5 Marcos - v. - Manglapus20160210-9561-4ya8dc PDF

EN BANC
[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
YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA , petitioners, vs. HONORABLE RAUL MANGLAPUS,
CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as
Secretary of Foreign Affairs, Executive Secretary, Secretary of
Justice, Immigration Commissioner, Secretary of National Defense
and Chief of Staff, respectively , respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RETURN TO ONE'S COUNTRY, NOT

AMONG THE RIGHTS GUARANTEED. The right to return to one's country is not among
the rights speci cally guaranteed in the Bill of Rights, which treats only of the liberty of
abode and the right to travel.
2. ID.; ID.; RIGHT TO RETURN CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF
INTERNATIONAL LAW. It is the court's well-considered view that the right to return may
be considered, as a generally accepted principle of international law and under our
Constitution, is part of the law of the land [Art. II Sec. 2 of the Constitution.]
3. ID.; ID.; RIGHT TO RETURN, DISTINCT AND SEPARATE FROM THE RIGHT TO TRAVEL.
It is distinct and separate from the right to travel and enjoys a different protection under
the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily
deprived" thereof [Art. 12 (4).]
4. ID.; ALLOCATION OF POWER IN THE THREE BRANCHES OF GOVERNMENT A GRANT OF
ALL THE POWERS INHERENT THERETO. As the Supreme Court in Ocampo v. Cabangis
[15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant of all
legislative power; and a grant of the judicial power means a grant of all the judicial power
which may be exercised under the government." [At 631-632.] If this can be said of the
legislative power which is exercised by two chambers with a combined membership of
more than two hundred members and of the judicial power which is vested in a hierarchy
of courts, it can equally be said of the executive power which is vested in one of cial the
President.
5. ID.; PRESIDENT'S POWER UNDER THE 1987 CONSTITUTION; EXTENT AND LIMITATION.
Consideration of tradition and the development of presidential power under the different
constitutions are essential for a complete understanding of the extent of and limitations to
the President's powers under the 1987 Constitution. Although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it maintains intact
what is traditionally considered as within the scope of "executive power." Corollarily, the
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powers of the President cannot be said to be limited only to the speci c powers
enumerated in the Constitution. In other words, executive power is more than the sum of
specific powers so enumerated.
6. ID.; PRESIDENT'S RESIDUAL POWER TO PROTECT THE GENERAL WELFARE OF THE
PEOPLE; THE POWERS INVOLVED. The power involved is the President's residual power
to protect the general welfare of the people. It is founded on the duty of the President, as
steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the
President but also his duty to do anything not forbidden by the Constitution or the laws
that the needs of the nation demand. The President is not only clothed with extraordinary
powers in times of emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic tranquillity in times when
no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision.
7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; REQUEST TO BE ALLOWED TO RETURN
TO THE PHILIPPINES; TO BE TREATED AS ADDRESSED TO THE RESIDUAL UNSTATED
POWERS OF THE PRESIDENT. The request or demand of the Marcoses to be allowed to
return to the Philippines cannot be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations even remotely
similar to the present one. It must be treated as a matter that is appropriately addressed
to those residual unstated powers of the President which are implicit in and correlative to
the paramount duty residing in that of ce to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader discretion on
the part of the President to determine whether it must be granted or denied.
8. ID.; JUDICIAL REVIEW; POWER TO DETERMINE GRAVE ABUSE OF DISCRETION OR
EXCESS OF JURISDICTION ON ANY BRANCH OR INSTRUMENTALITY OF THE
GOVERNMENT. The present Constitution limits resort to the political question doctrine
and broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide. The
deliberations of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to
settle all actual controversies before them. When political questions are involved, the
Constitution limits the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the of cial whose
action is being questioned.
9. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL OF REQUEST TO BE ALLOWED
TO RETURN TO THE PHILIPPINES, NOT A GRAVE ABUSE OF DISCRETION. We nd that
from the pleadings led by the parties, from their oral arguments, and the facts revealed
during the brie ng in chambers by the Chief of Staff of the Armed Forces of the Philippines
and the National Security Adviser, wherein petitioners and respondents were represented,
there exist factual bases for the President's decision. The documented history of the
efforts of the Marcoses and their followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this time would
only exacerbate and intensify the violence directed against the State and instigate more
chaos. With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses a
serious threat to the national interest and welfare and in prohibiting their return.
GUTIERREZ, JR., J.: dissenting:
1. CONSTITUTIONAL LAW; CONSTITUTION; ITS PROVISIONS PROTECT ALL MEN, AT ALL
TIMES AND UNDER ALL CIRCUMSTANCES. "The Constitution . . . is a law for rulers and
people, equally in war and in peace, and covers with the shield of its protection all classes
of men, at all times, and under all circumstances. No doctrine involving more pernicious
consequences was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2;
18 L. Ed. 281 [1866]).
2. ID.; POLITICAL QUESTIONS; OUTSIDE THE SCOPE OF JUDICIAL DETERMINATION. It
is a well-settled doctrine that political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred on the
courts by express constitutional or statutory provisions.
3. ID.; ID.; CONSTRUED. It is not so easy, however, to de ne the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all
questions that lie outside the scope of the judicial power. More properly, however, it
means those questions which, under the constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government.
4. ID.; ID.; CONSTITUTIONAL POWER VESTED EXCLUSIVELY IN THE PRESIDENT OR
CONGRESS, BEYOND PROHIBITION OR EXAMINATION BY THE COURT REQUIRED FOR ITS
EXISTENCE. For a political question to exist, there must be in the Constitution a power
vested exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which claim is
not found in a speci c provision is dangerous. Neither should we validate a roving
commission allowing public of cials to strike where they please and to override everything
which to them represents evil. The entire Government is bound by the rule of law. The
authority implied in Section 6 of the Bill of Rights itself does not exist because no law has
been enacted specifying the circumstances when the right may be impaired in the interest
of national security or public safety. The power is in Congress, not the Executive.
5. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; RIGHT TO TRAVEL INCLUDES RIGHT
TO TRAVEL OUT OF OR BACK TO THE PHILIPPINES. Section 6 of the Bill of Rights
states categorically that the liberty of abode and of changing the same within the limits
prescribed by law may be impaired only upon a lawful order of a court. Not by an executive
of cer. Not even by the President. Section 6 further provides that the right to travel, and
this obviously includes the right to travel out of or back into the Philippines, cannot be
impaired except in the interest of national security, public safety, or public health, as may
be provided by law.
6. ID.; POLITICAL QUESTION DOCTRINE NO LONGER UTILIZED BY THE COURT; COURT
COMPELLED TO DECIDE THE CASE UNDER THE 1987 CONSTITUTION. The framers of
the Constitution believed that the free use of the political question doctrine allowed the
Court during the Marcos years to fall back on prudence, institutional dif culties,
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.
7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL A GRAVE ABUSE OF

