court
grants the Secretary of Foreign Affairs or any of the authorized consular officers the authority to
issue verify, restrict, cancel or refuse the issuance of a passport to a citizen under the circumstances
CONCURRING OPINION
mentioned in Section 4144 thereof. Mr. Justice Tijam, on the other hand, mentioned Memorandum
Circular No. 036, which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act
of 2003, as amended by R.A. No. 10364 or the Expanded Anti-Trafficking in Persons Acts of 2012,
which authorizes the BI to hold the departure of suspected traffickers or trafficked individuals. He
also noted that the Commissioner of BI has the authority to issue a HDO against a foreigner subject
of deportation proceedings in order to ensure his appearance therein. Similarly, the proposal of Mr. CARPIO, Acting C.J.:
Justice Velasco for the adoption of new set of rules which will allow the issuance of a precautionary
warrant of arrest offers a promising solution to this quandary. This, the Court can do in recognition
of the fact that laws and rules of procedure should evolve as the present circumstances require.
I concur.
Contempt charge against respondent De Lima
The constitutionality of the assailed administrative circular remains justiciable.
It is well to remember that on November 18, 2011, a Resolution145 was issued requiring De Lima to
show cause why she should not be disciplinarily dealt or be held in contempt for failure to comply
Preliminarily, the consolidated petitions continue to present a justiciable controversy. Neither the
with the TRO issued by this Court.
expiration of the watchlist orders issued by Leila M. De Lima (respondent) as former Secretary of
Justice nor the filing of Information for electoral sabotage against petitioner Gloria Macapagal-Arroyo
In view, however, of the complexity of the facts and corresponding full discussion that it rightfully
(GMA) rendered the cases moot.
deserves, the Court finds it more fitting to address the same in a separate proceeding. It is in the
interest of fairness that there be a complete and exhaustive discussion on the matter since it entails
A case becomes moot when it ceases to present a justiciable controversy such that its adjudication
the imposition of penalty that bears upon the fitness of the respondent as a member of the legal 1
profession. The Court, therefore, finds it proper to deliberate and resolve the charge of contempt would not yield any practical value or use.  Where the petition is one for certiorari seeking the
against De Lima in a separate proceeding that could accommodate a full opportunity for her to nullification of an administrative issuance for having been issued with grave abuse of discretion,
present her case and provide a better occasion for the Court to deliberate on her alleged obtaining the other reliefs prayed for in the course of the proceedings will not render the entire
disobedience to a lawful order. petition moot altogether. In COCOFED-Philippine Coconut Producers Federation, Inc. v. Commission
2
on Elections (COMELEC),  the Court thus explained:
WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby
declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby
declared NULL and VOID. A moot and academic case is one that ceases to present a justiciable controversy because of
supervening events so that a declaration thereon would be of no practical use or value.
In the present case, while the COMELEC counted and tallied the votes in favor of COCOFED showing
that it failed to obtain the required number of votes, participation in the 2013 elections was merely
one of the reliefs COCOFED prayed for. The validity of the COMELEC's resolution, cancelling
COCOFED's registration, remains a very live issue that is not dependent on the outcome of the
elections.3 (Citations omitted)
Similarly, where an accused assails via certiorari the judgment of conviction rendered by the trial
4 March 25, 1989. This law provides that, in the performance of their duties, all public officials and
court, his subsequent release on parole will not render the petition academic.  Precisely, if the
sentence imposed upon him is void for lack of jurisdiction, the accused should not have been
5 receipt thereof and to ensure the accessibility of all public documents for inspection by the public
paroled, but unconditionally released since his detention was illegal.  In the same vein, even when
the certification election sought to be enjoined went on as scheduled, a petition for certiorari does
not become moot considering that the petition raises jurisdictional errors that strike at the very
6 In Tondo Medical Center Employees Association v. Court of Appeals,  the Court made a
heart of the validity of the certification election itself.  Indeed, an allegation of a jurisdictional error
7
is a justiciable controversy that would prevent the mootness of a special civil action for certiorari.
Here, the consolidated petitions for certiorari and prohibition assail the constitutionality of
8 As a general rule, the provisions of the Constitution are considered self-executing, and do not
Department of Justice (DOJ) Circular No. 041-10,  on which respondent based her issuance of
watchlist and hold-departure orders against petitioners. Notably, DOJ Circular No. 041-10 was not
issued by respondent herself, but by Alberto C. Agra as then Acting Secretary of Justice during the
9 provisions have already been categorically declared by this Court as non self-executing.
Arroyo Administration. It became effective on 2 July 2010.  In fact, the assailed issuance remains
in effect. To be sure, whether the watchlist and hold-departure orders issued by respondent against
petitioners subsequently expired or were lifted is not determinative of the constitutionality of the
circular. Hence, the Court is duty-bound to pass upon the constitutionality of DOJ Circular No. 041-
10, being a justiciable issue rather than an exception to the doctrine of mootness.
DOJ Circular No. 041-10 is an invalid impairment of the right to travel, and therefore,
unconstitutional.
Proceeding now to the substantive issue, I agree that DOJ Circular No. 041-10 violates the
constitutional right to travel.
Section 6, Article III of the Constitution reads:
SEC. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may
be provided by law. (Emphasis supplied)
As above-quoted, the right to travel is not absolute. However, while it can be restricted, the only
permissible grounds for restriction are national security, public safety, and public health, which
grounds must at least be prescribed by an act of Congress. In only two .instances can the right to
travel be validly impaired even without a statutory authorization. The first is when a court forbids
10
the accused from leaving Philippine jurisdiction in connection with a pending criminal case.  The
second is when Congress, pursuant to its power of legislative inquiry, issues a subpoena or arrest
11
order against a person.
The necessity for a legislative enactment expressly providing for a valid impairment of the right to
travel finds basis in no less than the fundamental law of the land. Under Section 1, Article VI of the
