Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA,

IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs,
Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense
and Chief of Staff, respectively, respondents.

CORTES, J.:

Before the Court is a 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 consilidation of power have not been
unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of
television station Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the
capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their followers
in the country. The ratification of the 1987 Constitution enshrined the victory of "people power" and also clearly
reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody
challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the
February Revolution, led a failed coup that left scores of people, both combatants and civilians, dead. There
were several other armed sorties of lesser significance, but the message they conveyed was the same — a
split in the ranks of the military establishment that thraetened civilian supremacy over military and brought to
the fore the realization that civilian government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements and among rabid
followers of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in
Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the communists have set up a
parallel government of their own on the areas they effectively control while the separatist are virtually free to
move about in armed bands. There has been no let up on this groups' determination to wrest power from the
govermnent. Not only through resort to arms but also to through the use of propaganda have they been
successful in dreating chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation
attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three
years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino,
considering the dire consequences to the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to rise and move forward, has stood
firmly on the decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into
exile after causing twenty years of political, economic and social havoc in the country and who within the short
space of three years seeks to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the 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

Th 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 family to
the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his family
from returning to the Philippines, in the interest of "national security, public safety or public
health

a. Has the President made a finding that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety or public health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with in making such
finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's
decision, including the grounds upon which it was based, been made known to
petitioners so that they may controvert the same?

c. Is the President's determination that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety, or public health
a political question?

d. Assuming that the Court may inquire as to whether the return of former President Marcos and
his family is a clear and present danger to national security, public safety, or public health, have
respondents established such fact?
 3. Have the respondents, therefore, in implementing the President's decision to bar the return of
former President Marcos and his family, acted and would be acting without jurisdiction, or in
excess of jurisdiction, or with grave abuse of discretion, in performing any act which would
effectively bar the return of former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1

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.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the
Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence within the borders
of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines,
provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case involves a political
question which is non-justiciable. According to the Solicitor General:
 As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E.
Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at this
time in the face of the determination by the President that such return and residence will
endanger national security and public safety.

It may be conceded that as formulated by petitioners, the question is not a political question as it
involves merely a determination of what the law provides on the matter and application thereof
to petitioners Ferdinand E. Marcos and family. But when the question is whether the two rights
claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with the more
primordial and transcendental right of the State to security and safety of its nationals, the
question becomes political and this Honorable Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and
reestablish their residence here? This is clearly a justiciable question which this Honorable
Court can decide.

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

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and
family shall return to the Philippines and establish their residence here? This is now a political
question which this Honorable Court can not decide for it falls within the exclusive authority and
competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security over individual rights. In support
thereof, they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal, military, or civil
service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for
reasons of national security and public safety has international precedents. Rafael Trujillo of the Dominican
Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King
Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela
were among the deposed dictators whose return to their homelands was prevented by their governments. [See
Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-
32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits.
We, however, view this issue in a different light. Although we give due weight to the parties' formulation of the
issues, we are not bound by its narrow confines in arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines of the right to travel and
the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78
SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed
the right to travel and recognized exceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the Philippines to other
countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the
right involved is the right to return to one's country, a totally distinct right under international law, independent
from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the
International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within
the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct
rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each
state" [Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his country."
[Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to
choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art. 12(2)]
which rights may be restricted by such laws as "are necessary to protect national security, public order, public
health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would
therefore be inappropriate to construe the limitations to the right to return to one's country in the same context
as those pertaining to the liberty of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which
treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return
may be considered, as a generally accepted principle of international law and, under our Constitution, is part of
the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to
travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e.,
against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not determinative of this case and are only tangentially material
insofar as they relate to a conflict between executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and even in American jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on
the right to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for
its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the methodology for its
resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not
the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines.
Then, we shall determine, pursuant to the express power of the Court under the Constitution in Article VIII,
Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or
excess of jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious
threat to national interest and welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches of government.
To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution
has blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the
judicial departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the
legislative power shall be vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power
shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.] These
provisions not only establish a separation of powers by actual division [Angara v. Electoral Commission, supra]
but also confer plenary legislative, executive and judicial powers subject only to limitations provided in the
Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of
the legislative power means a grant of all legislative power; and a grant of the judicial power means a grant of
all the judicial power which may be exercised under the government." [At 631-632.1 If this can be said of the
legislative power which is exercised by two chambers with a combined membership of more than two hundred
members and of the judicial power which is vested in a hierarchy of courts, it can equally be said of the
executive power which is vested in one official the President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the
Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the
same article it touches on the exercise of certain powers by the President, i.e., the power of control over all
executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers
under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to
grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power
to enter into treaties or international agreements, the power to submit the budget to Congress, and the power
to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the framers of the
Constitution intend that the President shall exercise those specific powers and no other? Are these se
enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that the
President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they assert:
"The President has enumerated powers, and what is not enumerated is impliedly denied to her. Inclusion unius
est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the
institution of the U.S. Presidency after which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with the same problem. He
said:

Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same token,
to those who think that constitution makers ought to leave considerable leeway for the future
play of political forces, it should be a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The executive power shall
be vested in a President of the United States of America." . . .. [The President: Office and
Powers, 17871957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who held the office
from Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's
dictatorship, he concluded that "what the presidency is at any particular moment depends in important
measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of course, an
agency of government subject to unvarying demands and duties no remained, of cas President.
But, more than most agencies of government, it changed shape, intensity and ethos according
to the man in charge. Each President's distinctive temperament and character, his values,
standards, style, his habits, expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive branch, said Clark Clifford,
was a chameleon, taking its color from the character and personality of the President. The thrust
of the office, its impact on the constitutional order, therefore altered from President to President.
Above all, the way each President understood it as his personal obligation to inform and involve
the Congress, to earn and hold the confidence of the electorate and to render an accounting to
 the nation and posterity determined whether he strengthened or weakened the constitutional
order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the
consideration of tradition and the development of presidential power under the different constitutions are
essential for a complete understanding of the extent of and limitations to the President's powers under the
1987 Constitution. The 1935 Constitution created a strong President with explicitly broader powers than the
U.S. President. The 1973 Constitution attempted to modify the system of government into the parliamentary
type, with the President as a mere figurehead, but through numerous amendments, the President became
even more powerful, to the point that he was also the de facto Legislature. The 1987 Constitution, however,
brought back the presidential system of government and restored the separation of legislative, executive and
judicial powers by their actual distribution among three distinct branches of government with provision for
checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions pertain
to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It also grants the President other powers that
do not involve the execution of any provision of law, e.g., his power over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of
specific powers of the President, it maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive power is more than the sum of specific
powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has
to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S.
189 (1928), on the issue of who between the Governor-General of the Philippines and the Legislature may vote
the shares of stock held by the Government to elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:

...Here the members of the legislature who constitute a majority of the "board" and "committee"
respectively, are not charged with the performance of any legislative functions or with the doing
of anything which is in aid of performance of any such functions by the legislature. Putting aside
for the moment the question whether the duties devolved upon these members are vested by
the Organic Act in the Governor-General, it is clear that they are not legislative in character, and
still more clear that they are not judicial. The fact that they do not fall within the authority of
either of these two constitutes logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are divided ....[At 202-203; Emphasis
supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of government to
embrace only what are specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black and white.
Even the more specific of them are found to terminate in a penumbra shading gradually from
one extreme to the other. ....

xxx xxx xxx

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

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and
protect the people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life,
liberty and property, and the promotion of the general welfare are essentially ideals to guide governmental
action. But such does not mean that they are empty words. Thus, in the exercise of presidential functions, in
drawing a plan of government, and in directing implementing action for these plans, or from another point of
view, in making any decision as President of the Republic, the President has to consider these principles,
among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the
President is, under the Constitution, constrained to consider these basic principles in arriving at a decision.
More than that, having sworn to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people
have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of the
Government exercising the powers delegated by the people forget and the servants of the people become
rulers, the Constitution reminds everyone that "[s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to the country are the
deposed dictator and his family at whose door the travails of the country are laid and from whom billions of
dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional guarantees they invoke
are neither absolute nor inflexible. For the exercise of even the preferred freedoms of speech and
ofexpression, although couched in absolute terms, admits of limits and must be adjusted to the requirements of
equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect the
general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not
forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is
a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a
power implicit in the President's duty to take care that the laws are faithfully executed [see Hyman, The
American President, where the author advances the view that an allowance of discretionary power is
unavoidable in any government and is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as protector of the peace. Rossiter
The American Presidency].The power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and internal threats
to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in-
Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus
or declaring martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has been
recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to return to the
Philippines "as a genuine unselfish gesture for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights under the Constitution and our laws." [House
Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power to bar the
Marcoses from returning to the Philippines, rather, it appeals to the President's sense of compassion to allow a
man to come home to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of
abode and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated
situations even remotely similar to the present one. It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In that context, such request or
demand should submit to the exercise of a broader discretion on the part of the President to determine whether
it must be granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the
issue constitutes a political question which is beyond the jurisdiction of the Court to decide.