DISCRETION. We do not have to look into the factual bases of the ban Marcos policy in
order to ascertain whether or not the respondents acted with grave abuse of discretion.
Nor are we forced to fall back upon judicial notice of the implications of a Marcos return to
his home to buttress a conclusion. In the rst 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 led that the alleged danger to national security
and public safety conveniently surfaced in the respondents' pleadings. Secondly, President
Aquino herself limits the reason for the ban Marcos policy to (1) national welfare and
interest and (2) the continuing need to preserve the gains achieved in terms of recovery
and stability. Neither ground satisfies the criteria of national security and public safety. The
"con uence 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 dif cult problem or any troublesome person can be substituted for the
Marcos threat as the catalysing factor. It was precisely the banning by Mr. Marcos of the
right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other
"undesirables" and "threats to national security" during that unfortunate period which led
the framers of our present Constitution not only to re-enact but to strengthen the
declaration of this right.
DECISION
CORTES , J : p
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
rati cation 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 signi cance, but the message they conveyed was the same a split in
the ranks of the military establishment that threatened civilian supremacy over the military
and brought to the fore the realization that civilian government could be at the mercy of a
fractious military.
But the armed threats to the Government were not only found in misguided elements in the
military establishment and among rabid followers of Mr. Marcos. There were also the
communist insurgency and the secessionist movement in Mindanao which gained ground
during the rule of Mr. Marcos, to the extent that the communists have set up a parallel
government of their own in the areas they effectively control while the separatists are
virtually free to move about in armed bands. There has been no let up in these groups'
determination to wrest power from the government. Not only through resort to arms but
also through the use of propaganda have they been successful in creating chaos and
destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed
of ce, 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 signi ed 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 rmly 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 of ce 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 and the immediate members of his family and to
enjoin the implementation of the President's decision to bar their return to the Philippines.
The Issue
The issue is basically one of power: whether or not, in the exercise of the powers granted
by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of
the following issues:
1. Does the President have the power to bar the return of former President Marcos
and his family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and
his family from returning to the Philippines, in the interest of "national security,
public safety or public health"
a. Has the President made a nding that the return of former
President Marcos and his family to the Philippines is a clear and present
danger to national security, public safety or public health?
b. Assuming that she has made that finding,
(1) Have the requirements of due process been

complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed
with, has the President's decision, including the grounds upon
which it was based, been made known to petitioners so that
they may controvert the same?
c. Is the President's determination that the return of former President
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of
former President Marcos and his family is a clear and present danger to
national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar
the return of former President Marcos and his family, acted and would be acting
without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion,
in performing any act which would effectively bar the return of former President
Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.]
The case for petitioners is founded on the assertion that the right of the Marcoses to
return to the Philippines is guaranteed under the following provisions of the Bill of Rights,
to wit:
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 xxx 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. llcd
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 rati ed by
the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except