Constitution, the legislative power is vested in Congress. Hence, only Congress, and no other entity
or office, may wield the power to make, amend, or repeal laws.
12
Accordingly, whenever confronted with provisions interspersed with phrases like "in accordance with
law" or "as may be provided by law," the Court turns to acts of Congress for a holistic constitutional
construction. To illustrate, in interpreting the clause "subject to such limitations as may be provided
13
by law" in relation to the right to information, the Court held in Gonzales v. Narvasa  that it is
Congress that will prescribe these reasonable conditions upon the access to information:
The right to information is enshrined in Section 7 of the Bill of Rights which provides that —
The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Under both the 1973 and 1987 Constitution, this is a self-executory provision which can be invoked
by any citizen before the courts. This was our ruling in Legaspi v. Civil Service Commission, wherein
the Court classified the right to information as a public right and "when a mandamus proceeding
involves the assertion of a public right, the requirement of personal interest is satisfied by the mere
fact that the petitioner is a citizen, and therefore, part of the general 'public' which possesses the
right." However, Congress may provide for reasonable conditions upon the access to
information. Such limitations were embodied in Republic Act No. 6713, otherwise known as the
"Code of Conduct and Ethical Standards for Public Officials and Employees," which took effect on
employees are obliged to respond to letters sent by the public within fifteen (15) working days from
within reasonable working hours, subject to the reasonable claims of confidentiality. 14 (Emphasis
supplied; Citations omitted)
15
jurisprudential survey on the interpretation of constitutional provisions that are not self-executory
and held that it is Congress that will breathe life into these provisions:
require future legislation for their enforcement. For if they are not treated as self-executing, the
mandate of the fundamental law can be easily nullified by the inaction of Congress. However, some
In Tañada v. Angara, the Court specifically set apart the sections found under Article II of the 1987
Constitution as non self-executing and ruled that such broad principles need legislative enactments
before they can be implemented:
By its very title, Article II of the Constitution is a "declaration of principles and state policies." x x x
These principles in Article II are not intended to be self-executing principles ready for
enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise
of its power of judicial review, and by the legislature in its enactment of laws.
In Basco v. Philippine Amusement and Gaining Corporation, this Court declared that Sections 11,
12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987
Constitution are not self-executing provisions. In Tolentino v. Secretary of Finance, the Court
referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral
incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay
down a general principle, are distinguished from other constitutional provisions as non self-
executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody
judicially enforceable constitutional rights.
Some of the constitutional provisions invoked in the present case were taken from Article II of the
Constitution — specifically, Sections 5, 9, 10, 11, 13, 15 and 18 — the provisions of which the Court
categorically ruled to be non self-executing in the aforecited case of Tañada v. Angara.16 (Emphasis
supplied; citations omitted)
17
In Ang Bagong Bayani-OFW Labor Party v. COMELEC,  the Court construed the constitutional
provisions on the party-list system and held that the phrases "in accordance with law" and "as may
be provided by law" authorized Congress "to sculpt in granite the lofty objective of the Constitution,"
to wit:
That political parties may participate in the party-list elections does not mean, however, that any
political party — or any organization or group for that matter — may do so. The requisite character
of these parties or organizations must be consistent with the purpose of the party-list system, as
laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as
follows:
"(1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of registered national, regional, and
sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be
filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous
cultural communities, women, youth, and such other sectors as may be provided by law, except the
religious sector."
x x x x
The foregoing provision on the party-list system is not self-executory. It is, in fact,
interspersed with phrases like "in accordance with law" or "as may be provided by law";
it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. x x
x.18 (Italicization in the original; boldfacing supplied)
Unable to cite any specific law on which DOJ Circular No. 041-10 is based, respondent invokes
Executive Order No. 292, otherwise known as the Revised Administrative Code of 1987. In
particular, respondent cites the DOJ's mandate to "investigate the commission of crimes" and
19
"provide immigration x x x regulatory services," as well as the DOJ Secretary's rule-making power.
I disagree.
20
In the landmark case of Ople v. Torres,  an administrative order was promulgated restricting the
right to privacy without a specific law authorizing the restriction. The Office of the President justified
its legality by invoking the Revised Administrative Code of 1987. The Court rejected the argument
and nullified the assailed issuance for being unconstitutional as the Revised Administrative Code of
1987 was too general a law to serve as basis for the curtailment of the right to privacy, thus:
Although the constitutional right to travel is not absolute, it can only be restricted in the interest of
national security, public safety, or public health, as may be provided by law. As held in Silverio v.
Court of Appeals:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of
travel may be impaired even without court order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion to impose limitations. They can
impose limits only on the basis of "national security, public safety, or public health" and "as may be
provided by law," a limitive phrase which did not appear in the 1973 text x x x. Apparently, the
phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed
under the previous regime when there was a Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested party x x x.
The constitutional right to travel cannot be impaired without due process of law. Here, due process
of law requires the existence of a law regulating travel abroad, in the interest of national security,
public safety or public health. There is no such law applicable to the travel abroad of respondent.
Neither the OCA nor the majority can point to the existence of such a law. In the absence of such a
law, the denial of respondent's right to travel abroad is a gross violation of a fundamental
constitutional right.

