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.

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this application for habeas
corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant
democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic
principles of popular government, and if we give expression to the paramount purpose for which the courts, as an
independent power of such a government, were constituted. The primary question is — Shall the judiciary permit a
government of the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for
other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the
best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been
permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women
were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities
quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders
from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the
houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression
that they were being taken to a police station for an investigation. They had no knowledge that they were destined
for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor
indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their
unwilling passengers sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The women were landed and receipted for as
laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The
governor and the hacendero Yñigo, who appear as parties in the case, had no previous notification that the women
were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the
serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of
this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine
relations with men, others went to work in different capacities, others assumed a life unknown and disappeared, and
a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of the deportees presented an application for habeas
corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was
made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned
them all, the application will be considered as including them. The application set forth the salient facts, which need
not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was
made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted
certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the
petitioners were not proper parties, because the action should have been begun in the Court of First Instance for
Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their
custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good
salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted, in answer to question of
a member of the court, that these women had been sent out of Manila without their consent. The court awarded the
writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yñigo,
an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty,
on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel
for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the
day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of those who had been able to come back to
Manila through their own efforts, were notified by the police and the secret service to appear before the court. The
fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the
answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then
in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did
not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the
Supreme Court because the women had never been under his control, because they were at liberty in the Province
of Davao, and because they had married or signed contracts as laborers. Respondent Yñigo answered alleging that
he did not have any of the women under his control and that therefore it was impossible for him to obey the
mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that
the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to
do so, and therefore directed that those of the women not in Manila be brought before the court by respondents
Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the women should, in written statements
voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless
the respondents should demonstrate some other legal motives that made compliance impossible. It was further
stated that the question of whether the respondents were in contempt of court would later be decided and the
reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and
policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the women who had returned to the city through their
own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by
their returns, once again recounted the facts and further endeavored to account for all of the persons involved in
the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao
who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda.
The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police
of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz,
fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los
recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final
decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were isolated from society,
and then at night, without their consent and without any opportunity to consult with friends or to defend their rights,
were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove
that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of
the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night
to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the
respondents.

With this situation, a court would next expect to resolve the question — By authority of what law did the Mayor and
the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within
the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-
General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine
Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and
punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other
States have statutes providing for the commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a
leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for
any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of
that city to force citizens of the Philippine Islands — and these women despite their being in a sense lepers of
society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are
other citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any
person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill
of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction.
Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If
the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of
the Philippines have the same privilege. If these officials can take to themselves such power, then any other official
can do the same. And if any official can exercise the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law from one locality to another within the country,
then officialdom can hold the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or imprisoned, or be
disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will
we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no
man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng.
stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion
of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man
who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and
to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882],
106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man
may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at
the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of
slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ
of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the
courts should permit a government of men or a government of laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may
still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to
meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in force in the
Philippines who shall banish any person to a place more than two hundred kilometers distant from his
domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three
hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general character in force
in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty
of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two
hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer
has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously
as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge
Cooley in a case which will later be referred to — "It would be a monstrous anomaly in the law if to an application by
one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a
crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow
process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was
devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and
only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the
writ, whose principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance
in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court
should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by
respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila
only extends to the city limits and that perforce they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the
deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code
of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal
liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the
court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should
have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary
expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of
first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court
or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of
Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance
it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by
which to advance their plea before that court. On the other hand, it was shown that the petitioners with their
attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained
of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and
decided immediately by the appellate court. The failure of the superior court to consider the application and then to
grant the writ would have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says
counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush,
this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first
principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of
action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to
other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as
effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were
prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly
waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of any
municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries
of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim
that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We
believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power
to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so.
Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the
application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under
no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily
have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not
be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with
impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ
of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange
as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of
respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ
of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into
the State a minor child under guardianship in the State, who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided.
Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue.
Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions,
and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition
which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a
fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of
right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for
the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper
remedy, as I can not doubt they would, on the subject being brought to their notice. . . .
 The second proposition — that the statutory provisions are confined to the case of imprisonment within the
state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the
case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the
statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to
and served upon, not the person confined, but his jailor. It does not reach the former except through the
latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the
court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent
upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion
are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted
to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to
the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the
limits of the state, except as greater distance may affect it. The important question is, where the power of
control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881],
57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by
the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the
mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a
certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ
had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible
for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the
defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a
command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown
to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted
with the possession of the child before the issuing of the writ, the defendant had no longer power to produce
the child, that might be an answer; but in the absence of any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many
efforts have been made in argument to shift the question of contempt to some anterior period for the
purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the writ. The question is whether there has been a
contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews,
12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to
have before the circuit court of the District of Columbia three colored persons, with the cause of their detention.
Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ
of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show
that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court
held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being
present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he
should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that
Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged
in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5
Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd
ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted
a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of the Supreme Court
awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or
be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yñigo to
present the persons named in the writ before the court on December 2, 1918. The order was dated November 4,
1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the
record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of
his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do
so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have
produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit
that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could
have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code
of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was
granted; they did not show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended
with their life in Davao, some of which have since been repudiated by the signers, were appended to the return.
That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back
to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at
their own expense or were produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the
non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar
facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought
about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to
use every effort to get the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in
the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other
words, the return did not show that every possible effort to produce the women was made by the respondents. That
the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze
the spectacle of a clash between executive officials and the judiciary, and because it desired to give the
respondents another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous and to have
shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided.
While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading
of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see
this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty, it can be made the object of separate habeas
corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this
connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police
force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, an hacendero of
Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which
the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person
and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce
the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed
in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that
any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in
opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful
mitigating circumstance. The hacendero Yñigo appears to have been drawn into the case through a misconstruction
by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to
fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court,
his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into
this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who
was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made
arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ of habeas corpus issued by the court was only
tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the
penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him
as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that
since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of
the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to
lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his later activity may be considered only as
extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive — such
an amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The respondents
Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt of court. Respondent
Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days
the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record
the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against
respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision
may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal
encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.
G.R. No. 88211 September 15, 1989

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

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved, the
Court's decision in this case would undeniably have a profound effect on the political, economic and other aspects
of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people
power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic
under a revolutionary government. Her ascension to and consilidation of power have not been unchallenged. The
failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7
by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos
spouses to surreptitiously return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms
dealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their 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 residual powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas
v. Gil (67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was
precisely to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the
President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add
several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of
all conceivable executive power but regard it as an allocation to the presidential office of the generic powers
thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the
most detested man in the entire history of our country. But we are not concerned here with popularity and
personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us
see things through the prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I
must cast all personal feelings aside.

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

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

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

I vote to grant the petition.

PARAS, J., dissenting:

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

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

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

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

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

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

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

PADILLA, J., dissenting:

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

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

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

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

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

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

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

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

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

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

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

G.R. No. L-62100 May 30, 1986

RICARDO L. MANOTOC, JR., petitioner,

vs.
THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as Judges of the
Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE PHILIPPINES, the SECURITIES &
EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as Commissioner of Immigration, and the Chief of the
Aviation Security Command (AVSECOM), respondents.

FERNAN, J.:

The issue posed for resolution in this petition for review may be stated thus: Does a person facing a criminal
indictment and provisionally released on bail have an unrestricted right to travel?

Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management, Inc. and
the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of the latter into the
hands of professional men, he holds no officer-position in said business, but acts as president of the former
corporation.

Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction, petitioner,
who was then in the United States, came home, and together with his co-stockholders, filed a petition with the
Securities and Exchange Commission for the appointment of a management committee, not only for Manotoc
Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities, Inc.,
docketed as SEC Case No. 001826, entitled, "In the Matter of the Appointment of a Management Committee for
Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management
committee was organized and appointed.
Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the then
Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a memorandum to this
effect was issued by the Commissioner on February 4, 1980 to the Chief of the Immigration Regulation Division.

When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, six of its
clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as president and vice-
president, respectively, of Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were
filed by the investigating fiscal before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos.
45399 and 45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to
Judge Pronove. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU
Instance Corporation as surety.

On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave
the country," stating as ground therefor his desire to go to the United States, "relative to his business transactions
and opportunities."1 The prosecution opposed said motion and after due hearing, both trial judges denied the same.
The order of Judge Camilon dated March 9, 1982, reads:

Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing ground that
his trip is ... relative to his business transactions and opportunities.

The Court sees no urgency from this statement. No matter of any magnitude is discerned to warrant
judicial imprimatur on the proposed trip.

In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in the future
until these two (2) cases are terminated .2

On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:

6.-Finally, there is also merit in the prosecution's contention that if the Court would allow the accused
to leave the Philippines the surety companies that filed the bail bonds in his behalf might claim that
they could no longer be held liable in their undertakings because it was the Court which allowed the
accused to go outside the territorial jurisdiction of the Philippine Court, should the accused fail or
decide not to return.

WHEREFORE, the motion of the accused is DENIED. 3

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or withdrawal of
the latter's memorandum dated February 4, 1980, but said request was also denied in a letter dated May 27, 1982.

Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals 4 seeking to annul the
orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as the communication-
request of the Securities and Exchange Commission, denying his leave to travel abroad. He likewise prayed for the
issuance of the appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation Security
Command (AVSECOM) to clear him for departure.

On October 5, 1982, the appellate court rendered a decision 5 dismissing the petition for lack of merit.

Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on certiorari. Pending
resolution of the petition to which we gave due course on April 14, 1983 6 petitioner filed on August 15, 1984 a
motion for leave to go abroad pendente lite.7 In his motion, petitioner stated that his presence in Louisiana, U.S.A. is
needed in connection "with the obtention of foreign investment in Manotoc Securities, Inc."8 He attached the letter
dated August 9, 1984 of the chief executive officer of the Exploration Company of Louisiana, Inc., Mr. Marsden W.
Miller9 requesting his presence in the United States to "meet the people and companies who would be involved in its
investments." Petitioner, likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of the
Regional Trial Court of Makati (formerly Nos. 45542-45545) had been dismissed as to him "on motion of the
prosecution on the ground that after verification of the records of the Securities and Exchange Commission ... (he)
was not in any way connected with the Manotoc Securities, Inc. as of the date of the commission of the offenses
imputed to him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati, however, remained
pending as Judge Camilon, when notified of the dismissal of the other cases against petitioner, instead of dismissing
the cases before him, ordered merely the informations amended so as to delete the allegation that petitioner was
president and to substitute that he was "controlling/majority stockholder,'' 11 of Manotoc Securities, Inc. On
September 20, 1984, the Court in a resolution en banc denied petitioner's motion for leave to go abroad pendente
lite. 12

Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted him bail
nor the Securities and Exchange Commission which has no jurisdiction over his liberty, could prevent him from
exercising his constitutional right to travel.

Petitioner's contention is untenable.

A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary
consequence of the nature and function of a bail bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person
who is in the custody of the law, that he will appear before any court in which his appearance may be required as
stipulated in the bail bond or recognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of keeping him,
pending the trial, and at the same time, to put the accused as much under the power of the court as
if he were in custody of the proper officer, and to secure the appearance of the accused so as to
answer the call of the court and do what the law may require of him. 13

The condition imposed upon petitioner to make himself available at all times whenever the court requires his
presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404
(1935).

... the result of the obligation assumed by appellee (surety) to hold the accused amenable at all
times to the orders and processes of the lower court, was to prohibit said accused from leaving the
jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and
inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the
Philippines they would have no binding force outside of said jurisdiction.

Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the
reach of the courts.

The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner
released thereunder, is to transfer the custody of the accused from the public officials who have him
in their charge to keepers of his own selection. Such custody has been regarded merely as a
continuation of the original imprisonment. The sureties become invested with full authority over the
person of the principal and have the right to prevent the principal from leaving the state.14

If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which
the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected
despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by petitioner himself,
notwithstanding his allegation that he is at total liberty to leave the country, for he would not have filed the motion for
permission to leave the country in the first place, if it were otherwise.

To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs.
Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage:

... The law obliges the bondsmen to produce the person of the appellants at the pleasure of the
Court. ... The law does not limit such undertaking of the bondsmen as demandable only when the
appellants are in the territorial confines of the Philippines and not demandable if the appellants are
out of the country. Liberty, the most important consequence of bail, albeit provisional, is indivisible. If
 granted at all, liberty operates as fully within as without the boundaries of the granting state. This
principle perhaps accounts for the absence of any law or jurisprudence expressly declaring that
liberty under bail does not transcend the territorial boundaries of the country.

The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The rather broad
and generalized statement suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence
expressly declaring that liberty under bail does not transcend the territorial boundaries of the country, it is not for the
reason suggested by the appellate court.

Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able to show
the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties to the proposed
travel thereby satisfying the court that she would comply with the conditions of her bail bond. in contrast, petitioner in
this case has not satisfactorily shown any of the above. As aptly observed by the Solicitor General in his comment:

A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is solely
predicated on petitioner's wish to travel to the United States where he will, allegedly attend to some
business transactions and search for business opportunities. From the tenor and import of
petitioner's motion, no urgent or compelling reason can be discerned to justify the grant of judicial
imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to
travel abroad. Petitioner's motion bears no indication that the alleged business transactions could
not be undertaken by any other person in his behalf. Neither is there any hint that petitioner's
absence from the United States would absolutely preclude him from taking advantage of business
opportunities therein, nor is there any showing that petitioner's non-presence in the United States
would cause him irreparable damage or prejudice. 15

Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it. Petitioner
merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The court cannot allow
the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance,
the government impliedly agrees "that it will not take any proceedings with the principal that will increase the risks of
the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may be
discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result
has been reached as to a stipulation or agreement to postpone the trial until after the final disposition of other cases,
or to permit the principal to leave the state or country." 16 Thus, although the order of March 26, 1982 issued by
Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the criminal cases
pending before said judge, We see the rationale behind said order.

As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the duration
thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial discretion in their
having denied petitioner's motion for permission to leave the country, in much the same way, albeit with contrary
results, that We found no reversible error to have been committed by the appellate court in allowing Shepherd to
leave the country after it had satisfied itself that she would comply with the conditions of her bail bond.

The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973
Constitution states:

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.

To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as contemplated by
the above-quoted constitutional provision.

Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court finds that no
gainful purpose will be served in discussing the other issues raised by petitioner.

WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

SO ORDERED.
Teehankee, C.J., Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and Paras, JJ.,
concur.

Feria, J., took no part.

G.R. No. 141529 June 6, 2001

FRANCISCO YAP, JR., aka EDWIN YAP, petitioner,

vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

GONZAGA-REYES, J.:

The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside two resolutions
of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on change of residence and travel
abroad.

For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the Regional Trial
Court of Pasig City1 and was sentenced to four years and two months of prision correctional, as minimum to eight
years of prision mayor as maximum, "in addition to one (1) year for each additional P10,000.00 in excess of
P22,000.00 but in no case shall it exceed twenty (20) years."2 He filed a notice of appeal, and moved to be allowed
provisional liberty under the cash bond he had filed earlier in the proceedings. The motion was denied by the trial
court in an order dated February 17,1999.

After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said court a Motion to
Fix Bail For the Provisional Liberty of Accused Appellant Pending Appeal, invoking the last paragraph of Section 5,
Rule 114 of the 1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General opined that
petitioner may be allowed to post bail in the amount of P5,500,000.00 and be required to secure "a
certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will
remain to be so until final judgment is rendered or in case he transfers residence, it must be with prior notice to the
court and private complainant."3 Petitioner filed a Reply, contending that the proposed bail ofP5,500,000.00 was
violative of his right against excessive bail.

The assailed resolution of the Court of Appeals4, issued on October 6, 1999, upheld the recommendation of the
Solicitor General; thus, its dispositive portion reads:

WHEREFORE, premises considered, the "Motion to Fix Bail For Provisional Liberty of Accused-Appellant
Pending Appeal" is hereby GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a. Edwin Yap is hereby
ALLOWED TO POST BAIL in the amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos,
subject to the following conditions, viz. :

(1) He (accused-appellant) secures a certification/guaranty from the Mayor of the place of his
residence that he is a resident of the area and that he will remain to be a resident therein until final
judgment is rendered or in case he transfers residence, it must be with prior notice to the court;

(2) The Commission of lmmigration and Deportation (CID) is hereby directed to issue a hold
departure order against accused-appellant; and
 (3) The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court for
safekeeping until the court orders its return;

(4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellant's bail
bond, the dismissal of appeal and his immediate arrest and confinement in jail.

SO ORDERED.5

A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by respondent court, but
was denied in a resolution issued on November 25, 1999. Hence, this petition.

Petitioner sets out the following assignments of error:

The respondent Court of Appeals committed grave abuse of discretion in fixing the bail of the provisional
liberty of petitioner pending appeal in the amount of P5 .5 million.

The respondent Court of Appeals committed grave abuse of discretion in basing the bail for the provisional
liberty of the petitioner on his civil liability.

The respondent Court of Appeals unduly restricted petitioner's constitutional liberty of abode and travel in
imposing the other conditions for the grant of bail.

Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively denied him his right
to bail. He challenges the legal basis of respondent court for fixing bail at P5,500,000.00, which is equivalent to the
amount of his civil liability to private complainant Manila Mahogany Marketing Corporation, and argues that the
Rules of Court never intended for the civil liability of the accused to be a guideline or basis for determining the
amount of bail. He prays that bail be reduced to at least P40,000.00, citing the maximum amount of bail that can be
posted for the crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he
posted during the trial of the case.6

On the other hand, the Solicitor General maintains that no grave abuse of discretion could be ascribed to the Court
of Appeals for fixing the amount of bail at P5,500,000.00 considering the severity of the penalty imposed, the weight
of the evidence against petitioner, and the gravity of the offense of which petitioner was convicted by the RTC. He
asserted that the P5,500,000.00 not only corresponded to civil liability but also to the amount of fraud imputed to
petitioner. The Solicitor General further pointed out the probability of flight in case petitioner is released on bail, it
having been established that petitioner was in possession of a valid passport and visa and had in fact left the
country several times during the course of the proceedings in the lower court. It was also shown that petitioner used
different names in his business transactions and had several abodes in different parts of the country.

As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the Court of Appeals
requires is notice in case of change of address; it does not in any way impair petitioner's right to change abode for
as long as the court is apprised of his change of residence during the pendency of the appeal.

Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which states:

SEC. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an offense not punishable
by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail
bond during the period to appeal subject to the consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20) years,
the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the
prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;
 (b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has
violated the conditions of his bail without valid justification;

(c) That the accused committed the offense while on probation, parole, or under conditional pardon;

(d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the
adverse party.7

There is no question that in the present case the Court of Appeals exercised its discretion in favor of allowing bail to
petitioner on appeal. Respondent court stated that it was doing so for "humanitarian reasons", and despite a
perceived high risk of flight, as by petitioner's admission he went out of the country several times during the
pendency of the case, for which reason the court deemed it necessary to peg the amount of bail at P5,500,000.00.