those which are provided by law, are necessary to protect national security, public
order (order public), public health or morals or the rights and freedoms of others,
and are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case
involves a political question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of abode.
Petitioners invoke these constitutional rights in vacuo without reference to
attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reside here at this time in the face of the determination by the
President that such return and residence will endanger national security and
public safety.
It may be conceded that as formulated by petitioners, the question is not a
political question as it involves merely a determination of what the law provides
on the matter and application thereof to petitioners Ferdinand E. Marcos and
family. But when the question is whether the two rights claimed by petitioners
Ferdinand E. Marcos and family impinge on or collide with the more primordial
and transcendental right of the State to security and safety of its nationals, the
question becomes political and this Honorable Court can not consider it. cdrep
There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable
question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the
Philippines and reestablish their residence here even if their return and residence
here will endanger national security and public safety? This is still a justiciable
question which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E.
Marcos and family shall return to the Philippines and establish their residence
here? This is now a political question which this Honorable Court can not decide
for it falls within the exclusive authority and competence of the President of the
Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over
individual rights. In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people.
The Government may call upon the people to defend the State and, in the
ful llment 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 narrow con nes 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 af rmed 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 speci cally guaranteed in the
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our
well-considered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art.
II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel
and enjoys a different protection under the International Covenant of Civil and Political
Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig , which refer to the issuance of passports
for the purpose of effectively exercising the right to travel are not determinative of this
case and are only tangentially material insofar as they relate to a con ict 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. Cdpr
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 clari ed the substance of the legal issue, we nd now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall rst resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article VIII,
Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined that the return of the
Marcoses to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.] Thus, the 1987 Constitution explicitly provides
that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec.
1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec.
1], and "[t]he judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a
separation of powers by actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject only to limitations
provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil.
626 (1910)] pointed out "a grant of the legislative power means a grant of all legislative
power; and a grant of the judicial power means a grant of all the judicial power which may
be exercised under the government." [At 631-632.] If this can be said of the legislative
power which is exercised by two chambers with a combined membership of more than
two hundred members and of the judicial power which is vested in a hierarchy of courts, it
can 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 de ne 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 of ces, 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]. LLphil
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 speci c 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 speci cally
enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to her. Inclusio unius est exclusio
alterius." [Memorandum for Petitioners, p. 4; Rollo p. 233.] This argument brings to mind
the institution of the U. S. Presidency after which ours is legally patterned. **
Corwin, in his monumental volume on the President of the United States grappled with the
same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think
that a constitution ought to settle everything beforehand it should be a nightmare;
by the same token, to those who think that constitution makers ought to leave
considerable leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article II in its opening words: "The executive
power shall be vested in a President of the United States of America." . . . [ The
President: Office and Powers, 1787-1957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons
who held the of ce 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
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 of ce, 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 con dence 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 gurehead, 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. LexLib
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 of ce 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 speci c powers enumerated in the
Constitution. In other words, executive power is more than the sum of speci c powers so
enumerated.
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between
the Governor-General of the Philippines and the Legislature may vote the shares of stock
held by the Government to elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to
do so, said:
. . . Here the members of the legislature who constitute a majority of the "board"
and "committee" respectively, are not charged with the performance of any
legislative functions or with the doing of anything which is in aid of performance
of any such functions by the legislature. Putting aside for the moment the
question whether the duties devolved upon these members are vested by the
Organic Act in the Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact that they do not
fall within the authority of either of these two constitutes logical ground for
concluding that they do fall within that of the remaining one among which the
powers of government are divided . . . [At 202-203; emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of
dissent we nd 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 speci cally mentioned in the
Constitution:
The great ordinances of the Constitution do not establish and divide elds of
black and white. Even the more speci c of them are found to terminate in a
penumbra shading gradually from one extreme to the other. . . .
xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative
and executive action with mathematical precision and divide the branches into
watertight compartments, were it ever so desirable to do so, which I am far from
believing that it is, or that the Constitution requires.[At 210-211.]
The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of 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. prcd
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 of cers 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 dif cult 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
in exible. 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].
To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the people. It is founded on
the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it
is not only the power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand [ See Corwin, supra, at 153]. It
is a power borne by the President's duty to preserve and defend the Constitution. It also
may be viewed as a power implicit in the President's duty to take care that the laws are
faithfully executed [ see Hyman, The American President, where the author advances the
view that an allowance of discretionary power is unavoidable in any government and is
best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector of
the peace. [Rossiter, The American Presidency]. The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquillity in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in ful lling presidential duties in times of peace is not
in any way diminished by the relative want of an emergency speci ed in the commander-in-
chief provision. For in making the President commander-in-chief the enumeration of
powers that follow cannot be said to exclude the President's exercising as Commander-in-
Chief powers short of the calling of the armed forces, or suspending the privilege of the
writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain
public order and security.
That the President has the power under the Constitution to bar the Marcoses from
returning has been recognized by members of the Legislature, and is manifested by the
Resolution proposed in the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the Philippines "as a genuine
unsel sh 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 of ce 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. llcd
The Extent of Review