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative x x x x
order but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308
establishes a system of identification that is all-encompassing in scope, affects the life and liberty of Furthermore, respondent's travel abroad, during her approved leave, did not require approval from
every Filipino citizen and foreign resident, and more particularly, violates their right to privacy. anyone because respondent, like any other citizen, enjoys the constitutional right to travel within
the Philippines or abroad. Respondent's right to travel abroad, during her approved leave, cannot be
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of impaired "except in the interest of national security, public safety, or public health, as may be
Congress is understandable. The blurring of the demarcation line between the power of the provided by law." Not one of these grounds is present in this case.23 (Citations omitted)
Legislature to make laws and the power of the Executive to execute laws will disturb their delicate While the Revised Administrative Code of 1987 cannot lend credence to a valid impairment of the
balance of power and cannot be allowed. Hence, the exercise by one branch of government of power right to travel, Republic Act No. (RA) 8239, otherwise known as the Philippine Passport Act of 1996,
belonging to another will be given a stricter scrutiny by this Court. expressly allows the Secretary of Foreign Affairs or any of the authorized consular
officers to cancel the passport of a citizen. Section 4 of RA 8239 reads:
x x x x
SEC. 4. Authority to Issue, Deny, Restrict or Cancel. — Upon the application of any qualified Filipino
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not
citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports
appropriate to be covered by an administrative order. An administrative order is:
in accordance with this Act.
"Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspects of
governmental operation in pursuance of his duties as administrative head shall be promulgated in
Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify,
administrative orders."
restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the
An administrative order is an ordinance issued by the President which relates to specific aspects in
provisions of this Act.
the administrative operation of government. It must be in harmony with the law and should be for
the sole purpose of implementing the law and carrying out the legislative policy. We reject the
In the interest of national security, public safety and public health, the Secretary or any of the
argument that A.O. No. 308 implements the legislative policy of the Administrative Code
authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a
of 1987. The Code is a general law and "incorporates in a unified document the major
passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall
structural, functional and procedural principles of governance" and "embodies changes in
not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a
administrative structures and procedures designed to serve the people."  The Code is
passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided,
divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II
finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel
with the Distribution of Powers of the three branches of Government, Book III on the Office of the
Document to allow for a safe return journey by a Filipino to the Philippines.
President, Book IV on the Executive Branch, Book V on the Constitutional Commissions, Book VI on
The identical language between the grounds to cancel passports under the above-quoted provision
National Government Budgeting, and Book VII on Administrative Procedure. These Books contain
and the grounds to impair the right to travel under Section 6, Article III of the Constitution is not by
provisions on the organization, powers and general administration of the executive, legislative and
accident cognizant of the fact that passport cancellations necessarily entail an impairment of the
judicial branches of government, the organization and administration of departments, bureaus and
right. Congress intentionally copied the latter to obviate expanding the grounds for restricting the
offices under the executive branch, the organization and functions of the Constitutional Commissions
right to travel.
and other constitutional bodies, the rules on the national government budget, as well as guidelines
for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code
Can the DFA Secretary, under Section 4 of RA 8239, cancel the passports of persons under
covers both the internal administration of government, i.e., internal organization, personnel and
preliminary investigation? The answer depends on the nature of the crime for which the passport
recruitment, supervision and discipline, and the effects of the functions performed by administrative
holders are being investigated on. If the crime affects national security and public safety, the
officials on private individuals or parties outside government.21 (Citations omitted)
22
cancellation squarely falls within the ambit of Section 4. Thus, passport holders facing preliminary
Indeed, EO 292 is a law of general application.  Pushed to the hilt, the argument of respondent will investigation for the following crimes are subject to the DFA Secretary's power under Section 4:
grant carte blanche to the Executive in promulgating rules that curtail the enjoyment of
constitutional rights even without the sanction of Congress. To repeat, the Executive is limited to
executing the law. It cannot make, amend or repeal a law, much less a constitutional provision.
(1) Title One, (Crimes Against National Security and the Law of Nations),
For the same reason, in the Court's jurisprudence concerning the overseas travel of court personnel Title Three (Crimes Against Public Order), Title Eight (Crimes Against
during their approved leaves of absence and with no pending criminal case before any court, I have Persons), Title Nine (Crimes Against Liberty), Title Ten (Crimes Against
consistently maintained that only a law, not administrative rules, can authorize the Court to impose
Property) and Title Eleven (Crimes Against Chastity), Book II of the
administrative sanctions for the employee's failure to obtain a travel permit:
Revised Penal Code;
(2) Section 261 (Prohibited Acts), paragraphs (e),24 (f),25 (p),26 (q),27   See Arnault v. Nazareno, 87 Phil. 29, 45 (1950). See also my dissenting opinion in Leave Division,
11