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the determination
of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President's recognition of a foreign government, no matter
how premature or improvident such action may appear. We cannot set aside a presidential pardon though it
may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution
under the guise of resolving a dispute brought before us because the power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for
the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1
of the Constitution, defining "judicial power," which specifically empowers the courts to determine whether or
not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42
SCRA 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of
the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is not absolute. What is more, it
goes hand in hand with the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is merely to check — not to
 supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of
his act [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist factual bases for the
President to conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If
such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she has gravely
abused her discretion in deciding to bar their return.

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the
briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security
Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's
decision..

The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by
a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab
power, urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention
only a few. The documented history of the efforts of the Marcose's and their followers to destabilize the
country, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time
would only exacerbate and intensify the violence directed against the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The military establishment has
given assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the
return of the Marcoses that may prove to be the proverbial final straw that would break the camel's back. With
these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in
prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence
against the State, that would be the time for the President to step in and exercise the commander-in-chief
powers granted her by the Constitution to suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre- emptive action against threats to its existence if, though still
nascent they are perceived as apt to become serious and direct. Protection of the people is the essence of the
duty of government. The preservation of the State the fruition of the people's sovereignty is an obligation in the
highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution
the laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships
brought about by the plunder of the economy attributed to the Marcoses and their close associates and
relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth
stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles
and stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The
resulting precarious state of our economy is of common knowledge and is easily within the ambit of judicial
notice.

The President has determined that the destabilization caused by the return of the Marcoses would wipe away
the gains achieved during the past few years and lead to total economic collapse. Given what is within our
individual and common knowledge of the state of the economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former President Marcos and his family at the present time
and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their
return to the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.