Under the Constitution, judicial power includes the duty to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government." [Art. VIII, Sec. 1.] Given this
wording, we cannot agree with the Solicitor General that the issue constitutes a political
question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide. But nonetheless there remain
issues beyond the Court's jurisdiction the determination of which is exclusively for the
President, for Congress or for the people themselves through a plebiscite or referendum.
We cannot, for example, question the President's recognition of a foreign government, no
matter how premature or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the bene ciary 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 of cial whose action is being questioned. If grave abuse is not established,
the Court will not substitute its judgment for that of the of cial 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,
de ning "judicial power," which speci cally 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 speci ed conditions. Pursuant to
the principle of separation of powers underlying our system of government, the
Executive is supreme within his own sphere. However, the separation of powers,
under the Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is supreme, as
regards the suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which, in this respect, is,
in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check
not to supplant the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act .. [At 479-480.].
Accordingly, the question for the Court to determine is whether or not there exist factual
bases for the President to conclude that it was in the national interest to bar the return of
the Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has
acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar
their return.
We nd that from the pleadings led by the parties, from their oral arguments, and the
facts revealed during the brie ng in chambers by the Chief of Staff of the Armed Forces of
the Philippines and the National Security Adviser, wherein petitioners and respondents
were represented, there exist factual bases for the President's decision.
The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a well-organized communist insurgency, a separatist movement in
Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity
of military men, police of cers and civilian of cials, to mention only a few. The
documented history of the efforts of the Marcoses and their followers to destabilize the
country, as earlier narrated in this ponencia bolsters the conclusion that the return of the
Marcoses at this time would only exacerbate and intensify the violence directed against
the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return of the Marcoses that may prove
to be the proverbial final straw that would break the camel's back.
With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses a
serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to step in
and exercise the commander-in-chief powers granted her by the Constitution to suppress
or stamp out such violence. The State, acting through the Government, is not precluded
from taking pre-emptive action against threats to its existence if, though still nascent, they
are perceived as apt to become serious and direct. Protection of the people is the essence
of the duty of government. The preservation of the State the fruition of the people's
sovereignty is an obligation in the highest order. The President, sworn to preserve and
defend the Constitution and to see the faithful execution the laws, cannot shirk from that
responsibility. LLjur
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 sti es and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting precarious state of our
economy is of common knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years and lead to total
economic collapse. Given what is within our individual and common knowledge of the
state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances
poses a serious threat to national interest and welfare and in prohibiting their return to the
Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.
Narvasa, Melencio-Herrera, Gancayco, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.
Separate Opinions
FERNAN , C.J., concurring:
"The threats to national security and public order are real - the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient in a
steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence
to the exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not xed but uctuate. They are not derived
solely from a particular constitutional clause or article or from an express statutory grant.
Their limits are likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law. History and time-honored
principles of constitutional law have conceded to the Executive Branch certain powers in
times of crisis or grave and imperative national emergency. Many terms are applied to
these powers: "residual," "inherent," "moral," "implied," "aggregate," "emergency." Whatever
they may be called, the fact is that these powers exist, as they must if the governance
function of the Executive Branch is to be carried out effectively and ef ciently. 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 ve (5) months after
the People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist
soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged
at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of
the Philippines. The public disorder and peril to life and limb of the citizens engendered by
this event subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila
and Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio
station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group
struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and
his deputy hostage. Troops on board several vehicles attempted to enter Gate 1 of Camp
Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who
forced their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade
but having failed to convince their incarcerated members to unite in their cause, had to give
up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the
military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most
serious attempt to wrest control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered
rearms 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. cdrep
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 rst blush appears to be extra legal, constitutes a
valid justi cation for disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented "people's power"
revolution. Millions of our people braved military tanks and repower, 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 sacri ced 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
nd to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR. , J., dissenting:

"The Constitution . . . is a law for rulers and people, equally in war and in peace,
and covers with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever invented
by the wit of man than that any of its provisions can be suspended during any of the
great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866]).
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan
as self-evident truth. But faced with a hard and delicate case, we now hesitate to give
substance to their meaning. The Court has permitted a basic freedom enshrined in the Bill
of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the rest
who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting him
into a class by himself. The Constitution is a law for all classes of men at all times. To have
a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of
rights and not of power. Mr. Marcos is insensate and would not live if separated from the
machines which have taken over the functions of his kidneys and other organs. To treat
him at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his right to come home and die among
familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
"Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law." (Emphasis
supplied, Section 6, Art. III, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more
serious of which were totally unrelated to Mr. Marcos and which the military was able to
readily quell, the respondents have not pointed to any grave exigency which permits the
use of untrammeled Governmental power in this case and the inde nite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond
our jurisdiction to consider. They contend that the decision to ban former President
Marcos, and his family on grounds of national security and public safety is vested by the
Constitution in the President alone. The determination should not be questioned before
this Court. The President's nding of danger to the nation should be conclusive on the
Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
"It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with such
questions has been conferred on the courts by express constitutional or
statutory provisions. It is not so easy, however, to de ne 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 de ned a political question in Taada v. Cuenco (103 Phil. 1051, 1066 [1957[), as
follows: LexLib
"'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 de nition 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
identi es it as essentially a function of the separation of powers. Prominent on
the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination
of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or potentiality of embarrassment
from multifarious pronouncements by various departments on one question."
For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which claim is
not found in a speci c provision is dangerous. Neither should we validate a roving
commission allowing public of cials to strike where they please and to override everything
which to them represents evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or
vests the determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law
has been enacted specifying the circumstances when the right may be impaired in the
interest of national security or public safety. The power is in Congress, not the Executive.
The closest resort to a textually demonstrable constitutional commitment of power may
be found in the commander-in-chief clause which allows the President to call out the
armed forces in case of lawless violence, invasion or rebellion and to suspend the privilege
of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion,
when the public safety requires it.
There is, however, no showing, not even a claim that the followers of former President
Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it
claimed that there is a need to suspend the privilege of the writ of habeas corpus or
proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there
may be disturbances but not of a magnitude as would compel this Court to resort to a
doctrine of non-justiceability and to ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hardpressed to state who or what constitutes a Marcos
"loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr.
Marcos and his cronies and that the "loyalists" engaging in rallies and demonstrations have
to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they
could not possibly destabilize the government, much less mount a serious attempt to
overthrow it. LibLex
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 of cer. Not even by the President. Section 6 further provides
that the right to travel, and this obviously includes the right to travel out of or back into the
Philippines, cannot be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country
to another or from the Philippines to a foreign country or from a foreign country to the
Philippines. The laws cited by the Solicitor General immigration, health, quarantine,
passports, motor vehicle, destierro, probation, and parole are all inapplicable insofar as
the return of Mr. Marcos and family is concerned. There is absolutely no showing how any
of these statutes and regulations could serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation and defense of which all of
us in Government, the President and Congress included, are sworn to participate.
Signi cantly, 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 rati cation of a new constitution, the arrest and detention of "enemies of
the State" without charges being led 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 of ces, radio and television stations and other forms of
media, the proposals to amend the Constitution, etc. was invariably met by an invocation
that the petition involved a political question. It is indeed poetic justice that the political
question doctrine so often invoked by then President Marcos to justify his acts is now
being used against him and his family. Unfortunately, the Court should not and is not
allowed to indulge in such a persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad de nition 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
dif culties, 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 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 classi ed 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 nds 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 brie ng with a lawyer for the petitioners and a
lawyer for the respondents present. prLL
The results of the brie ng 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 classi ed information supplied by the military. Accordingly, an
incongruous situation obtained. For this Court, relied on the very branch of the
government whose act was in question to obtain the facts. And as should be
expected the Executive Branch supplied information to support its position and
this Court was in no situation to disprove them. It was a case of the defendant
judging the suit. After all is said and done, the attempt by this Court to determine
whether or not the President acted arbitrarily in suspending the writ was a useless
and futile exercise.
"There is still another reason why this Court should maintain a detached attitude
and refrain from giving the seal of approval to the act of the Executive Branch.
For it is possible that the suspension of the writ lacks popular support because of
one reason or another. But when this Court declares that the suspension is not
arbitrary (because it cannot do otherwise upon the facts given to it by the
Executive Branch) it in effect participates in the decision-making process. It
assumes a task which it is not equipped to handle; it lends its prestige and
credibility to an unpopular act."
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.
Signi cantly, 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 rst 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 led that
the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to (1) national welfare and interest and (2) the continuing need to
preserve the gains achieved in terms of recovery and stability. (See page 7, respondents'
Comment at page 73 of Rollo). Neither ground satis es 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 rm 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. LLpr
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 ee 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 de nitely
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 dissatis ed 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 "con uence 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 dif cult problem or any troublesome person can be substituted for the
Marcos threat as the catalysing factor. The alleged con uence 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 de ning
the parameters of the right to travel and to freely choose one's abode has constrained the
President to ll 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
speci cally de ned 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.
cdll