The prohibition against requiring excessive bail is enshrined in the Constitution.8 The obvious rationale, as declared
in the leading case of De la Camara vs. Enage,9 is that imposing bail in an excessive amount could render
meaningless the right to bail. Thus, in Villaseñor vs. Abano,10 this Court made the pronouncement that it will not
hesitate to exercise its supervisory powers over lower courts should the latter, after holding the accused entitled to
bail, effectively deny the same by imposing a prohibitory sum or exacting unreasonable conditions.

xxx There is grim irony in an accused being told that he has a right to bail but at the same time being
required to post such an exorbitant sum. What aggravates the situation is that the lower court judge would
apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect
for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in
the position of petitioner would under the circumstances be unable to resist thoughts of escaping from
confinement, reduced as he must have been to a state of desperation. In the same breath as he was told he
could be bailed out, the excessive amount required could only mean that provisional liberty would be beyond
his reach. It would have been more forthright if he were informed categorically that such a right could not be
availed of. There would have been no disappointment of expectations then. It does call to mind these words
of Justice Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a munificent
bequest in a pauper's will." XXX11

At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to consider the
following factors in the setting of the amount of bail:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when arrested; and
 (j) Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is
certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail
bond to an appropriate level, or requiring the person to report periodically to the court and to make an accounting of
his movements.12 In the present case, where petitioner was found to have left the country several times while the
case was pending, the Court of Appeals required the confiscation of his passport and the issuance of a hold-
departure order against him.

Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to
ensure against the risk of flight, particularly, the combination of the hold-departure order and the requirement that
petitioner inform the court of any change of residence and of his whereabouts. Although an increase in the amount
of bail while the case is on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is
unreasonable, excessive, and constitutes an effective denial of petitioner's right to bail.

The purpose for bail is to guarantee the appearance of the accused at the trial,13 or whenever so required by the
Court14. The amount should be high enough to assure the presence of the accused when required but no higher
than is reasonably calculated to fulfill this purpose.15 To fix bail at an amount equivalent to the civil liability of which
petitioner is charged (in this case, P5,500,000.00).is to permit the impression that the amount paid as bail is an
exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a
punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court.

At the same time, we cannot yield to petitioner's submission that bail in the instant case be set at P40,000.00 based
on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29, 2000, maintains recommended
bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20 years
of reclusion temporal). True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for
the guidance of state prosecutors, although technically not binding upon the courts, "merits attention, being in a
sense an expression of policy of the Executive Branch, through the Department of Justice, in the enforcement of
criminal laws."16 Thus, courts are advised that they must not only be aware but should also consider the Bail Bond
Guide due to its significance in the administration of criminal justice.17 This notwithstanding, the Court is not
precluded from imposing in petitioner's case an amount higher than P40,000.00 (based on the Bail Bond Guide)
where it perceives that an appropriate increase is dictated by the circumstances.

It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised Rules of Criminal
Procedure is clear that although the grant of bail on appeal is non-capital offenses is discretionary, when the penalty
imposed on the convicted accused exceeds six years and circumstances exist that point to the probability of flight if
released on bail, then the accused must be denied bail, or his bail previously granted should be cancelled.18 In the
same vein, the Court has held that the discretion to extend bail during the course of the appeal should be exercised
with grave caution and for strong reasons, considering that the accused had been in fact convicted by the trial
court.19 In an earlier case, the Court adopted Senator Vicente J. Francisco's disquisition on why bail should be
denied after judgment of conviction as a matter of wise discretion; thus:

The importance attached to conviction is due to the underlying principle that bail should be granted only
where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is
removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried
and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and
the burden is upon the accused to show error in the conviction. From another point of view it may be
properly argued that the probability of ultimate punishment is so enhanced by the conviction that the
accused is much more likely to attempt to escape if liberated on bail than before conviction.xxx20

Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the RTC, and due to
the serious amount of fraud involved, sentenced to imprisonment for twenty years --the maximum penalty for estafa
by false pretenses or fraudulent acts allowed by the Revised Penal Code. Although it cannot be controverted that
the Court of Appeals, despite the foregoing considerations and the possibility of flight still wielded its discretion to
grant petitioner bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual
basis. Guided by the penalty imposed by the lower court and the weight of the evidence against petitioner, we
believe that the amount of P200,000.00 is more reasonable.
Petitioner also contests the condition imposed by the Court of Appeals that he secure "a certification/guaranty from
the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident
therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court",
claiming that the same violates his liberty of abode and travel.

Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines
unless expressly permitted by the court which issued the order.21 In fact, the petition submits that "the hold-
departure order against petitioner is already sufficient guarantee that he will not escape. Thus, to require him to
inform the court every time he changed his residence is already unnecessary."22

The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights.
Section 6, Article III of the 1987 Constitution states:

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 order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the
above provision.23 The condition imposed by the Court of Appeals is simply consistent with the nature and function
of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires
his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from
changing abode; he is merely required to inform the court in case he does so.

WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner's bail pending appeal is reduced from
P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court of Appeals, dated October 6, 1999
and November 25, 1999, respectively, are AFFIRMED. No pronouncement as to costs.

SO ORDERED. 1âw phi1.nêt

Melo, Vitug, Panganiban, and Sandova/-Gutierrez, JJ. , concur.

CASE DIGEST: SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),[*] JOANNE ROSE
SACE LIM, JOHN ARVIN NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK LEO DELOS
REYES, AND CLARISSA JOYCE VILLEGAS, MINOR, FOR HERSELF AND AS REPRESENTED
BY HER FATHER, JULIAN VILLEGAS, JR., PETITIONERS, V. QUEZON CITY, AS
REPRESENTED BY MAYOR HERBERT BAUTISTA, CITY OF MANILA, AS REPRESENTED BY
MAYOR JOSEPH ESTRADA, AND NAVOTAS CITY, AS REPRESENTED BY MAYOR JOHN REY
TIANGCO, RESPONDENTS. [G.R. No. 225442, August 08, 2017]
This petition assails the constitutionality of the curfew ordinances issued by the local governments of Quezon
City, Manila, and Navotas.
FACTS: Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for
minors, several local governments in Metro Manila started to strictly implement their curfew ordinances on
minors through police operations which were publicly known as part of "Oplan Rody." [3]
Petitioners,[9] spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK)- an association of
young adults and minors that aims to forward a free and just society, in particular the protection of the rights
and welfare of the youth and minors[10] - filed this present petition, arguing that the Curfew Ordinances are
unconstitutional because they: (a) result in arbitrary and discriminatory enforcement, and thus, fall under the
void for vagueness doctrine; (b) suffer from overbreadth by proscribing or impairing legitimate activities of
minors during curfew hours; (c) deprive minors of the right to liberty and the right to travel without
substantive due process; and (d) deprive parents of their natural and primary right in rearing the youth without
substantive due process.[11] In addition, petitioners assert that the Manila Ordinance contravenes RA 9344, as
amended by RA 10630.[12]

More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and discriminatory
enforcement as there are no clear provisions or detailed standards on how law enforcers should apprehend and
properly determine the age of the alleged curfew violators.[13] They further argue that the law enforcer's
apprehension depends only on his physical assessment, and, thus, subjective and based only on the law
enforcer's visual assessment of the alleged curfew violator.[14]

While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities exempted
from the operation of the imposed curfews, i.e., exemption of working students or students with evening class,
they contend that the lists of exemptions do not cover the range and breadth of legitimate activities or reasons
as to why minors would be out at night, and, hence, proscribe or impair the legitimate activities of minors
during curfew hours.[15]

Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive minors of the
right to liberty and the right to travel without substantive due process; [16] and (b) fail to pass the strict scrutiny
test, for not being narrowly tailored and for employing means that bear no reasonable relation to their
purpose.[17] They argue that the prohibition of minors on streets during curfew hours will not per se protect and
promote the social and moral welfare of children of the community.[18]

Furthermore, petitioners claim that the Manila Ordinance, particularly Section 4[19] thereof, contravenes
Section 57-A[20] of RA 9344, as amended, given that the cited curfew provision imposes on minors the penalties
of imprisonment, reprimand, and admonition. They contend that the imposition of penalties contravenes RA
9344's express command that no penalty shall be imposed on minors for curfew violations. [21]

Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the parents'
prerogative to impose them in the exercise of their natural and primary right in the rearing of the youth, and
that even if a compelling interest exists, less restrictive means are available to achieve the same. In this regard,
they suggest massive street lighting programs, installation of CCTVs (closed-circuit televisions) in public
streets, and regular visible patrols by law enforcers as other viable means of protecting children and preventing
crimes at night. They further opine that the government can impose more reasonable sanctions, i.e., mandatory
parental counseling and education seminars informing the parents of the reasons behind the curfew, and that
imprisonment is too harsh a penalty for parents who allowed their children to be out during curfew hours. [22]

ISSUE: The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances
are unconstitutional.

HELD: The petition is partly granted. WHEREFORE, the petition is PARTLY GRANTED. The Court
hereby declares Ordinance No. 8046, issued by the local government of the City of Manila, and Pambayang
Ordinansa Blg. No. 99-02, as amended by Pambayang Ordinansa Blg. 2002-13 issued by the local
government of Navotas City, UNCONSTITUTIONAL and, thus, NULL and VOID; while Ordinance No. SP-
2301, Series of 2014, issued by the local government of the Quezon City is declared CONSTITUTIONAL and,
thus, VALID in accordance with this Decision.

Void for Vagueness. The assailed pieces of ordinance are NOT void for being vague.
"A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to
the Constitution in two (2) respects: (1) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle."[48]

In this case, petitioners' invocation of the void for vagueness doctrine is improper, considering that they do not
properly identify any provision in any of the Curfew Ordinances, which, because of its vague terminology, fails
to provide fair warning and notice to the public of what is prohibited or required so that one may act
accordingly.[49] The void for vagueness doctrine is premised on due process considerations, which
are absent from this particular claim.

Essentially, petitioners only bewail the lack of enforcement parameters to guide the local authorities in the
proper apprehension of suspected curfew offenders. They do not assert any confusion as to what
conduct the subject ordinances prohibit or not prohibit but only point to the ordinances' lack of
enforcement guidelines. The mechanisms related to the implementation of the Curfew Ordinances are,
however, matters of policy that are best left for the political branches of government to resolve. Verily, the
objective of curbing unbridled enforcement is not the sole consideration in a void for vagueness analysis;
rather, petitioners must show that this perceived danger of unbridled enforcement stems from an ambiguous
provision in the law that allows enforcement authorities to second-guess if a particular conduct is prohibited or
not prohibited.