(s),28 and (u)29 of the Omnibus Election Code;30 and Office of Administrative Services-OCA v. Heusdens, 678 Phil. 328, 355 (2011).

 See Belgica
12
v. Ochoa, 721 Phil. 416, 546 (2013).
(3) Other related election laws such as Section 27(b) of RA 7874, as
amended by RA 9369.31  392
13
Phil. 518 (2000).
Indeed, the phrases "national security" and "public safety," which recur in the text of the
32  Id.
14
at 529-530.
Constitution as grounds for the exercise of powers or curtailment of rights,  are intentionally broad
to allow interpretative flexibility, but circumscribed at the same time to prevent limitless application.  554
15
Phil. 609 (2007).
At their core, these concepts embrace acts undermining the State's existence or public security. At
their fringes, they cover acts disrupting individual or communal tranquility. Either way, violence or  Id.
16
at 625-626.
potential of violence features prominently.
 412
17
Phil. 308 (2001).
Thus understood, the "public safety" ground under Section 4 of RA 8239 unquestionably includes
violation of election-related offenses carrying the potential of disrupting the peace, such as electoral  Id.
18
at 331-332.
sabotage which involves massive tampering of votes (in excess of 10,000 votes). Not only does
electoral sabotage desecrate electoral processes, but it also arouses heated passion among the  Consolidated
19
Comment, p. 36.
citizenry, driving some to engage in mass actions and others to commit acts of violence. The
cancellation of passports of individuals investigated for this crime undoubtedly serves the interest of  354
20
Phil. 948 (1998).
public safety, much like individuals under investigation for robbery, kidnapping, and homicide,
33
among others.  Id.
21
at 966, 968-969.

As to whether respondent must be cited in contempt for allegedly defying the Temporary Restraining Office of the Solicitor General v. Court of Appeals, 735 Phil. 622, 630 (2014); Calingin v. Court of
22

Order issued by the Court, I agree that it cannot be resolved simultaneously with these consolidated Appeals, 478 Phil. 231, 236-237 (2004); Government Service Insurance System v. Civil Service
petitions. Until the contempt charge is threshed out in a separate and proper proceeding, I defer Commission, 307 Phil. 836, 846 (1994).
expressing my view on this issue.
 See my dissenting opinion in Leave Division, Office of Administrative Services-OCA v. Heusdens,
23

Accordingly, I vote to GRANT the petitions and to declare DOJ Circular No. 041-10, and the assailed supra note 11, at 354-356.
Watchlist Orders issued pursuant to the circular, UNCONSTITUTIONAL for being contrary to
Section 6, Article III of the Constitution. As regards the contempt charge against respondent,  "Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion."
24

I DEFER any opinion on this issue until it is raised in a separate and proper proceeding.
 "Coercion
25
of election officials and employees."

 "[Carrying
26
of] deadly weapons in prohibited areas."
Endnotes:
 "Carrying
27
of firearms outside residence or place of business."

 "Wearing
28
of uniforms and bearing arms."
1
Osmeña III v. Social Security System of the Philippines, 559 Phil. 723, 735 (2007), citing Governor  "Organization or maintenance of reaction forces, strike forces, or other similar forces."
29

Mandanas v. Honorable Romulo, 473 Phil. 806, 827-828 (2004); Olanolan v. COMELEC, 494 Phil.
749, 759 (2005); Paloma v. Court of Appeals, 461 Phil. 269, 276-277 (2003).  Batas
30
Pambansa Blg. 881, as amended.

 716
2
Phil. 19 (2013).  Defining
31
the offense of Electoral Sabotage.

 Id.
3
at 28-29. 32
E.g., (1) Art. III, Sec. 3(1) ["The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires otherwise, as
Castrodes
4
v. Cubelo, 173 Phil. 86 (1978). prescribed by law."]; 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
 Id.
5
at 91. to travel be impaired except in the interest of national security, public safety, or public health,
as may be provided by law."]; Sec. 15 ["The privilege of the writ of habeas corpus shall not be
Cooperative
6
Rural Bank of Davao City. Inc., v. Ferrer-Calleja, 248 Phil. 169 (1988). suspended except in cases of invasion or rebellion, when the public safety requires it."]); and (2)
Art. VII, Sec. 15 ["Two months immediately before the next presidential elections and up to the end
Regulus Development, Inc. v. Dela Cruz, G.R. No. 198172, 25 January 2016, 781 SCRA 607, 619.
7
of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public service
8
 Otherwise known as Consolidated Rules and Regulations Governing the Issuances and or endanger public safety."]: Sec. 18, par. 2 ["In case of invasion or rebellion, when the public
Implementing of Hold Departure Orders, Watchlist Orders and Allow Departure Orders. safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law. x x x. Upon the
9
 DOJ Circular No. 041-10 was published in The Philippine Star on 17 June 2010. Under Art. 2 of the initiative of the President, the Congress may, in the same manner, extend such proclamation or
Civil Code, as interpreted by the Court in Tañada v. Tuvera, 230 Phil. 528, 533-534 (1986), DOJ suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist
Circular No. 041-10 shall take effect after 15 days from the date of its publication. and public safety requires it."] (Emphasis supplied)