Mr. Marcos may be too ill to withstand the rigors of a transpaci c ight. The agony of
traveling while hooked up to machines which have taken over the functions of his heart,
lungs, and kidneys may hasten his death. The physical condition of Mr. Marcos does not
justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is.
But he invokes a constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so
would run counter to a constitutional guarantee. Besides, the petitioners are not asking for
passports and nothing else. Any travel documents or any formal lifting of the Marcos ban
as would allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to
travel. I do not think we should differentiate the right to return home from the right to go
abroad or to move around in the Philippines. If at all, the right to come home must be more
preferred than any other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of
other "undesirables" and "threats to national security" during that unfortunate period which
led the framers of our present Constitution not only to re-enact but to strengthen the
declaration of this right. Media often asks, "what else is new?" I submit that we now have a
freedom loving and humane regime. I regret that the Court's decision in this case sets
back the gains that our country has achieved in terms of human rights, especially human
rights for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of
former dictators who were barred by their successors from returning to their respective
countries. There is no showing that the countries involved have constitutions which
guarantee the liberty of abode and the freedom to travel and that despite such
constitutional protections, the courts have validated the "ban a return" policy. Neither is it
shown that the successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no
matter how odious or disgusting is, however, insuf cient ground to ignore a constitutional
guarantee.
During the protracted deliberations on this case, the question was asked Is the
Government helpless to defend itself against a threat to national security? Does the
President have to suspend the privilege of the writ of habeas corpus or proclaim martial
law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under existing law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not
one of those powers because the Bill of Rights says so. There is no law prescribing exile in
a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
Bidin, J., dissents.
CRUZ, J., dissenting:

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 outed 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. LLpr
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 justi cation for opposing the herein petition,
i.e., that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the
classi ed 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 brie ng, 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
speci c powers granted by the Constitution, the Court is taking a great leap backward and
reinstating the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not
square with the announced policy of the Constitutional Commission, which was precisely
to limit rather than expand presidential powers, as a reaction to the excesses of the past
dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579)
that if it was true that the President had been granted the totality of executive power, "it is
dif cult to see why our forefathers bothered to add several speci c items, including some
tri ing 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 of ce of the
generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering
that Marcos is perhaps the most detested man in the entire history of our country. But we
are not concerned here with popularity and personalities. As a judge, I am not swayed by
what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I
must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars that
have not healed. And not even of fear, for fear is a phantom. That phantom did not rise
when the people stood fast at EDSA against the threat of total massacre in defense at
last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a
professor of Constitutional Law. These principles have not changed simply because I am
now on the Court or a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against
the prohibitions of the government then, Marcos is entitled to the same right to travel and
the liberty of abode that his adversary invoked. These rights are guaranteed by the
Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we