The pieces of ordinance have sufficient standards as provided by special law.

Petitioners are mistaken in claiming that there are no sufficient standards to identify suspected curfew
violators. While it is true that the Curfew Ordinances do not explicitly state these parameters, law enforcement
agents are still bound to follow the prescribed measures found in statutory law when implementing ordinances.
Specifically, RA 9344, as amended, provides:
Section 7. Determination of Age. - x x x The age of a child may be determined from the child's birth
certificate, baptismal certificate or any other pertinent documents. In the absence of these documents,
age may be based on information from the child himself/herself, testimonies of other persons, the
physical appearance of the child and other relevant evidence. (Emphases supplied)

This provision should be read in conjunction with the Curfew Ordinances because RA 10630 (the law that
amended RA 9344) repeals all ordinances inconsistent with statutory law.[53] Pursuant to Section 57-A of RA
9344, as amended by RA 10630,[54] minors caught in violation of curfew ordinances are children at
risk and, therefore, covered by its provisions.[55] It is a long-standing principle that "[c]onformity with law
is one of the essential requisites for the validity of a municipal ordinance."[56] Hence, by necessary
implication, ordinances should be read and implemented in conjunction with related statutory law.

Right of Parents to Rear their ChildrenPetitioners are NOT CORRECT that the Curfew Ordinances are
unconstitutional because they deprive parents of their natural and primary right in the rearing of the youth
without substantive due process. In this regard, they assert that this right includes the right to determine
whether minors will be required to go home at a certain time or will be allowed to stay late outdoors. Given that
the right to impose curfews is primarily with parents and not with the State, the latter's interest in imposing
curfews cannot logically be compelling.[57]

Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of parents in the
rearing of their children:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government. (Emphasis and underscoring supplied.)

As may be gleaned from this provision, the rearing of children (i.e., referred to as the "youth") for civic
efficiency and the development of their moral character are characterized not only as parental rights, but also
as parental duties. This means that parents are not only given the privilege of exercising their authority over
their children; they are equally obliged to exercise this authority conscientiously. The duty aspect of this
provision is a reflection of the State's independent interest to ensure that the youth would eventually grow into
free, independent, and well-developed citizens of this nation. For indeed, it is during childhood that minors are
prepared for additional obligations to society. "[T]he duty to prepare the child for these [obligations]
must be read to include the inculcation of moral standards, religious beliefs, and elements of
good citizenship."[58] "This affirmative process of teaching, guiding, and inspiring by precept and example is
essential to the growth of young people into mature, socially responsible citizens." [59]

While parents have the primary role in child-rearing, it should be stressed that "when actions concerning
the child have a relation to the public welfare or the well-being of the child, the [S]tate may act
to promote these legitimate interests."[66] Thus, "[i]n cases in which harm to the physical or
mental health of the child or to public safety, peace, order, or welfare is demonstrated, these
legitimate state interests may override the parents' qualified right to control the upbringing of
their children."[67]

[W]here minors are involved, the State acts as parens patriae. To it is cast the duty of
protecting the rights of persons or individual who because of age or incapacity are in an
unfavorable position, vis-a vis other parties. Unable as they are to take due care of what concerns them,
they have the political community to look after their welfare. This obligation the state must live up to. It cannot
be recreant to such a trust. As was set forth in an opinion of the United States Supreme Court: "This
prerogative of parens patriae is inherent in the supreme power of every State, x x
x."[69] (Emphases and underscoring supplied)

The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of promoting
their children's well-being.

At this juncture, it should be emphasized that the Curfew Ordinances apply only when the minors are not -
whether actually or constructively (as will be later discussed) - accompanied by their parents. This serves as an
explicit recognition of the State's deference to the primary nature of parental authority and the importance of
parents' role in child-rearing. Parents are effectively given unfettered authority over their children's conduct
during curfew hours when they are able to supervise them. Thus, in all actuality, the only aspect of
parenting that the Curfew Ordinances affects is the parents' prerogative to allow minors to
remain in public places without parental accompaniment during the curfew hours.[73]

Finally, it may be well to point out that the Curfew Ordinances positively influence children to spend more time
at home. Consequently, this situation provides parents with better opportunities to take a more active role in
their children's upbringing.

Petitioners are partially correct that the Curfew Ordinances violate the people's right to travel.

The right to travel is recognized and guaranteed as a fundamental right[88] under Section 6, Article III of the
1987 Constitution, to wit:
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. (Emphases and
underscoring supplied)

Jurisprudence provides that this right refers to the right to move freely from the Philippines to other countries
or within the Philippines.[89] It is a right embraced within the general concept of liberty.[90] Liberty - a birthright
of every person - includes the power of locomotion[91] and the right of citizens to be free to use their faculties in
lawful ways and to live and work where they desire or where they can best pursue the ends of life. [92]

The right to travel is essential as it enables individuals to access and exercise their other rights, such as the
rights to education, free expression, assembly, association, and religion.[93]

Nevertheless, grave and overriding considerations of public interest justify restrictions even if
made against fundamental rights. Specifically on the freedom to move from one place to another,
jurisprudence provides that this right is not absolute.[95] As the 1987 Constitution itself reads, the State[96] may
impose limitations on the exercise of this right, provided that they: (1) serve the interest of national
security, public safety, or public health; and (2) are provided by law.[97]

The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and prevention of
juvenile crime, inarguably serve the interest of public safety. The restriction on the minor's movement and
activities within the confines of their residences and their immediate vicinity during the curfew period is
perceived to reduce the probability of the minor becoming victims of or getting involved in crimes and criminal
activities. As to the second requirement, i.e., that the limitation "be provided by law," our legal system is replete
with laws emphasizing the State's duty to afford special protection to children, i.e., RA 7610,[98] as amended, RA
9775,[99] RA 9262,[100] RA 9851, [101] RA 9344,[102] RA 10364,[103] RA 9211,[104] RA 8980,[105] RA 9288,[106] and
Presidential Decree (PD) 603,[107] as amended.
As explicitly worded, city councils are authorized to enact curfew ordinances (as what respondents have done
in this case) and enforce the same through their local officials. In other words, PD 603 provides sufficient
statutory basis - as required by the Constitution - to restrict the minors' exercise of the right to travel.

The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally
permissible. In this relation, this Court recognizes that minors do possess and enjoy constitutional
rights,[108] but the exercise of these rights is not co-extensive as those of adults.[109] They are always
subject to the authority or custody of another, such as their parent/s and/or guardian/s, and the
State.[110] Thus, the State may impose limitations on the minors' exercise of rights even though these limitations
do not generally apply to adults.

For these reasons, the State is justified in setting restrictions on the minors' exercise of their travel rights,
provided, they are singled out on reasonable grounds.

Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the reasonableness of
classifications.[122] The strict scrutiny test applies when a classification either (i) interferes with the exercise
of fundamental rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens suspect
classes.[123]The intermediate scrutiny test applies when a classification does not involve suspect classes or
fundamental rights, but requires heightened scrutiny, such as in classifications based on gender and
legitimacy.[124] Lastly, the rational basis test applies to all other subjects not covered by the first two tests.[125]

Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our
Constitution, the strict scrutiny test[126] is the applicable test.[127] At this juncture, it should be
emphasized that minors enjoy the same constitutional rights as adults; the fact that the State
has broader authority over minors than over adults does not trigger the application of a lower
level of scrutiny.[128]

The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances of
minors vis-a-vis the State's duty as parens patriae to protect and preserve their well-being with the compelling
State interests justifying the assailed government act. Under the strict scrutiny test, a legislative classification
that interferes with the exercise of a fundamental right or operates to the disadvantage of a suspect class is
presumed unconstitutional.[131] Thus, the government has the burden of proving that the
classification (i) is necessary to achieve a compelling State interest, and (ii) is the least
restrictive means to protect such interest or the means chosen is narrowly tailored to
accomplish the interest.[132]
In this case, respondents have sufficiently established that the ultimate objective of the Curfew Ordinances is to
keep unsupervised minors during the late hours of night time off of public areas, so as to reduce - if not totally
eliminate - their exposure to potential harm, and to insulate them against criminal pressure and influences
which may even include themselves as denoted in the "whereas clauses" of the Quezon City Ordinance, the
State, in imposing nocturnal curfews on minors.

Based on these findings, their city councils found it necessary to enact curfew ordinances pursuant to their
police power under the general welfare clause.[140] In this light, the Court thus finds that the local
governments have not only conveyed but, in fact, attempted to substantiate legitimate concerns
on public welfare, especially with respect to minors. As such, a compelling State interest exists for the
enactment and enforcement of the Curfew Ordinances.

With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to determine if the
restrictions set forth in the Curfew Ordinances are narrowly tailored or provide the least restrictive means to
address the cited compelling State interest - the second requirement of the strict scrutiny test.

Least Restrictive Means/ Narrowly Drawn

The second requirement of the strict scrutiny test stems from the fundamental premise that citizens should not
be hampered from pursuing legitimate activities in the exercise of their constitutional rights. While rights may
be restricted, the restrictions must be minimal or only to the extent necessary to achieve the purpose or to
address the State's compelling interest. When it is possible for governmental regulations to be more
narrowly drawn to avoid conflicts with constitutional rights, then they must be so narrowly
drawn.[141]

Although treated differently from adults, the foregoing standard applies to regulations on minors as they are
still accorded the freedom to participate in any legitimate activity, whether it be social, religious, or
civic.[142] Thus, in the present case, each of the ordinances must be narrowly tailored as to ensure minimal
constraint not only on the minors' right to travel but also on their other constitutional rights.[143]

After a thorough evaluation of the ordinances' respective provisions, this Court finds that only
the Quezon City Ordinance meets the above-discussed requirement, while the Manila and
Navotas Ordinances do not.