Dr. Cruz v. Judge Iturralde, 450 Phil. 77, 86 (2003); Hold-Departure Order issued by Judge
10
 It is not farfetched to link election laws with public safety. The European Court of Human Rights
33

Occiano, 431 Phil. 408, 411-412 (2002); Silverio v. Court of Appeals, 273 Phil. 128, 134-135 considers the forced abolition of a political party espousing violent and extreme views as permissible
(1991).
in the interest of public safety, even though this impairs the party members' right to association.
See Refah Partisi v. Turkey, 13 February 2003, Application Nos. 41340/98, 41342/98, 41343/98 and
41344/9837. (www.echr.coe.int/Documents/Reports_Recueil_2003-II.pdf, accessed on 18 January
2018)
SEPARATE CONCURRING OPINION
VELASCO,JR., J.:
I concur with the ponencia of my esteemed colleague, Justice Andres B. Reyes, Jr.
That the right to travel and to freedom of movement are guaranteed protection by no less than the
fundamental law of our land brooks no argument. While these rights are not absolute, the
delimitation thereof must rest on specific circumstances that would warrant the intrusion of the
State. As mandated by Section 6 of the Bill of Rights, any curtailment of the people's freedom of
movement must indispensably be grounded on an intrinsically valid law, and only whenever
necessary to protect national security, public safety, or public health, thus:
SEC. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law. (Emphasis and underscoring supplied)
The Department of Justice (DOJ) Circular No. 41 cannot be the law pertained to in the provision. As
pointed out in the ponencia, it is but an administrative issuance that requires an enabling law to be
1 attachments, the testimonies of the witnesses, and other evidence presented during the hearing,
valid.
Jurisprudence dictates that the validity of an administrative issuance is hinged on compliance with
the following requirements: 1) its promulgation is authorized by the legislature; 2) it is promulgated
in accordance with the prescribed procedure; 3) it is within the scope of the authority given by the
2 declaration of nullity of the HDOs and WLOs issued by the DOJ. The law enforcement agencies can
legislature; and 4) it is reasonable.  The DOJ, thus, exceeded its jurisdiction when it assumed to
wield the power to issue hold departure orders (HDOs) and watchlist orders (WLOs), and allow
department orders which unduly infringe on the people's right to travel absent
any specific legislation expressly vesting it with authority to do so.
I, therefore, concur that DOJ Circular No. 41 is without basis in law and is, accordingly,
unconstitutional.
With the declaration of nullity of DOJ Circular No. 41, our law enforcers are left in a quandary and
without prompt recourse for preventing persons strongly suspected of committing criminal activities
from evading the reach of our justice system by fleeing to other countries.
Justice Antonio T. Carpio, in his Separate Concurring Opinion, makes mention of Republic Act No.
8239, otherwise known as the Philippine Passport Act of 1996, which expressly allows the Secretary
of Foreign Affairs or any of the authorized consular officers to cancel the passport of a citizen, even
those of persons under preliminary investigations, for crimes affecting national security and public
safety. This course of action, while undoubtedly a legally viable solution to the DOJ's dilemma,
3
would nevertheless require the conduct of a hearing, pursuant to Section 4  of the law. This would
inevitably alert the said persons of interest of the cause and purpose of the cancellation of their
passports that could, in turn, facilitate, rather than avert, their disappearance to avoid the processes
of the court.
As an alternative solution, it is my humble submission that the above predicament can be effectively
addressed through the ex-parte issuance of precautionary warrants of arrest (PWAs) and/or
precautionary hold departure orders (PHDOs) prior to the filing of formal charges and information
against suspected criminal personalities.
The issuance of PWAs or PHDOs is moored on Section 2, Article III of the Bill of Rights of the
Constitution, to wit:
Section 2. x x x no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. (Emphasis supplied)
It bears noting that the warrant clause permits the issuance of warrants, whether it be a search
warrant or a warrant of arrest, even prior to the filing of a criminal complaint or information
in court. This interpretation finds support in the crafting of the provisions in our Rules of Criminal
4
Procedure that govern the issuance of search warrants. As stated in Sections 4 to 6  of Rule 126, a
search warrant may be issued by the courts if, after personally examining the
complainants/applicants and the witnesses produced, they are convinced that probable cause exists
for the issuance thereof. The rules do not require that 1) a criminal action or even a complaint must
have already been filed against an accused; and that 2) persons of interest are notified of such
application before law enforcement may avail of this remedy. The application for and issuance of a
search warrant are not conditioned on the existence of a criminal action or even a complaint before
an investigating prosecutor against any person.
Anchored on Section 2, Article III of the Constitution, a rule on precautionary warrant of arrest, akin
to a search warrant, may be crafted by the Court. The application will be done ex-parte, by a public
prosecutor upon the initiative of our law enforcement agencies, before an information is filed in
court, and only in certain serious crimes and offenses. Before filing the application, the public
prosecutor shall ensure that probable cause exists that the crime has been committed and that the
person sought to be arrested committed it. The law enforcement agencies may also opt to ask for a
PWA with PHDO or simply a PHDO.
The judge's determination of probable cause shall be done in accordance with the requirements in
Section 2, Article III of the Constitution. He shall set a hearing on the application to personally
examine under oath or affirmation, in form of searching questions and answers, the applicant and
the witnesses he may produce on facts personally known to them and attach to the record their
sworn statements. If satisfied of the existence of probable cause based on the application and its
the judge may issue the warrant and direct the Philippine National Police or the National Bureau of
Investigation to effect the arrest.
The suggested revision in the Rules, to my mind, will help solve the problem caused by the
apply for a PWA or PHDO to prevent suspects from fleeing the country and to detain and arrest them
at the airport. This may also solve the problem of extrajudicial killings as the law enforcement
agency is now provided with an adequate remedy for the arrest of the criminals.
I vote to GRANT the petition.
Endnotes:
 Page
1
22 of the Decision.
2
Hon. Executive Secretary, et. al. v. Southwing Heavy Industries, Inc., G.R. No. 164171, February
20, 2006, 482 SCRA 673, 686.
3
 SEC. 4. Authority to Issue, Deny, Restrict or Cancel. - Upon the application of any qualified Filipino
citizen, the Secretary of Foreign Affairs or any of his authorized consular officer may issue passports
in accordance with this Act.
Philippine consular officers in a foreign country shall be authorized by the Secretary to issue, verify,
restrict, cancel or refuse a passport in the area of jurisdiction of the Post in accordance with the