SEPARATE OPINIONS

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a simmering
separatist movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these
threats is an explosive ingredient in a steaming cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E.
Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-written
ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the
imperatives of events and contemporary imponderables rather than on abstract theories of law. History and
time-honored principles of constitutional law have conceded to the Executive Branch certain powers in times of
crisis or grave and imperative national emergency. Many terms are applied to these powers: "residual,"
"inherent," 44 moral," "implied," "aggregate," "emergency." whatever they may be called, the fact is that these
powers exist, as they must if the governance function of the Executive Branch is to be carried out effectively
and efficiently. It is in this context that the power of the President to allow or disallow the Marcoses to return to
the Philippines should be viewed. By reason of its impact on national peace and order in these admittedly
critical times, said question cannot be withdrawn from the competence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present
danger to public order and safety. One needs only to recall the series of destabilizing actions attempted by the
so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize
this. The most publicized of these offensives is the Manila Hotel incident which occurred barely five (5) months
after the People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by
Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the
oath-taking of Arturo Tolentino as acting president of the Philippines. The public disorder and peril to life and
limb of the citizens engendered by this event subsided only upon the eventual surrender of the loyalist soldiers
to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military
rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A
hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked
Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air Force Strike
wing commander and his deputy hostage. Troops on board several vehicles attempted to enter Gate I of Camp
Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through
Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated
members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?
Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the government
resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms and
ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group members
were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful plot known as
Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to
mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for the
projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people power"
movement was neutralized thru checkpoints set up by the authorities along major road arteries where the
members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates
heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden
their followers toward similar actions, but any such action would be seized upon as an opportunity by other
enemies of the State, such as the Communist Party of the Philippines and the NPA'S, the Muslim
secessionists and extreme rightists of the RAM, to wage an offensive against the government. Certainly, the
state through its executive branch has the power, nay, the responsibility and obligation, to prevent a grave and
serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one
factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the
requested return. I refer to the public pulse. It must be remembered that the ouster of the Marcoses from the
Philippines came about as an unexpected, but certainly welcomed, result of the unprecedented peoples
power" revolution. Millions of our people braved military tanks and firepower, kept vigil, prayed, and in
countless manner and ways contributed time, effort and money to put an end to an evidently untenable claim to
power of a dictator. The removal of the Marcoses from the Philippines was a moral victory for the Filipino
people; and the installation of the present administration, a realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,
compassion and even Filipino tradition. The political and economic gains we have achieved during the past
three years are however too valuable and precious to gamble away on purely compassionate considerations.
Neither could public peace, order and safety be sacrificed for an individual's wish to die in his own country.
Verily in the balancing of interests, the scales tilt in favor of presidential prerogative, which we do not find to
have been gravely abused or arbitrarily exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious
consequences was ever invented by the wit of man than that any of its provisions can be suspended during
any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident
truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court
has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for
both unloved and despised persons on one hand and the rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are
interpreting the Constitution for only one person and constituting him into a class by himself. The Constitution
is a law for all classes of men at all times. To have a person as one class by himself smacks of unequal
protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of
power. Mr. Marcos is insensate and would not live if separated from the machines which have taken over the
functions of his kidneys and other organs. To treat him at this point as one with full panoply of power against
whom the forces of Government should be marshalled is totally unrealistic. The Government has the power to
arrest and punish him. But does it have the power to deny him his right to come home and die among familiar
surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public
safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify
his acts under martial law. There is, however, no showing of the existence of a law prescribing the limits of the
power to impair and the occasions for its exercise. And except for citing breaches of law and order, the more
serious of which were totally unrelated to Mr. Marcos and which the military was able to readily quell, the
respondents have not pointed to any grave exigency which permits the use of untrammeled Governmental
power in this case and the indefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to
consider. They contend that the decision to ban former President Marcos, and his family on grounds of national
security and public safety is vested by the Constitution in the President alone. The determination should not be
questioned before this Court. The President's finding of danger to the nation should be conclusive on the
Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred on the courts by
express constitutional or statutory provisions. It is not so easy, however, to define the phrase
political question, nor to determine what matters fall within its scope. It is frequently used to
designate all questions that he outside the scope of the judicial power. More properly, however,
it means those questions which, under the constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum (supra), it refers to 'those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government. It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice William J. Brennan Jr., who penned
the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663
[1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a political question, which identifies it as essentially a function of
the separation of powers. Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made; or potentiality of
embarrassment from multifarious pronouncements by various departments on one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the President or
Congress, the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power
against a civil right which claim is not found in a specific provision is dangerous. Neither should we validate a
roving commission allowing public officials to strike where they please and to override everything which to
them represents evil. The entire Government is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted
specifying the circumstances when the right may be impaired in the interest of national security or public
safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless violence,
invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim martial law in the
event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in
rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to suspend the
privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his
family. To be sure, there may be disturbances but not of a magnitude as would compel this Court to resort to a
doctrine of non- justiceability and to ignore a plea for the enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The
constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the
"loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so constitute the
strongest indication that the hard core "loyalists" who would follow Marcos right or wrong are so few in number
that they could not possibly destabilize the government, much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of
Filipino customs and traditions to allow a dying person to return to his home and breath his last in his native
surroundings. Out of the 103 Congressmen who passed the House resolution urging permission for his return,
there are those who dislike Mr. Marcos intensely or who suffered under his regime. There are also many
Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and his family should be
permitted to return to the Philippines and that such a return would deprive his fanatic followers of any further
reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional
guarantee of liberty of abode and the citizen's right to travel as against the respondents' contention that
national security and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there
is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a judicial
determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the
limits prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not
even by the President. Section 6 further provides that the right to travel, and this obviously includes the right to
travel out of or back into the Philippines, cannot be impaired except in the interest of national security, public
safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or from the
Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor
General immigration, health, quarantine, passports, motor vehicle, destierro probation, and parole are all
inapplicable insofar as the return of Mr. Marcos and family is concerned. There is absolutely no showing how
any of these statutes and regulations could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply be
applying the Constitution, in the preservation and defense of which all of us in Government, the President and
Congress included, are sworn to participate. Significantly, the President herself has stated that the Court has
the last word when it comes to constitutional liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political
question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).

Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary
criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience.
Every major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the
proclamation of martial law, the ratification of a new constitution, the arrest and detention of "enemies of the
State" without charges being filed against them, the dissolution of Congress and the exercise by the President
of legislative powers, the trial of civilians for civil offenses by military tribunals, the seizure of some of the
country's biggest corporations, the taking over or closure of newspaper offices, radio and television stations
and other forms of media, the proposals to amend the Constitution, etc. was invariably met by an invocation
that the petition involved a political question. It is indeed poetic justice that the political question doctrine so
often invoked by then President Marcos to justify his acts is now being used against him and his family.
Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound by the
Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition
of judicial power was added to the vesting in the Supreme Court and statutory courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

This new provision was enacted to preclude this Court from using the political question doctrine as a means to
avoid having to make decisions simply because they are too controversial, displeasing to the President or
Congress, inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed the Court
during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases
where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at least two of
the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the main petitioner)
and his use of the political question doctrine. The Constitution was accordingly amended. We are now
precluded by its mandate from refusing to invalidate a political use of power through a convenient resort to the
question doctrine. We are compelled to decide what would have been non-justiceable under our decisions
interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to resolve. There are still
some political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue
before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national
security do not readily lend themselves to the presentation of proof before a court of justice. The vital
information essential to an objective determination is usually highly classified and it cannot be rebutted by
those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court
was faced with a similar situation. It posed a rhetorical question. If after investigating conditions in the
Archipelago or any part thereof, the President finds that public safety requires the suspension of the privilege
of the writ of habeas corpus, can the judicial department investigate the same facts and declare that no such
conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII
of the Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual
briefing with a lawyer for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile,
(121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the
president acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its
very limited machinery fit] cannot be in better position [than the Executive Branch] to ascertain
or evaluate the conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It
must rely on the Executive Branch which has the appropriate civil and military machinery for the
facts. This was the method which had to be used in Lansang. This Court relied heavily on
classified information supplied by the military. Accordingly, an incongruous situation obtained.
For this Court, relied on the very branch of the government whose act was in question to obtain
the facts. And as should be expected the Executive Branch supplied information to support its
position and this Court was in no situation to disprove them. It was a case of the defendant
judging the suit. After all is said and done, the attempt by its Court to determine whether or not
the President acted arbitrarily in suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from
giving the seal of approval to the act of the Executive Branch. For it is possible that the
suspension of the writ lacks popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the
facts given to it by the Executive Branch) it in effect participates in the decision-making process.
It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an
unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for
determining the clear and present danger to national security and public safety. The majority of the Court has
taken judicial notice of the Communist rebellion, the separatist movement, the rightist conspiracies, and urban
terrorism. But is it fair to blame the present day Marcos for these incidents? All these problems are totally
unrelated to the Marcos of today and, in fact, are led by people who have always opposed him. If we use the
problems of Government as excuses for denying a person's right to come home, we will never run out of
justifying reasons. These problems or others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon
judicial notice of the implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present danger to
national security and public safety will arise if Mr. Marcos and his family are allowed to return to the
Philippines. It was only after the present petition was filed that the alleged danger to national security and
public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself limits
the reason for the ban Marcos policy to — (1) national welfare and interest and (2) the continuing need to
preserve the gains achieved in terms of recovery and stability. (See page 7, respondents' Comment at page 73
of Rollo). Neither ground satisfies the criteria of national security and public safety. The President has been
quoted as stating that the vast majority of Filipinos support her position. (The Journal, front page, January
24,1989) We cannot validate their stance simply because it is a popular one. Supreme Court decisions do not
have to be popular as long as they follow the Constitution and the law. The President's original position "that it
is not in the interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila
Times, front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that
"considerations of the highest national good dictate that we preserve the substantial economic and political
gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing
health. (Daily Globe, front page, February 15, 1989). "Interest of the nation national good," and "preserving
economic and political gains," cannot be equated with national security or public order. They are too generic
and sweeping to serve as grounds for the denial of a constitutional right. The Bill of Rights commands that the
right to travel may not be impaired except on the stated grounds of national security, public safety, or public
health and with the added requirement that such impairment must be "as provided by law." The constitutional
command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on
injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest
and most present danger to national security and constitutional freedoms. Nobody has suggested that one way
to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to flee the country because of
"peoples' power." Yet, there is no move to arrest and exile the leaders of student groups, teachers'
organizations, pea ant and labor federations, transport workers, and government unions whose threatened
mass actions would definitely endanger national security and the stability of government. We fail to see how
Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists,
and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come
home is too speculative and unsubstantial a ground for denying a constitutional right. It is not shown how
extremists from the right and the left who loathe each other could find a rallying point in the coming of Mr.
Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone
sustains the claim of danger to national security is fraught with perilous implications. Any difficult problem or
any troublesome person can be substituted for the Marcos threat as the catalysing factor. The alleged
confluence of NPAs, secessionists, radical elements, renegade soldiers, etc., would still be present.
Challenged by any critic or any serious problem, the Government can state that the situation threatens a
confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of national security.
Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may be prohibited.
Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito
Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply
regret that the Court's decision to use the political question doctrine in a situation where it does not apply
raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured
the Court that a rebellion of the above combined groups will not succeed and that the military is on top of the
situation. Where then is the clear danger to national security? The Court has taken judicial notice of something
which even the military denies. There would be severe strains on military capabilities according to General de
Villa. There would be set-backs in the expected eradication of the Communist threat. There would be other
serious problems but all can be successfully contained by the military. I must stress that no reference was
made to a clear and present danger to national security as would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the
right to travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too
reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment
No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was unable to act
adequately on any matter for any reason that in his judgment required immediate action. When the Bill of
Rights provides that a right may not be impaired except in the interest of national security, public safety, or
public health and further requires that a law must provide when such specifically defined interests are
prejudiced or require protection, the inaction of Congress does not give reason for the respondents to assume
the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling
against an unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We
have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up
to machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The
physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right
which is legally demandable and enforceable. For his own good, it might be preferable to stay where he is. But
he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a
constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel
documents or any formal lifting of the Marcos ban as would allow international airlines to sell them tickets
would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we
should differentiate the right to return home from the right to go abroad or to move around in the Philippines. If
at all, the right to come home must be more preferred than any other aspect of the right to travel. It was
precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and
scores of other "undesirables" and "threats to national security" during that unfortunate period which led the
framers of our present Constitution not only to re-enact but to strengthen the declaration of this right. Media
often asks, "what else is new?" I submit that we now have a freedom loving and humane regime. I regret that
the Court's decision in this case sets back the gains that our country has achieved in terms of human rights,
especially human rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who
were barred by their successors from returning to their respective countries. There is no showing that the
countries involved have constitutions which guarantee the liberty of abode and the freedom to travel and that
despite such constitutional protections, the courts have validated the "ban a return" policy. Neither is it shown
that the successors of the listed dictators are as deeply committed to democratic principles and as observant of
constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord
and to divide the nation. Opposition to the government no matter how odious or disgusting is, however,
insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless to defend
itself against a threat to national security? Does the President have to suspend the privilege of the writ of
habeas corpus or proclaim martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has
more than ample powers under eixisting law to deal with a person who transgresses the peace and imperils
public safety. But the denial of travel papers is not one of those powers because the Bill of Rights says so.
There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live — and die — in
his own country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit
simply because many believe Marcos to be beneath contempt and undeserving of the very liberties he flounted
when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we resolve it.
The question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which
may depend on the action we take today), the respondents have acted with grave abuse of discretion in
barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not,
that the petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government
was prepared to prove the justification for opposing the herein petition, i.e. that it had not acted arbitrarily. He
said it was. Accordingly, the Court, appreciating the classified nature of the information expected, scheduled a
closed-door hearing on July 25,1988. The Solicitor General and three representatives from the military
appeared for the respondents, together with former Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive
would pose a threat to the national security as it had alleged. The fears expressed by its representatives were
based on mere conjectures of political and economic destabilization without any single piece of concrete
evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's
decision" to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.