The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew. For its part, the Navotas
Ordinance provides more exceptions. It also exempts minors from the curfew during these specific occasions:
Christmas eve, Christmas day, etc.[147]
This Court observes that these two ordinances are not narrowly drawn in that their exceptions are
inadequate and therefore, run the risk of overly restricting the minors' fundamental
freedoms. To be fair, both ordinances protect the rights to education, to gainful employment, and to travel at
night from school or work.[148] However, even with those safeguards, the Navotas Ordinance and, to a greater
extent, the Manila Ordinance still do not account for the reasonable exercise of the minors' rights of
association, free exercise of religion, rights to peaceably assemble, and of free expression,
among others.

The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon protected
liberties. The Navotas Ordinance is apparently more protective of constitutional rights than the Manila
Ordinance; nonetheless, it still provides insufficient safeguards as discussed in detail below:

First, although it allows minors to engage in school or church activities, it hinders them from engaging in
legitimate non-school or non-church activities in the streets or going to and from such activities; thus, their
freedom of association is effectively curtailed. It bears stressing that participation in legitimate activities of
organizations, other than school or church, also contributes to the minors' social, emotional, and intellectual
development, yet, such participation is not exempted under the Navotas Ordinance.

Second, although the Navotas Ordinance does not impose the curfew during Christmas Eve and Christmas
day, it effectively prohibits minors from attending traditional religious activities (such as simbang gabi) at
night without accompanying adults, similar to the scenario depicted in Mosier.[149] This legitimate activity done
pursuant to the minors' right to freely exercise their religion is therefore effectively curtailed.

Third, the Navotas Ordinance does not accommodate avenues for minors to engage in political rallies or
attend city council meetings to voice out their concerns in line with their right to peaceably assemble and to
free expression.

Certainly, minors are allowed under the Navotas Ordinance to engage in these activities outside curfew hours,
but the Court finds no reason to prohibit them from participating in these legitimate activities during curfew
hours. Such proscription does not advance the State's compelling interest to protect minors from the dangers of
the streets at night, such as becoming prey or instruments of criminal activity. These legitimate activities are
merely hindered without any reasonable relation to the State's interest; hence, the Navotas Ordinance is not
narrowly drawn. More so, the Manila Ordinance, with its limited exceptions, is also not narrowly drawn.

In sum, the Manila and Navotas Ordinances should be completely stricken down since their exceptions, which
are essentially determinative of the scope and breadth of the curfew regulations, are inadequate to ensure
protection of the above-mentioned fundamental rights. While some provisions may be valid, the same are
merely ancillary thereto; as such, they cannot subsist independently despite the presence [150] of any separability
clause.[151]

The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it
sufficiently safeguards the minors' constitutional rights. It provides the following exceptions:
Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be covered by the
provisions of this ordinance;

(a) Those accompanied by their parents or guardian;

Those on their way to or from a party, graduation ceremony, religious mass, and/or other extra-curricular
activities of their school or organization wherein their attendance are required or otherwise indispensable, or
(b)
when such minors are out and unable to go home early due to circumstances beyond their control as verified
by the proper authorities concerned; and
Those attending to, or in experience of, an emergency situation such as conflagration, earthquake, hospitalization,
(c)
road accident, law enforcers encounter, and similar incidents[;]
When the minor is engaged in an authorized employment activity, or going to or returning home from the same place
(d)
of employment activity without any detour or stop;
(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult in no violation of this Ordinance;
(f) When the minor is involved in an emergency;
When the minor is out of his/her residence attending an official school, religious, recreational, educational,
social, communitv or other similar private activity sponsored by the city, barangay, school, or other similar
(g)
private civic/religious organization/group (recognized by the community) that supervises the activity or when
the minor is going to or returning home from such activity, without any detour or stop; and
When the minor can present papers certifying that he/she is a student and was dismissed from his/her class/es in the
(h)
evening or that he/she is a working student.[152] (Emphases and underscoring supplied)
As compared to the first two (2) ordinances, the list of exceptions under the Quezon City Ordinance is more
narrowly drawn to sufficiently protect the minors' rights of association, free exercise of religion,
travel, to peaceably assemble, and of free expression. Thus, with these numerous exceptions, the Quezon City
Ordinance, in truth, only prohibits unsupervised activities that hardly contribute to the well-
being of minors who publicly loaf and loiter within the locality at a time where danger
is perceivably more prominent.

To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run lawful errands
or engage in legitimate activities during the night, notwithstanding curfew hours. As astutely observed by
Senior Associate Justice Antonio T. Carpio and Associate Justice Marvic M.V.F. Leonen during the
deliberations on this case, parental permission is implicitly considered as an exception found in Section 4, item
(a) of the Quezon City Ordinance, i.e., "[t]hose accompanied by their parents or guardian", as
accompaniment should be understood not only in its actual but also in its constructive sense. As
the Court sees it, this should be the reasonable construction of this exception so as to reconcile the juvenile
curfew measure with the basic premise that State interference is not superior but only complementary to
parental supervision. After all, as the Constitution itself prescribes, the parents' right to rear their children is
not only natural but primary.

Ultimately, it is important to highlight that this Court, in passing judgment on these ordinances, is dealing with
the welfare of minors who are presumed by law to be incapable of giving proper consent due to their
incapability to fully understand the import and consequences of their actions.

Under our legal system's own recognition of a minor's inherent lack of full rational capacity, and balancing the
same against the State's compelling interest to promote juvenile safety and prevent juvenile crime, this Court
finds that the curfew imposed under the Quezon City Ordinance is reasonably justified with its narrowly drawn
exceptions and hence, constitutional. Needless to say, these exceptions are in no way limited or restricted, as
the State, in accordance with the lawful exercise of its police power, is not precluded from crafting, adding, or
modifying exceptions in similar laws/ordinances for as long as the regulation, overall, passes the parameters of
scrutiny as applied in this case.

Penal Provisions of the Manila Ordinance

Going back to the Manila Ordinance, this Court deems it proper - as it was raised- to further discuss the validity
of its penal provisions in relation to RA 9344, as amended.

To recount, the Quezon City Ordinance, while penalizing the parentis or guardian under Section 8
thereof,[154] does not impose any penalty on the minors. For its part, the Navotas Ordinance requires the minor,
along with his or her parent/s or guardian/s, to render social civic duty and community service either in lieu of
- should the parent/s or guardian/s of the minor be unable to pay the fine imposed - or in addition to the fine
imposed therein.[155] Meanwhile, the Manila Ordinance imposed various sanctions to the minor
based on the age and frequency of violations.

Thus springs the question of whether local governments could validly impose on minors these sanctions - i.e.,
(a) community service; (b) reprimand and admonition; (c) fine; and (d) imprisonment. Pertinently,
Sections 57 and 57-A of RA 9344, as amended, prohibit the imposition of penalties on minors
for status offenses such as curfew violations.

To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of minors,
when the similar conduct of adults are not considered as an offense or penalized (i.e., status offenses). Instead,
what they prohibit is the imposition of penalties on minors for violations of these regulations. Consequently,
the enactment of curfew ordinances on minors, without penalizing them for violations thereof, is not violative
of Section 57-A.
The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor in
violation of the regulations are without legal consequences. Section 57-A thereof empowers local governments
to adopt appropriate intervention programs, such as community-based programs[161] recognized under
Section 54[162] of the same law.

In this regard, requiring the minor to perform community service is a valid form of intervention
program that a local government (such as Navotas City in this case) could appropriately adopt in an
ordinance to promote the welfare of minors.

The sanction of admonition imposed by the City of Manila is likewise consistent with Sections
57 and 57-A of RA 9344 as it is merely a formal way of giving warnings and expressing disapproval to the
minor's misdemeanor. Admonition is generally defined as a "gentle or friendly reproof' or "counsel or warning
against fault or oversight."[163] Notably, the Revised Rules on Administrative Cases in the Civil Service
(RRACCS) and our jurisprudence in administrative cases explicitly declare that "a warning or admonition shall
not be considered a penalty."[166]

In other words, the disciplinary measures of community-based programs and admonition are clearly not
penalties - as they are not punitive in nature - and are generally less intrusive on the rights and conduct of the
minor. To be clear, their objectives are to formally inform and educate the minor, and for the latter to
understand, what actions must be avoided so as to aid him in his future conduct.
A different conclusion, however, is reached with regard to reprimand and fines and/or imprisonment imposed
by the City of Manila on the minor. Reprimand is a formal and public pronouncement made to
denounce the error or violation committed, to sharply criticize and rebuke the erring
individual, and to sternly warn the erring individual including the public against repeating or
committing the same, and thus, may unwittingly subject the erring individual or violator to unwarranted
censure or sharp disapproval from others. In fact, the RRACCS and our jurisprudence explicitly indicate
that reprimand is a penalty,[170] hence, prohibited by Section 57-A of RA 9344, as amended.

Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as provided in
our various criminal and administrative laws and jurisprudence - that Section 57-A of RA 9344, as amended,
evidently prohibits.

As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states that "[n]o
penalty shall be imposed on children for x x x violations [of] juvenile status offenses]." Thus, for
imposing the sanctions of reprimand, fine, and/or imprisonment on minors for curfew violations, portions of
Section 4 of the Manila Ordinance directly and irreconcilably conflict with the clear language of Section 57-A of
RA 9344, as amended, and hence, invalid. On the other hand, the impositions of community service programs
and admonition on the minors are allowed as they do not constitute penalties.
CONCLUSION

In sum, while the Court finds that all three Curfew Ordinances have passed the first prong of the strict scrutiny
test - that is, that the State has sufficiently shown a compelling interest to promote juvenile safety and
prevent juvenile crime in the concerned localities, only the Quezon City Ordinance has passed the second prong
of the strict scrutiny test, as it is the only issuance out of the three which provides for the least restrictive
means to achieve this interest. In particular, the Quezon City Ordinance provides for adequate exceptions
that enable minors to freely exercise their fundamental rights during the prescribed curfew hours, and
therefore, narrowly drawn to achieve the State's purpose. Section 4 (a) of the said ordinance, i.e., "[t]hose
accompanied by their parents or guardian", has also been construed to include parental permission as a
constructive form of accompaniment and hence, an allowable exception to the curfew measure; the manner of
enforcement, however, is left to the discretion of the local government unit.