provisions of this Act.
In the interest of national security, public safety and public health, the Secretary or any of the
authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a
passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall
not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a
passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided,
finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel
Document to allow for a safe return journey by a Filipino to tlie Philippines. (Emphasis supplied)
4
 Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon
probable cause in connection with one specific offense to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the things to be seized which may be
anywhere in the Philippines.
Section 5. Examination of complainant; record. — The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts personally known to them and attach to the
record their sworn statements, together with the affidavits submitted. (4a)
Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts
upon which the application is based or that there is probable cause to believe that they exist, he
shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a)
SEPARATE OPINION
LEONEN, J.:
I concur that Department of Justice Circular No. 41, series of 2010, is unconstitutional. The
Department of Justice is neither authorized by law nor does it possess the inlierent power to issue
hold departure orders, watchlist orders, and allow departure orders against persons under
preliminary investigation.
However, I have reservations regarding the proposed doctrine that the right of persons to travel can
only be impaired by a legislative enactment as it can likewise be burdened by other constitutional
provisions.
The pertinent Constitutional provision on the right to travel is Article III, Section 6, which states:
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 safely, or public health, as may be provided by
law. (Emphasis supplied)
1
The right to travel, as a concept, was directly tackled in Marcos v. Manglapus,  an early case
decided under the 1987 Constitution. It dealt specifically with the right of former President Marcos
to return to the Philippines. In resolving the case, this Court distinguished between the right to
return to one's country and the general right to travel. The right to return to one's country was
2 WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the
treated separately and deemed excluded from the constitutionally protected right to travel.
In my view, the right to travel should not be given such a restrictive interpretation. In the broad
3
sense, the right to travel refers to the "right to move from one place to another."  The delimitation
set in Marcoseffectively excludes instances that may involve a curtailment on the right to travel
within the Philippines and the right to travel to the Philippines. This case presents us with an
opportunity to revisit Marcos and abandon its narrow and restrictive interpretation. In this regard,
the constitutional provision should be read to include travel within the Philippines and travel to and
from the Philippines. 
Undeniably, the right to travel is not absolute. Article III, Section 6 of the Constitution states that
any curtailment must be based on "national security, public safety, or public health, as may be
provided by law."
In interpreting this constitutional provision, the ponencia proposes that only a statute or a legislative
enactment may impair the right to travel.
Respectfully, I disagree. In my view, the phrase "as may be provided by law" should not be literally
interpreted to mean statutory law. Its usage should depend upon the context in which it is written.
As used in the Constitution, the word "law" does not only refer to statutes but embraces the
Constitution itself.
The Bill of Rights is replete with provisions that provide a similar phraseology. For instance, both the
due process clause and the equal protection clause under Article III, Section 1 of the Constitution
contain the word "law," thus:
Article III
BILL OF RIGHTS
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. (Emphasis supplied)
However, the application of the due process and the equal protection clauses has not been limited to
statutory law. These two (2) principles have been tested even against executive issuances.
4
In Ynot v. Intermediate Appellate Court,  the due process clause was deemed to have been violated
by an executive order which directed the outright confiscation of carabaos transported from one
province to another. In declaring the executive order unconstitutional, this Court held:
[T]he challenged measure is an invalid exercise of the police power because the method employed
to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is
unduly oppressive. Due process is violated because the owner of the property confiscated is denied
the right to be heard in his defense and is immediately condemned and punished. The conferment
on the administrative authorities of the power to adjudge the guilt of the supposed offender is a
clear encroachment on judicial functions and militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein
who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A unconstitutional.5
In the same manner, this Court in Corona v. United Harbor Pilots Association of the
6
Philippines invalidated an administrative order that restricted harbor pilots from exercising their
profession. The administrative order, which required harbor pilots to undergo an annual
performance evaluation as a condition for the continued exercise of their profession, was considered
7
a "deprivation of property without due process of law."
8
In Biraogo v. Truth Commission,  the creation of the Philippine Truth Commission by virtue of an
executive order was deemed unconstitutional for violating the equal protection clause. The
classification under the executive order, according to this Court, was unreasonable, thus:
Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find out the truth "concerning the
reported cases of graft and corruption during the previous administration" only. The intent to single
out the previous administration is plain, patent and manifest. Mention of it has been made in at
least three portions of the questioned executive order. Specifically, these are:
truth concerning the reported cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. — There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the people, committed by
public officers and employees, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration; and thereafter recommend the appropriate
action or measure to be taken thereon to ensure that the full measure of justice shall be served
without fear or favor.
SECTION 2. Powers and Functions. — The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations to the President, Congress
and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a
class, that is, a class of past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the equal protection clause cannot
sanction. Such discriminating differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.9 (Citations omitted)
In this regard, it is inaccurate to say that the right of persons to travel to and from the Philippines
can only be impaired by statutory law. It is also inaccurate to say that the impairment should only
be limited to national security, public safety, or public health considerations for it to be valid.
For instance, the assailed department order in Philippine Association of Service Exporters, Inc. v.