In holding that the President of the Philippines has
by the Constitution, the Court is taking a great
announced in Planas v. Gil (67 Phil. 62). This does
Commission, which was precisely to limit rather
excesses of the past dictatorship.
residual powers in addition to the specific powers granted
leap backward and reinstating the discredited doctrine
not square with the announced policy of the Constitutional
than expand presidential powers, as a reaction to the

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true
that the President had been granted the totality of executive power, "it is difficult to see why our forefathers
bothered to add several specific items, including some trifling ones, . . . I cannot accept the view that this
clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential
office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is
perhaps the most detested man in the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting throng"
that may make us see things through the prisms of prejudice. I bear in mind that when I sit in judgment as a
member of this Court, I must cast all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts and the
applicable law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear
is a phantom. That phantom did not rise when the people stood fast at EDSA against the threat of total
massacre in defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of
Constitutional Law. These principles have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of
the government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary
invoked. These rights are guaranteed by the Constitution to all individuals, including the patriot and the
homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a
society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the
Philippines may be resolved by answering two simple questions: Does he have the right to return to his own
country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration
of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country
except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on
is sheer speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by popular
will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should
be allowed to return to our country under the conditions that he and the members of his family be under house
arrest in his hometown in Ilocos Norte, and should President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline,
and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right of a
Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government to bar
such return in the interest of national security and public safety. In this context, the issue is clearly justiciable
involving, as it does, colliding assertions of individual right and governmental power. Issues of this nature more
than explain why the 1986 Constitutional Commission, led by the illustrious former Chief Justice Roberto
Concepcion, incorporated in the 1987 Constitution, the new provision on the power of Judicial Review, viz:

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel which, in
the language of the Constitution, shall not be impaired "except in the interest of national security, public safety,
or public health, as may be provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to
travel within the country, to travel out of the country and to return to the country (Philippines), is hardly
disputable. Short of all such components, the right to travel is meaningless. The real question arises in the
interpretation of the qualifications attached by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not agree. It
is my view that, with or without restricting legislation, the interest of national security, public safety or public
health can justify and even require restrictions on the right to travel, and that the clause "as may be provided
by law" contained in Article III, Section 6 of the 1987 Constitution merely declares a constitutional leave or
permission for Congress to enact laws that may restrict the right to travel in the interest of national security,
public safety or public health. I do not, therefore, accept the petitioners' submission that, in the absence of
enabling legislation, the Philippine Government is powerless to restrict travel even when such restriction is
demanded by national security, public safety or public health, The power of the State, in particular cases, to
restrict travel of its citizens finds abundant support in the police power of the state wich may be exercised to
preserve and maintain government as well as promote the general welfare of the greatest number of people.

And yet, the power of the State, acting through a government in authority at any given time, to restrict travel,
even if founded on police power, cannot be absolute and unlimited under all circumstances, much less, can it
be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right
to return to the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise
of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient
factual bases and data which would justify their reliance on national security and public safety in negating the
right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the "briefing"
given the Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain,
for convincing evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this
country. It appears to me that the apprehensions entertained and expressed by the respondents, including
those conveyed through the military, do not, with all due respect, escalate to proportions of national security or
public safety. They appear to be more speculative than real, obsessive rather than factual. Moreover, such
apprehensions even if translated into realities, would be "under control," as admitted to the Court by said
military authorities, given the resources and facilities at the command of government. But, above all, the
Filipino people themselves, in my opinion, will know how to handle any situation brought about by a political
recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in short, should not
accept respondents' general apprehensions, concerns and perceptions at face value, in the light of a
countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to
justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the generally
accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the Constitution), the
Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human
Rights which provides that everyone has the right to leave any country, including his own, and to return to his
country. This guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights
which states that "no one shall be arbitrarily deprived of the right to enter his own country." (Emphasis
supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to protect
an individual against unexpected, irresponsible or excessive encroachment on his rights by the state based on
national traditions or a particular sense of justice which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised the
argument of "national security" and "public safety," it is the duty of this Court to unquestioningly yield thereto,
thus casting the controversy to the realm of a political question. I do not agree. I believe that it is one case
where the human and constitutional light invoked by one party is so specific, substantial and clear that it cannot
be overshadowed, much less, nullified by simplistic generalities; worse, the Court neglects its duty under the
Constitution when it allows the theory of political question to serve as a convenient, and yet, lame excuse for
evading what, to me, is its clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right of
former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same time,
credibly 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 die and be buried in this country;