In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and void, while the
Quezon City Ordinance is declared as constitutional and thus, valid in accordance with this Decision.

For another, the Court has determined that the Manila Ordinance's penal provisions imposing reprimand and
fines/imprisonment on minors conflict with Section 57-A of RA 9344, as amended. Hence, following the rule
that ordinances should always conform with the law, these provisions must be struck down as invalid.
G.R. No. 197930

EFRAIM C. GENUINO, ERWIN F. GENUINO and SHERYL G. SEE, Petitioners

vs
HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice, and RICARDO V. PARAS III, in his capacity
as Chief State Counsel, CRISTINO L. NAGUIAT, JR. and the BUREAU OF IMMIGRATION, Respondents

DECISION

REYES, JR., J.:

These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining
Orders (TRO) and/or Writs of Preliminary Injunction Under Rule 65 of the Rules of Court assail the constitutionality
of Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise known as the "Consolidated Rules and
Regulations Governing Issuance and Implementation of Hold Departure Orders, Watchlist Orders and Allow
Departure Orders," on the ground that it infringes on the constitutional right to travel.

Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside the following orders
issued by the former DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ Circular No. 41, thus:

1. Watchlist Order No. ASM-11-237 dated August 9, 2011;1

2. Amended Watchlist Order No. 2011-422 dated September 6, 2011;2 and

3. Watchlist Order No. 2011-573 dated October 27, 2011.3

In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the invalidation of the
Order4 dated November 8, 2011, denying her application for an Allow-Departure Order (ADO).

Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino (Erwin) and Sheryl
Genuino-See (Genuinos) pray for the nullification of the Hold-Departure Order5 (HDO) No. 2011-64 dated July 22,
2011 issued against them.

Antecedent Facts

On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17, prescribing rules and
regulations governing the issuance of HDOs. The said issuance was intended to restrain the indiscriminate issuance
of HDOs which impinge on the people's right to travel.

On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing rules and
regulations governing the issuance and implementation of watchlist orders. In particular, it provides for the power of
the DOJ Secretary to issue a Watchlist Order (WLO) against persons with criminal cases pending preliminary
investigation or petition for review before the DOJ. Further, it states that the DOJ Secretary may issue an ADO to a
person subject of a WLO who intends to leave the country for some exceptional reasons.6 Even with the
promulgation of DOJ Circular No. 18, however, DOJ Circular No. 17 remained the governing rule on the issuance of
HDOs by the DOJ.

On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ Circular No. 41,
consolidating DOJ Circular Nos. 17 and 18, which will govern the issuance and implementation of HDOs, WLOS,
and ADOs. Section 10 of DOJ Circular No. 41 expressly repealed all rules and regulations contained in DOJ Circular
Nos. 17 and 18, as well as all instructions, issuances or orders or parts thereof which are inconsistent with its
provisions.

After the expiration of GMA's term as President of the Republic of the Philippines and her subsequent election as
Pampanga representative, criminal complaints were filed against her before the DOJ, particularly:

(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al., for plunder;7
(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder, malversation
and/or illegal use of OWWA funds, graft and corruption, violation of the Omnibus Election Code (OEC), violation of
the Code of Conduct and Ethical Standards for Public Officials, and qualified theft;8 and

(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder, malversation,
and/or illegal use of public funds, graft and corruption, violation of the OEC, violation of the Code of Conduct and
Ethical Standards for Public Officials and qualified theft.9

In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422 dated August 9, 2011 against
GMA pursuant to her authority under DOJ Circular No. 41. She also ordered for the inclusion of GMA's name in the
Bureau of Immigration (BI) watchlist.10 Thereafter, the Bl issued WLO No. ASM-11-237,11 implementing De Lima's
order.

On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA to reflect her full name
"Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.12 WLO No. 2011-422, as amended, is valid for a period of 60
days, or until November 5, 2011, unless sooner terminated or otherwise extended. This was lifted in due course by
De Lima, in an Order dated November 14, 2011, following the expiration of its validity.13

Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and Violation of the OEC were filed
against GMA and her husband, Jose Miguel Arroyo (Miguel Arroyo), among others, with the DOJ-Commission on
Elections (DOJ-COMELEC) Joint Investigation Committee on 2004 and 2007 Election Fraud,14 specifically:

(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs. Gloria Macapagal-Arroyo
et al., (for the Province of Maguindanao), for electoral sabotage/violation of the OEC and COMELEC Rules and
Regulations;15 and

(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria Macapagal-Arroyo, et al., for
electoral sabotage.16

Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573 against GMA and Miguel Arroyo
on October 27, 2011, with a validity period of 60 days, or until December 26, 2011, unless sooner terminated or
otherwise extended.17

In three separate letters dated October 20, 2011, October 21, 2011, and October 24, 2011, GMA requested for the
issuance of an ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may be able to seek medical
attention from medical specialists abroad for her hypoparathyroidism and metabolic bone mineral disorder. She
mentioned six different countries where she intends to undergo consultations and treatments: United States of
America, Germany, Singapore, Italy, Spain and Austria.18 She likewise undertook to return to the Philippines, once
her treatment abroad is completed, and participate in the proceedings before the DOJ.19 In support of her application
for ADO, she submitted the following documents, viz.:

1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to the Secretary of Foreign
Affairs, of her Travel Authority;

2. First Endorsement dated October 19, 201120 of Artemio A. Adasa, OIC Secretary General of the House of
Representatives, to the Secretary of Foreign Affairs, amending her Travel Authority to include travel to Singapore,
Spain and Italy;

3. Affidavit dated October 21, 2011,21 stating the purpose of travel to Singapore, Germany and Austria;

4. Medical Abstract dated October 22, 2011,22 signed by Dr. Roberto Mirasol (Dr. Mirasol);

5. Medical Abstract dated October 24, 2011,23 signed by Dr. Mario Ver;

6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the schedule of consultations
with doctors in Singapore.
To determine whether GMA's condition necessitates medical attention abroad, the Medical Abstract prepared by Dr.
Mirasol was referred to then Secretary of the Department of Health, Dr. Enrique Ona (Dr. Ona) for his expert opinion
as the chief government physician. On October 28, 2011, Dr. Ona, accompanied by then Chairperson of the Civil
Service Commission, Francisco Duque, visited GMA at her residence in La Vista Subdivision, Quezon City. Also
present at the time of the visit were GMA's attending doctors who explained her medical condition and the surgical
operations conducted on her. After the visit, Dr. Ona noted that "Mrs. Arroyo is recuperating reasonably well after
having undergone a series of three major operations."24

On November 8, 2011, before the resolution of her application for ADO, GMA filed the present Petition for Certiorari
and Prohibition under Rule 65 of the Rules of Court with Prayer for the Issuance of a TRO and/or Writ of Preliminary
Injunction, docketed as G.R. No. 199034, to annul and set aside DOJ Circular No. 41 and WLOs issued against her
for allegedly being unconstitutional.25

A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari and Prohibition under the same rule,
with Prayer for the Issuance of a TRO and/or a Writ of Preliminary Injunction, likewise assailing the constitutionality
of DOJ Circular No. 41 and WLO No. 2011-573. His petition was docketed as G.R. No. 199046.26

Also, on November 8, 2011, De Lima issued an Order,27 denying GMA's application for an ADO, based on the
following grounds:

First, there appears to be discrepancy on the medical condition of the applicant as stated in her affidavit, on the
other hand, and the medical abstract of the physicians as well as her physician's statements to Secretary Ona
during the latter's October 28, 2011 visit to the Applicant, on the other.

xxxx

Second, based on the medical condition of Secretary Ona, there appears to be no urgent and immediate medical
emergency situation for Applicant to seek medical treatment abroad. x x x.

xxxx

Third, Applicant lists several countries as her destination, some of which were not for purposes of medical
consultation, but for attending conferences. XX X.

xxxx

Fourth, while the Applicant's undertaking is to return to the Philippines upon the completion of her medical
treatment, this means that her return will always depend on said treatment, which, based on her presentation of her
condition, could last indefinitely. x x x.

xxxx

Fifth, X X X X. Applicant has chosen for her destination five (5) countries, namely, Singapore, Germany, Austria,
Spain and Italy, with which the Philippines has no existing extradition treaty. X X X.

ΧΧΧΧ

IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO)
of Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for lack of merit.

SO ORDERED. 28

On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III, Chief State Counsel of the
DOJ and Ricardo A. David, Jr., who was then BI Commissioner, (respondents) filed a Very Urgent Manifestation and
Motion29 in G.R. Nos. 199034 and 199046, praying (1) that they be given a reasonable time to comment on the
petitions and the applications for a TRO and/or writ of preliminary injunction before any action on the same is
undertaken by the Court; (2) that the applications for TRO and/or writ of preliminary injunction be denied for lack of
merit, and; (3) that the petitions be set for oral arguments after the filing of comments thereto.30

On November 13, 2011, GMA filed a Supplemental Petition31 which included a prayer to annul and set aside the
Order dated November 8, 2011, denying her application for ADO. On the following day, GMA filed her
Comment/Opposition32 to the respondents' Very Urgent Manifestation and Motion dated November 9, 2011, in G.R.
No. 199034.