10
Drilon was not founded upon national security, public safety, or public health but on the state's
11
policy of affording protection to labor.  The department order was deemed a valid restriction on the
12
right to travel.
The term "law" in Article III, Section 6 can refer to the Constitution itself. This can be understood by
examining this Court's power to regulate foreign travel of court personnel and the nature and
functions of bail.
The power of this Court to regulate the foreign travel of court personnel does not emanate from
statutory law, nor is it based on national security, public safety, or public health considerations.
Rather, it is an inherent power flowing from Article III, Section 5(6) of the Constitution, which
13
grants this Court the power of administrative supervision over all courts and court personnel.
The nature and object of this Court's power to control the foreign travel of court personnel were
further explained in Leave Division, Office of Administrative Services — Office of the Court
14
Administrator v. Heusdens,  thus:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides
that the "Supreme Court shall have administrative supervision over all courts and the personnel
thereof." This provision empowers the Court to oversee all matters relating to the effective
supervision and management of all courts and personnel under it.Recognizing this mandate,
Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986, considers the
Supreme Court exempt and with authority to promulgate its own rules and regulations on foreign
travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or she swears to faithfully
adhere to, and abide with, the law and the corresponding office rules and regulations. These rules
and regulations, to which one submits himself or herself, have been issued to guide the government
officers and employees in the efficient performance of their obligations. When one becomes a public
servant, he or she assumes certain duties with their concomitant responsibilities and gives up some
rights like the absolute right to travel so that public service would not be prejudiced.
As earlier stated, with respect to members and employees of the Judiciary, the Court issued OCA
Circular No. 49-2003 to regulate their foreign travel in an unofficial capacity. Such regulation is
necessary for the orderly administration of justice. If judges and court personnel can go on leave
and travel abroad at will and without restrictions or regulations, there could be a disruption in the
administration of justice. A situation where the employees go on mass leave and travel together,
despite the fact that their invaluable services are urgently needed, could possibly arise. For said
reason, members and employees of the Judiciary cannot just invoke and demand their right to
travel.
To permit such unrestricted freedom can result in disorder, if not chaos, in the Judiciary and the
society as well. In a situation where there is a delay in the dispensation of justice, litigants can gel
disappointed and disheartened. If their expectations are frustrated, they may take the law into their
own hands which results in public disorder undermining public safety. In this limited sense, it can
even be considered that the restriction or regulation of a court personnel's right to travel is a
concern for public safety, one of the exceptions to the non-impairment of one's constitutional right
to travel.15 (Citations omitted, emphasis supplied)
A person's right to bail before conviction is both guaranteed and limited under the Constitution.
Article III, Section 13 states:
Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
Courts have the jurisdiction to determine whether a person should be admitted to bail. This
jurisdiction springs from the Constitution itself, which imposes limitations on the right to bail.
However, the discretion of courts is not restricted to the question of whether bail should be granted
to an accused as Courts have the inherent power "to prohibit a person admitted to bail from leaving
16
the Philippines." Regional Trial Courts, in particular, are empowered to issue hold departure orders
17
in criminal cases falling within their exclusive jurisdiction.  Persons admitted to bail are required to
18
seek permission before travelling abroad.
Similar to the power of this Court to control foreign travel of court personnel, the power to restrict
the travel of persons admitted to bail is neither based on a legislative enactment nor founded upon
national security, public safety, or public health considerations. The power of courts to restrict the
travel of persons on bail is deemed a necessary consequence of the conditions imposed in a bail
19 20
bond.  In Manotoc v. Court of Appeals  this Court explained:
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the
release of a person who is in the custody of the law, that he will appear before any court in which
his appearance may be required as stipulated in the bail bond or recognizance.
"Its object is to relieve the accused of imprisonment and the state of the burden of keeping him,
pending the trial, and at the same time, to put the accused as much under the power of the court as
if he were in custody of the proper officer, and to secure the appearance of the accused so as to
answer the call of the court and do what the law may require of him."
The condition imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held in People
v. Uy Tuising[:]
". . . the result of the obligation assumed by appellee (surety) to hold the accused amenable at all
times to the orders and processes of the lower court, was to prohibit said accused from leaving the
jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and
inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of
the Philippines they would have no binding force outside of said jurisdiction."
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be
placed beyond the reach of the courts.
"The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner
released thereunder, is to transfer the custody of the accused from the public officials who have him
in their charge to keepers of his own selection. Such custody has been regarded merely as a
continuation of the original imprisonment. The sureties become invested with full authority over the
person of the principal and have the right to prevent the principal from leaving the
state."21 (Citations omitted)
Although Manotoc was decided under the 1973 Constitution, the nature and functions of bail remain
22
essentially the same under the 1987 Constitution.  Hence, the principle laid down in Manotoc was
23
reiterated in Silverio v. Court of Appeals  where this Court further explained that:
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the
inherent power of the Courts to use all means necessary to carry their orders into effect in criminal
cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all
auxiliary writs, process and other means necessary to carry it into effect may be employed by such
Court or officer.
. . . .
. . . Holding an accused in a criminal case within the reach of the Courts by preventing his departure
from the Philippines must be considered as a valid restriction on his right to travel so that he may
be dealt with in accordance with law.24 (Citation omitted)
Moreover, the power of courts to restrict the travel of persons out on bail is an incident of its power
25
to grant or deny bail. As explained in Santiago v. Vasquez:

Courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such
powers as are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the
existence, dignity and functions of the courts, as well as to the due administration of justice; or are
directly appropriate, convenient and suitable to the execution of their granted powers; and include
the power to maintain the court's jurisdiction and render it effective in behalf of the litigants.

Therefore, while a court may be expressly granted the incidental powers necessary to effectuate its
jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary
and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional
provisions, every regularly constituted court has the power to do all things that are reasonably
necessary for the administration of justice within the scope of its jurisdiction. Hence, demands,
matters, or questions ancillary or incidental to, or growing out of, the main action, and coming
within the above principles, may be taken cognizance of by the court and determined, since such
jurisdiction is in aid of its authority over the principal matter, even though the court may thus be
called on to consider and decide matters which, as original causes of action, would not be within its
cognizance.

Furthermore, a court has the inherent power to make interlocutory orders necessary to protect its
jurisdiction. Such being the case, with more reason may a party litigant be subjected to proper
coercive measures where he disobeys a proper order, or commits a fraud on the court or the
opposing party, the result of which is that the jurisdiction of the court would be ineffectual. What
ought to be done depends upon the particular circumstances.

Turning now to the case at bar, petitioner does not deny and, as a matter of fact, even made a
public statement that she had every intention of leaving the country allegedly to pursue higher
studies abroad. We uphold the course of action adopted by the Sandiganbayan in taking judicial
notice of such fact of petitioner's plan to go abroad and in thereafter issuing sua sponte the hold
departure order, in justified consonance with our preceding disquisition. To reiterate, the hold
departure order is but an exercise of respondent court's inherent power to preserve and to maintain
the effectiveness of its jurisdiction over the case and the person of the accused.26
The Department of Justice is neither empowered by a specific law nor does it possess the inherent
power to restrict the right to travel of persons under criminal investigation through the issuance of
hold departure orders, watchlist orders, and allow departure orders. Its mandate under the
Administrative Code of 1987 to "[investigate the commission of crimes [and] prosecute
27
offenders"  cannot be interpreted so broadly as to include the power to curtail a person's right to
travel. Furthermore, Department Order No. 41, series of 2010 cannot be likened to the power of the
courts to restrict the travel of persons on bail as the latter presupposes that the accused was
arrested by virtue of a valid warrant and placed under the court's jurisdiction. For these reasons,
Department of Justice Circular No. 41, series of 2010, is unconstitutional.

Parenthetically, I agree that the right to travel is part and parcel of an individual's right to liberty,
28
which cannot be impaired without due process of law.

29
The ponencia mentions Rubi v. Provincial Board of Mindoro.  In my view, Rubi should always be
cited with caution. In Rubi, the Mangyans of Mindoro were forcibly removed from their habitat and
were compelled to settle in a reservation under pain of imprisonment for non-
30
compliance.  Although the concepts of civil liberty and due process were extensively discussed in
31
the case,  this Court nevertheless justified the government act on a perceived necessity to "begin
the process of civilization" of the Mangyans who were considered to have a "low degree of
32
intelligence" and as "a drag upon the progress of the State."