ready to be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he
have the right to return to his own country?; and should national safety and security deny
him this right?
There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has
the right to return to his own country except only if prevented by the demands of national
safety and national security. cdrep
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 con nement and should be buried within ten (10) days from
date.
If we do this, our country shall have maintained its regard for fundamental human
rights, for national discipline, and for human compassion.
PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the
con ict between the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines,
and the right of the Philippine Government to bar such return in the interest of national
security and public safety. In this context, the issue is clearly justiciable involving, as it
does, colliding assertions of individual right and governmental power. Issues of this
nature more than explain why the 1986 Constitutional Commission, led by the illustrious
former Chief Justice Roberto Concepcion, incorporated in the 1987 Constitution, the
new provision on the power of Judicial Review, viz:
"Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." Article VIII, Section 1, par. 2; (emphasis supplied)
Mr. Marcos invokes in his favor the speci c and precise constitutional right of every
Filipino to travel which, in the language of the Constitution, shall not be impaired "except in
the interest of national security, public safety, or public health, as may be provided by law"
(Art. III, Sec. 6). That the right to travel comprises the right to travel within the country, to
travel out of the country and to return to the country (Philippines), is hardly disputable.
Short of all such components, the right to travel is meaningless. The real question arises in
the interpretation of the qualifications attached by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the
interest of national security, public safety or public health can justify and even require
restrictions on the right to travel, and that the clause "as may be provided by law"
contained in Article III, Section 6 of the 1987 Constitution merely declares a constitutional
leave or permission for Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not, therefore, accept the
petitioners' submission that, in the absence of enabling legislation, the Philippine
Government is powerless to restrict travel even when such restriction is demanded by
national security, public safety or public health. The power of the State, in particular cases,
to restrict travel of its citizens nds 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. cdll
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a speci c
constitutional right, i. e., the right to return to the country. 1 Have the respondents
presented suf cient evidence to offset or override the exercise of this right invoked by Mr.
Marcos? Stated differently, have the respondents shown to the Court suf cient 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 "brie ng" 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, speci c,
clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used
as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the
land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip
service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides that
everyone has the right to leave any country, including his own, and to return to his country.
This guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil and
Political Rights which states that "no one shall be arbitrarily deprived of the right to enter
his own country." (emphasis supplied) "Arbitrary" or "arbitrarily" was speci cally chosen by
the drafters of the Covenant 3 hoping to protect an individual against unexpected,
irresponsible or excessive encroachment on his rights by the state based on national
traditions or a particular sense of justice which falls short of international law or
standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is the duty
of this Court to unquestioningly yield thereto, thus casting the controversy to the realm of
a political question. I do not agree. I believe that this is one case where the human and
constitutional right invoked by one party is so speci c, substantial and clear that it cannot
be overshadowed, much less, nulli ed by simplistic generalities; worse, the Court neglects
its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the
Philippines in 1983 and, at the same time, credibly deny the right of Mr. Marcos, also a
Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to
that question. Instead, it has become clearer by the day that the drama today is the same
drama in 1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political
or otherwise, the following are the cogent and decisive propositions in this case
1. Mr. Marcos is a Filipino and, as such, entitled to return to, 5 die and be buried in this
country;
2. respondents have not shown any "hard evidence" or convincing proof why his right as a
Filipino to return should be denied him. All we have are general conclusions of "national
security" and "public safety" in avoidance of a speci c demandable and enforceable
constitutional and basic human right to return
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today,
requires, of all members of the Court, in what appears to be an extended political contest,
the "cold neutrality of an impartial judge." It is only thus that we fortify the independence of
this Court, with delity, not to any person, party or group but to the Constitution and only to
the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses from
returning to the Philippines." 1 I therefore take exception to allusions 2 anent "the capacity
of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my
brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble" is
concerned), have overstepped the bounds of judicial restraint, or even worse, convicted
them without trial. LexLib
I also nd quite strained what the majority would have as the "real issues" facing the Court:
"The right to return to one's country," pitted against "the right of travel and freedom of
abode", and their supposed distinctions under international law, as if such distinctions,
under international law, in truth and in fact exist. There is only one right involved here,
whether under municipal or international law: the right of travel, whether within one's own
country, or to another, and the right to return thereto. The Constitution itself makes no
distinctions; let, then, no one make a distinction. Ubi lex non distinguit, nec nos distinguere
debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have
the power to deny a citizen his right to travel (back to the country or to another)? It is a
question that, in essence, involves the application, and no more, of the provisions of the
1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of the court. Neither shall
the right to travel be impaired except in the interest of national security, public
safety, or public health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of speci c 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
speci c 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 of cers 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
And finally:
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also
his duty to do anything not forbiden by the Constitution or the laws that the needs
of the nation demanded [See Corwin, supra, at 153]. It is a power borne by the
President's duty to preserve and defend the Constitution. It also may be viewed as
a power implicit in the President's duty to take care that the laws are faithfully
executed [See Hyman, The American President, where the author advances the
view that an allowance of discretionary power is unavoidable in any government
and is best lodged in the President]. 7
I am not persuaded.
I.
First: While the Chief Executive exercises powers not found expressly in the Charter, but
has them by constitutional implication, * the latter must yield to the paramountcy of the Bill
of Rights. According to Fernando: "A regime of constitutionalism is thus unthinkable
without an assurance of the primacy of a bill of rights. Precisely a constitution exists to
assure that in the discharge of the governmental functions, the dignity that is the birthright
of every human being is duly safeguarded. To be true to its primordial aim, a constitution
must lay down the boundaries beyond which lies forbidden territory for state action." 8
My brethren have not demonstrated, to my satisfaction, how the President may override
the direct mandate of the fundamental law. It will not suf ce, 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 eld of public law, "this argument . . . rests . . . not upon
the text of the [Constitution] .. but upon a mere inference therefrom." 9 For if it were,
indeed, the intent of the Charter to create an exception, that is, by Presidential action, to the
right of travel or liberty of abode and of changing the same other than what it explicitly
says already ("limits prescribed by law" 1 0 or "upon lawful order of the court" 1 1 ) the
Charter could have speci cally 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. LLjur
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. 1 2
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." 1 3 Arguably,
the provision enabled the Chief Executive (Marcos) to moderate movement of citizens,
which, Bernas says, justi ed such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 1 4
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." 1 5 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security
1 6 and foreign affairs; 1 7 the Bill of Rights precisely, a form of check against excesses of
of cialdom is, in this case, a formidable barrier against Presidential action. (Even on
matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief)
Second: Assuming, ex hypothesi, that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to
the "national security, public safety, or public health?" What appears in the records are
vehement insistences that Marcos does pose a threat to the national good and yet, at
the same time, we have persistent claims, made by the military top brass during the
lengthy closed-door hearing on July 25, 1989, that "this Government will not fall" should the
former first family in exile step on Philippine soil. Which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive. The Court itself must be content that the threat is not only clear, but more so,
present. 1 8
That the President "has the obligation under the Constitution to protect the people . . . :" 1 9
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 ies in the
face of claims, so con dently asserted, that "this Government will not fall" even if we
allowed Marcos to return.
It ies, nally, 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- rst couple are, in fact, in the
Government, in the comfort of its of ces, 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. 2 0 As I indicated, not one shred of evidence, let alone solid evidence, other than
surmises of possibilities, has been shown to justify the "balancing act" referred to. Worse,
these conjectures contradict contentions that as far as Philippine society is concerned,
Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace." 2 1
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," 2 2 is a bigger fantasy: It not only summons the martial
law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6),
it is inconsistent with the express provisions of the commander-in chief clause of the 1987
Charter, a -Charter that has perceptibly reduced the Executive's power; vis-a-vis its 1973
counterpart. 2 3
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 con ned for chronic
asthma. The deplorable conditions of his imprisonment exacerbated his delicate health
beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless
apparatchiki. On August 14, 1979, he was, along with former President Diosdado
Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia, charged,
"ASSOed," and placed under house arrest, for "inciting to sedition" and "rumor mongering,"
2 4 in the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the
Philippines), a book extremely critical of martial rule, published by him and former
Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more
than two dozens of criminal complaints led by the several military of cers named in the
"condemned" book as having violated the human rights of dissenters, and for other crimes,
in the of ce of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them
free from house arrest and these political offenses. I am for Marcos' return not because I
have a score to settle with him. Ditto's death or my arrest are scores that can not be
settled.
I feel the ex-President's death abroad (presented in the dailies as "imminent") would leave
him "unpunished" for his crimes to country and countrymen. If punishment is due, let this
leadership inflict it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of abode. 2 5 We would have betrayed our own ideals if we
denied Marcos his rights. It is his constitutional right, a right that can not be abridged by
personal hatred, fear, founded or unfounded, and by speculations of the man's "capacity"
"to stir trouble". Now that the shoe is on the other foot, let no more of human rights
violations be repeated against any one, friend or foe. In a democratic framework, there is
no such thing as getting even. Cdpr
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.
Footnotes
** The Philippine presidency under the 1935 Constitution was patterned in large measure after
the American presidency. But at the outset, it must be pointed out that the Philippine
government established under the constitutions of 1935, 1973 and 1987 is a unitary
government with general powers unlike that of the United States which is a federal
government with limited and enumerated powers. Even so, the powers of the president of
the United States have through the years grown, developed and taken shape as students
of that presidency have demonstrated.
FERNAN, C.J., concurring:
1. From the speech "Restrictions on Human Rights - States of Emergency, National Security,
Public Safety and Public Order" delivered at the Lawasia Seminar on Human Rights,
Today and Tomorrow: The Role of Human Rights Commissions and Other Organs, at the
Manila Hotel on August 27, 1988.
PADILLA, J.: dissenting:
1. In addition, he invokes the right as a basic human right recognized by the Universal
Declaration of Human Rights.
2. S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations:
Underdevelopment, Catastrophies and Armed Con cts, 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.
5. As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States,
is beyond the issues in this case; similarly, as to how the Philippine government should
deal with Mr. Marcos upon his return is also outside of the issues in this case.
SARMIENTO, J.: dissenting:
1. Decision, 4.
2. See supra, 1-4.
3. Supra, 2.
4. CONST., art. III, sec. 6.
5. Decision, supra, 18; emphasis in the original.