On November 15, 2011, the Court issued a Resolution,33 ordering the consolidation of G.R. Nos. 199034 and
199046, and requiring the respondents to file their comment thereto not later than November 18, 2011. The Court
likewise resolved to issue a TRO in the consolidated petitions, enjoining the respondents from enforcing or
implementing DOJ Circular No. 41 and WLO Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September
6, 2011, and 2011-573 dated October 27, 2011, subject to the following conditions, to wit:

(i) The petitioners shall post a cash bond of Two Million Pesos (₱2,000,000.00) payable to this Court within five (5)
days from notice hereof. Failure to post the bond within the aforesaid period will result in the automatic lifting of the
temporary restraining order;

(ii) The petitioners shall appoint a legal representative common to both of them who will receive subpoena, orders
and other legal processes on their behalf during their absence. The petitioners shall submit the name of the legal
representative, also within five (5) days from notice hereof; and

(iii) If there is a Philippine embassy or consulate in the place where they will be traveling, the petitioners shall inform
said embassy or consulate by personal appearance or by phone of their whereabouts at all times;34

On the very day of the issuance of the TRO, the petitioners tendered their compliance35 with the conditions set forth
in the Resolution dated November 15, 2011 of the Court and submitted the following: (1) a copy of Official Receipt
No. 0030227-SC-EP, showing the payment of the required cash bond of Two Million Pesos (₱2,000,000.00);36 (2)
certification from the Fiscal and Management and Budget Office of the Supreme Court, showing that the cash bond
is already on file with the office;37 (3) special powers of attorney executed by the petitioners, appointing their
respective lawyers as their legal representatives; 38 and (4) an undertaking to report to the nearest consular office in
the countries where they will travel.39

At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino International Airport (NAIA),
with an aide-de-camp and a private nurse, to take their flights to Singapore. However, the BI officials at NAIA
refused to process their travel documents which ultimately resulted to them not being able to join their flights.40

On November 17, 2011, GMA, through counsel, filed an Urgent Motion41 for Respondents to Cease and Desist from
Preventing Petitioner GMA from Leaving the Country. She strongly emphasized that the TRO issued by the Court
was immediately executory and that openly defying the same is tantamount to gross disobedience and resistance to
a lawful order of the Court."42 Not long after, Miguel Arroyo followed through with an Urgent Manifestation,43 adopting
and repleading all the allegations in GMA's motion.

On November 16, 2011, the respondents filed a Consolidated Urgent Motion for Reconsideration and/or to Lift
TRO,44 praying that the Court reconsider and set aside the TRO issued in the consolidated petitions until they are
duly heard on the merits. In support thereof, they argue that the requisites for the issuance of a TRO and writ of
preliminary injunction were not established by the petitioners. To begin with, the petitioners failed to present a clear
and mistakable right which needs to be protected by the issuance of a TRO. While the petitioners anchor their right
in esse on the right to travel under Section 6, Article III of the 1987 Constitution, the said right is not absolute. One of
the limitations on the right to travel is DOJ Circular No. 41, which was issued pursuant to the rule-making powers of
the DOJ in order to keep individuals under preliminary investigation within the jurisdiction of the Philippine criminal
justice system. With the presumptive constitutionality of DOJ Circular No. 41, the petitioners cannot claim that they
have a clear and unmistakable right to leave the country as they are the very subject of the mentioned
issuance.45 Moreover, the issuance of a TRO will effectively render any judgment on the consolidated petitions moot
and academic. No amount of judgment can recompense the irreparable injury that the state is bound to suffer if the
petitioners are permitted to leave the Philippine jurisdiction.46
On November 18, 2011, the Court issued a Resolution,47 or requiring De Lima to show cause why she should not be
disciplinarily dealt with or held in contempt of court for failure to comply with the TRO. She was likewise ordered to
immediately comply with the TRO by allowing the petitioners to leave the country. At the same time, the Court
denied the Consolidated Urgent Motion for Reconsideration and/or to Lift TRO dated November 16, 2011 filed by
the Office of the Solicitor General.48

On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary Investigation
Committee, filed an information for the crime of electoral sabotage under Section 43(b) of Republic Act (R.A.) No.
9369 against GMA, among others, before the Regional Trial Court (RTC) of Pasay City, which was docketed as R-
PSY-11-04432-CR49 and raffled to Branch 112. A warrant of arrest for GMA was forthwith issued.

Following the formal filing of an Information in court against GMA, the respondents filed an Urgent Manifestation
with Motion to Lift TRO.50 They argue that the filing of the information for electoral sabotage against GMA is a
supervening event which warrants the lifting of the TRO issued by this Court. They asseverate that the filing of the
case vests the trial court the jurisdiction to rule on the disposition of the case. The issue therefore on the validity of
the assailed WLOs should properly be raised and threshed out before the RTC of Pasay City where the criminal
case against GMA is pending, to the exclusion of all other courts.51

Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the complaint for violation of OEC and
electoral sabotage against Miguel Arroyo, among others, which stood as the basis for the issuance of WLO No.
2011-573. Conformably, the DOJ issued an Order dated November 21, 2011,52 lifting WLO No. 2011-573 against
Miguel Arroyo and ordering for the removal of his name in the BI watchlist.

Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on November 22, 2011,
despite requests from the petitioners' counsels for an earlier date. Upon the conclusion of the oral arguments on
December 1, 2011, the parties were required to submit their respective memoranda.53

Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 201154 was issued against Genuinos, among
others, after criminal complaints for Malversation, as defined under Article 217 of the Revised Penal Code (RPC),
and Violation of Sections 3(e), (g), (h) and (i) of R.A. No. 3019 were filed against them by the Philippine Amusement
and Gaming Corporation (PAGCOR), through its Director, Eugene Manalastas, with the DOJ on June 14, 2011, for
the supposed diversion of funds for the film "Baler." This was followed by the filing of another complaint for Plunder
under R.A. No. 7080, Malversation under Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019, against
the same petitioners, as well as members and incorporators of BIDA Production, Inc. Wildformat, Inc. and Pencil
First, Inc., for allegedly siphoning off PAGCOR funds into the coffers of BIDA entities. Another complaint was
thereafter filed against Efraim and Erwin was filed before the Office of the Ombudsman for violation of R.A. No.
3019 for allegedly releasing PAGCOR funds intended for the Philippine Sports Commission directly to the Philippine
Amateur Swimming Association, Inc.55 In a Letter56 dated July 29, 2011 addressed to Chief State Counsel Ricardo
Paras, the Genuinos, through counsel, requested that the HDO against them be lifted. This plea was however
denied in a Letter57 dated August 1, 2011 which prompted the institution of the present petition by the Genuinos. In a
Resolution58 dated April 21, 2015, the Court consolidated the said petition with G.R. Nos. 199034 and 199046.

The Court, after going through the respective memoranda of the parties and their pleadings, sums up the issues for
consideration as follows:

WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;

II

WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and

III

WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF CONTEMPT OF
COURT.
 Ruling of the Court

The Court may exercise its power of

judicial review despite the filing of
information for electoral sabotage
against GMA

It is the respondents' contention that the present petitions should be dismissed for lack of a justiciable controversy.
They argue that the instant petitions had been rendered moot and academic by (1) the expiration of the WLO No.
422 dated August 9, 2011, as amended by the Order dated September 6, 2011;59 (2) the filing of an information for
electoral sabotage against GMA,60 and; (3) the lifting of the WLO No. 2011-573 dated November 14, 2011 against
Miguel Arroyo and the subsequent deletion of his name from the BI watchlist after the COMELEC en banc
dismissed the case for electoral sabotage against him.61

The power of judicial review is articulated in Section 1, Article VIII of the 1987 Constitution which reads:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.62

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the
act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.63

Except for the first requisite, there is no question with respect to the existence of the three (3) other requisites.
Petitioners have the locus standi to initiate the petition as they claimed to have been unlawfully subjected to restraint
on their right to travel owing to the issuance of WLOs against them by authority of DOJ Circular No. 41. Also, they
have contested the constitutionality of the questioned issuances at the most opportune time.

The respondents, however, claim that the instant petitions have become moot and academic since there is no
longer any actual case or controversy to resolve following the subsequent filing of an information for election
sabotage against GMA on November 18, 2011 and the lifting of WLO No. 2011-573 against Miguel Arroyo and the
deletion of his name from the BI watchlist after the dismissal of the complaint for electoral sabotage against him.

To be clear, "an actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of
judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a
real and substantial controversy admitting of specific relief."64 When the issues have been resolved or when the
circumstances from which the legal controversy arose no longer exist, the case is rendered moot and academic. "A
moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or value."65

The Court believes that the supervening events following the filing of the instant petitions, while may have seemed
to moot the instant petitions, will not preclude it from ruling on the constitutional issues raised by the petitioners. The
Court, after assessing the necessity and the invaluable gain that the members of the bar, as well as the public may
realize from the academic discussion of the constitutional issues raised in the petition, resolves to put to rest the
lingering constitutional questions that abound the assailed issuance. This is not a novel occurrence as the Court, in
a number of occasions, took up cases up to its conclusion notwithstanding claim of mootness.

In Evelio Javier vs. The Commission on Elections,66 emphatically stated, thus:

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The
citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are
times when we cannot grant the latter because the issue has been settled and decision is no longer possible
according to the law. But there are also times when although the dispute has disappeared, as in this case, it
nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged
right, though gone, but also for the guidance of and as a restraint upon the future.67

In Prof. David vs. Pres. Macapagal-Arroyo,68 the Court proceeded in ruling on the constitutionality of Presidential
Proclamation (PP) No. 1017 in which GMA declared a state of national emergency, and General Order No. 5 (G.O.
No. 5), which ordered the members of the Armed Forces of the Philippines and the Philippine National Police to
carry all necessary actions to suppress acts of terrorism and lawless violence, notwithstanding the issuance of PP
1021 lifting both issuances. The Court articulated, thus:

The Court holds that President Arroyo's issuance of PP 1021 did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify
these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative.