2. respondents have not shown any "hard evidence" or convincing proof why his right as a
Filipino to return should be denied him. All we have are general conclusions of "national
security" and "public safety" in avoidance of a specific demandable and enforceable
constitutional and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of
all members of the Court, in what appears to be an extended political contest, the "cold
neutrality of an impartial judge." It is only thus that we fortify the independence of this Court, with
fidelity, not to any person, party or group but to the Constitution and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take
exception to allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate
reason to fear that my brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble"
is concerned), have overstepped the bounds of judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to return
to one's country," pitted against "the right of travel and freedom of abode", and their supposed distinctions
under international law, as if such distinctions, under international law in truth and in fact exist. There is only
one right involved here, whether under municipal or international law: the light of travel, whether within one's
own country, or to another, and the right to return thereto. The Constitution itself makes no distinctions; let
then, no one make a distinction. Ubi lex non distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a
citizen his right to travel (back to the country or to another)? It is a question that, in essence, involves the
application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of the power,
thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations on
the exercise of specific powers of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common good. Hence, lest
the officers of the Government exercising the powers delegated by the people forget and the
servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the President's
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power
of the President but also his duty to do anything not forbidden by the Constitution or the laws
that the needs of the nation demanded [See Corwin, supra, at 153]. It is a power borne by the
President's duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully executed [See Hyman,
The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by
constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando:
"A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights.
Precisely a constitution exists to assure that in the discharge of the governmental functions, the dignity that is
the birthright of every human being is duly safeguarded. To be true to its primordial aim a constitution must lay
down the boundaries beyond which he's forbidden territory for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct mandate of
the fundamental law. It will not suffice, so I submit, to say that the President's plenitude of powers, as provided
in the Constitution, or by sheer constitutional implication, prevail over express constitutional commands.
"Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of public law, "this argument ... rests ...
not upon the text of the (Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the
intent of the Charter to create an exception, that is, by Presidential action, to the right of travel or liberty of
abode and of changing the same other than what it explicitly says already ("limits prescribed by law" 10 or
"upon lawful order of the court" 11 the Charter could have specifically declared so. As it is, the lone deterrents
to the right in question are: (1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a
third exception, that is, by Presidential initiative, it could have so averred. It would also have made the
Constitution, as far as limits to the said right are concerned, come full circle: Limits by legislative, judicial, and
executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is
there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the
interest of national security, public safety, or public health. 13 Arguably, the provision enabled the Chief
Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices as
"hamletting", forced relocations, or the establishment of free-fire zones. 14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so
appears, the right may be impaired only "within the limits provided by law . 15 The President is out of the
picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign
affairs; 17 the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a
formidable barrier against Presidential action. (Even on matters of State security, this Constitution prescribes
limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been
proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public
health?" What appears in the records are vehement insistences that Marcos does pose a threat to the national
good and yet, at the same time, we have persistent claims, made by the military top brass during the lengthy
closed-door hearing on July 25, 1989, that "this Government will not fall" should the former first family in exile
step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court
itself must be content that the threat is not only clear, but more so, present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open
to no doubt. But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we
unravel chinks in our political armor. It also flies in the face of claims, so confidently asserted, that "this
Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial
law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices,
and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the
continued banishment of Marcos. Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I
indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been
shown to justify the 'balancing act" referred to. Worse, these conjectures contradict contentions that as far as
Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as
protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also
means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief
powers in times of emergency or to leading the State against external and internal threats to its existence" 22 is
a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially with respect to the
detestable Amendment No. 6), it is inconsistent with the express provisions of the commander-in-chief clause
of the 1987 Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of
Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was arrested
and detained, without judicial warrant or decision, for seven months and seven days. He was held
incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The deplorable
conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on November 11, 1977,
a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14,
1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and
Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor
mongering " 24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines),
a book extremely critical of martial rule, published by him and former Congressman Concordia, authored by
President Macapagal and translated into Tagalog by Congressman Rogaciano Mercado. In addition, they were
also all accused of libel in more than two dozens of criminal complaints filed by the several military officers
named in the "condemned" book as having violated the human rights of dissenters, and for other crimes, in the
office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them free from house arrest
and these political offenses. I am for Marcos' return not because I have a score to settle with him. Ditto's death
or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for
his crimes to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial
and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the
liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded, and by
speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no more of
human rights violations be repeated against any one, friend or foe. In a democratic framework, there is no this
as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the present
Constitution and existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.