6. Supra, 20-21.
7. Supra, 21-22.
*. But see Cruz, J., Dissenting.
8. FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.)

9. Republic v. Quasha, No. L-30299, August 17, 1972, 46 SCRA 160, 169.
10. CONST., supra.
11. Supra.
12. CONST. (1973), art. IV, sec. 5.
13. Supra.
14. See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263 (1987 ed.).
15. CONST. (1987), art. III, sec. 6, supra.

16. See supra, art. VlI, sec. 18.
17. See Go Tek v. Deportation Board, No L-23846, September 9, 1977, 79 SCRA 17.
18. See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265,
and 34339, December 11, 1971, 42 SCRA 448, 480.
19. Decision, supra, 21.
20. Supra.
21. Supra.
22. Supra, 22.

23. See CONST. (1987), art. VII, sec. 18, supra.
**. Abraham ("Ditto") Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976),
of cial student organ of the University of the Philippines. He was detained in the military
stockade for common criminals from January to August, 1976.
24. SPI No. 79-347 ("For: Violation of Presidential Decree No. 90 and Article 142 of the Revised
Penal Code, as amended" - The Judge Advocate General's Of ce, 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 Of cer,
Member], and the Minister of National Defense, Respondents - Supreme Court.
25. See Santos v. The Special Committee on Travel, et al., G.R. No. L-45748, June 28, 1977, of
which the undersigned was the counsel of the petitioner.

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EN BANC

[G.R. No. 88211. September 15, 1989.]

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

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RETURN TO ONE'S COUNTRY, NOT

7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL A GRAVE ABUSE OF

(1) Have the requirements of due process been

3) The above-mentioned rights shall not be subject to any restrictions except

There are thus gradations to the question, to wit:

CD Technologies Asia, Inc. 2016 cdasiaonline.com

xxx xxx xxx

The Power Involved

The Extent of Review

GUTIERREZ, JR. , J., dissenting:

CD Technologies Asia, Inc. 2016 cdasiaonline.com

CD Technologies Asia, Inc. 2016 cdasiaonline.com

CRUZ, J., dissenting:

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we

PADILLA, J., dissenting:

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

5. Decision, supra, 18; emphasis in the original.

CD Technologies Asia, Inc. 2016 cdasiaonline.com

8. FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.)

15. CONST. (1987), art. III, sec. 6, supra.

22. Supra, 22.

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