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;
second, the exceptional character of the situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review.69 (Citations omitted and emphasis supplied)

In the instant case, there are exceptional circumstances that warrant the Court's exercise of its power of judicial
review. The petitioners impute the respondents of violating their constitutional right to travel through the enforcement
of DOJ Circular No. 41. They claim that the issuance unnecessarily places a restraint on the right to travel even in
the absence of the grounds provided in the Constitution.

There is also no question that the instant petitions involved a matter of public interest as the petitioners are not
alone in this predicament and there can be several more in the future who may be similarly situated. It is not
farfetched that a similar challenge to the constitutionality of DOJ Circular No. 41 will recur considering the thousands
of names listed in the watch list of the DOJ, who may brave to question the supposed illegality of the issuance.
Thus, it is in the interest of the public, as well as for the education of the members of the bench and the bar, that this
Court takes up the instant petitions and resolves the question on the constitutionality of DOJ Circular No. 41.

The Constitution is inviolable and

supreme of all laws

We begin by emphasizing that the Constitution is the fundamental, paramount and supreme law of the nation; it is
deemed written in every statute and contract.70 If a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect.

The Constitution is a testament to the living democracy in this jurisdiction. It contains the compendium of the
guaranteed rights of individuals, as well as the powers granted to and restrictions imposed on government officials
and instrumentalities. It is that lone unifying code, an inviolable authority that demands utmost respect and
obedience.

The more precious gifts of democracy that the Constitution affords us are enumerated in the Bill of Rights contained
in Article III. In particular, Section 1 thereof provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.
The guaranty of liberty does not, however, imply unbridled license for an individual to do whatever he pleases, for
each is given an equal right to enjoy his liberties, with no one superior over another. Hence, the enjoyment of one's
liberties must not infringe on anyone else's equal entitlement.

Surely, the Bill of Rights operates as a protective cloak under which the individual may assert his liberties.
Nonetheless, "the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties.
Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will. It is subject to
the far more overriding demands and requirements of the greater number."71

It is therefore reasonable that in order to achieve communal peace and public welfare, calculated limitations in the
exercise of individual freedoms are necessary. Thus, in many significant provisions, the Constitution itself has
provided for exceptions and restrictions to balance the free exercise of rights with the equally important ends of
promoting common good, public order and public safety.

The state's exercise of police power is also well-recognized in this jurisdiction as an acceptable limitation to the
exercise of individual rights. In Philippine Association of Service Exporters, Inc. vs. Drilon,[[72]] it was defined as the
inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and
welfare of society. It is rooted in the conception that men in organizing the state and imposing upon its government
limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace,
safety, good order, and welfare.73

Still, it must be underscored that in a constitutional government like ours, liberty is the rule and restraint the
exception.74 Thus, restrictions in the exercise of fundamental liberties are heavily guarded against so that they may
not unreasonably interfere with the free exercise of constitutional guarantees.

The right to travel and its limitations

The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process of law.75 It is part
and parcel of the guarantee of freedom of movement that the Constitution affords its citizen. Pertinently, Section 6,
Article III of the Constitution provides:

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

Liberty under the foregoing clause includes the right to choose one's residence, to leave it whenever he pleases and
to travel wherever he wills.76 Thus, in Zacarias Villavicencio vs. Justo Lucban,77 the Court held illegal the action of the
Mayor of Manila in expelling women who were known prostitutes and sending them to Davao in order to eradicate
vices and immoral activities proliferated by the said subjects. It was held that regardless of the mayor's laudable
intentions, no person may compel another to change his residence without being expressly authorized by law or
regulation.

It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory and inherent
limitations regulating the right to travel. Section 6 itself provides that the right to travel may be impaired only in the
interest of national security, public safety or public health, as may be provided by law. In Silverio vs. Court of
Appeals,78 the Court elucidated, thus:

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be
impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed
with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public
safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973
text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in
the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when
there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an
interested party.79 (Emphasis ours)
Clearly, under the provision, there are only three considerations that may permit a restriction on the right to travel:
national security, public safety or public health. As a further requirement, there must be an explicit provision of
statutory law or the Rules of Court80 providing for the impairment. The requirement for a legislative enactment was
purposely added to prevent inordinate restraints on the person's right to travel by administrative officials who may be
tempted to wield authority under the guise of national security, public safety or public health. This is in keeping with
the principle that ours is a government of laws and not of men and also with the canon that provisions of law limiting
the enjoyment of liberty should be construed against the government and in favor of the individual.81

The necessity of a law before a curtailment in the freedom of movement may be permitted is apparent in the
deliberations of the members of the Constitutional Commission. In particular, Fr. Joaquin Bernas, in his sponsorship
speech, stated thus:

On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase "and changing the
same" is taken from the 1935 version; that is, changing the abode. The addition of the phrase WITHIN THE LIMITS
PRESCRIBED BY LAW ensures that, whether the rights be impaired on order of a court or without the order of a
court, the impairment must be in accordance with the prescriptions of law; that is, it is not left to the discretion of any
public officer.82

It is well to remember that under the 1973 Constitution, the right to travel is compounded with the liberty of abode in
Section 5 thereof, which reads:

Section 5, 1973 Constitution: The liberty of abode and of travel shall not, be impaired except upon lawful order of the
court, or when necessary in the interest of national security, public safety, or public health. (Emphasis ours)

The provision, however, proved inadequate to afford protection to ordinary citizens who were subjected to
"hamletting" under the Marcos regime.83 Realizing the loophole in the provision, the members of the Constitutional
Commission agreed that a safeguard must be incorporated in the provision in order to avoid this unwanted
consequence. Thus, the Commission meticulously framed the subject provision in such a manner that the right
cannot be subjected to the whims of any administrative officer. In addressing the loophole, they found that requiring
the authority of a law most viable in preventing unnecessary intrusion in the freedom of movement, viz.:

MR. NOLLEDO. X X X X

My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that the liberty of abode shall not
be impaired except upon lawful order of the court or - underscoring the word "or" - when necessary in the interest of
national security, public safety or public health. So, in the first part, there is the word "court"; in the second part, it
seems that the question rises as to who determines whether it is in the interest of national security, public safety, or
public health. May it be determined merely by administrative authorities?

FR. BERNAS. The understanding we have of this is that, yes, it may be determined by administrative authorities
provided that they act, according to line 9, within the limits prescribed by law. For instance when this thing came
up; what was in mind were passport Officers. If they want to deny a passport on the first instance, do they have to
go to court? The position is, they may deny a passport provided that the denial is based on the limits prescribed by
law. The phrase "within the limits prescribed by law" is something which is added here. That did not exist in the
old provision.84

During the discussions, however, the Commission realized the necessity of separating the concept of liberty of
abode and the right to travel in order to avoid untoward results. Ultimately, distinct safeguards were laid down which
will protect the liberty of abode and the right to travel separately, viz.:

MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11. Iminumungkahi kong alisin
iyong mga salitang nagmumula sa "or" upang maiwasan natin ang walang pakundangang paglabag sa liberty of
abode sa ngalan ng national security at pagsasagawa ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis
ito, maisasagawa lamang ang "hamletting" upon lawful order of the court. X X X.

xxxx
MR. RODRIGO. Aside from that, this includes the right to travel?

FR. BERNAS. Yes.

MR. RODRIGO. But another right is involved here and that is to travel?

SUSPENSION OF SESSION

FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty of abode and or
changing the same from the right to travel, because they may necessitate different provisions.

THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.

xxxx

RESUMPTION OF SESSION

xxxx

THE PRESIDING OFFICER (Mr.Bengzon). The session is resumed. Commisioner Bernas is recognized

FR. BERNAS. The proposal is amended to read: "The liberty of abode and of changing the same within the limits
prescribed by law, shall not be impaired except upon lawful order of the court. NEITHER SHALL THE RIGHT TO
TRAVEL BE IMPAIRED EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC
HEALTH AS MAYBE PROVIDED BY LAW.

THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as amended. Is there
any objection? (Silence) The Chair hears none; the amendment, as amended, is approved.85

It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the court and, on the
one hand, the right to travel may only be impaired by a law that concerns national security, public safety or public
health. Therefore, when the exigencies of times call for a limitation on the right to travel, the Congress must respond
to the need by explicitly providing for the restriction in a law. This is in deference to the primacy of the right to travel,
being a constitutionally-protected right and not simply a statutory right, that it can only be curtailed by a legislative
enactment.

Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon,86 the Court upheld the validity
of the Department Order No. 1, Series of 1988, issued by the Department of Labor and Employment, which
temporarily suspended the deployment of domestic and household workers abroad. The measure was taken in
response to escalating number of female workers abroad who were subjected to exploitative working conditions,
with some even reported physical and personal abuse. The Court held that Department Order No. 1 is a valid
implementation of the Labor Code, particularly, the policy to "afford protection to labor." Public safety considerations
justified the restraint on the right to travel.

Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court Administrator (OCA) vs.
Wilma Salvacion P. Heusdens,87 the Court enumerated the statutes which specifically provide for the impairment of
the right to travel, viz.:

Some of these statutory limitations [to the right to travel] are the following:

1] The Human Security Act of 2010 or (R.A.] No. 9372. The law restricts the right to travel of an individual charged
with the crime of terrorism even though such person is out on bail.

2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or his
authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino
citizen.
3] The "Anti- Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions thereof, the [BI], in
order to manage migration and curb trafficking in persons, issued Memorandum Order Radir No. 2011-011, allowing
its Travel Control and Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful purpose
of travel, including possible victims of human trafficking" from our ports.

4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A. No. 10022. In
enforcement of said law, the Philippine Overseas Employment Administration (POEA) may refuse to issue
deployment permit to a specific country that effectively prevents our migrant workers to enter such country.

5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement of an individual
against whom the protection order is intended.

6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption Board may
issue rules restrictive of an adoptee's right to travel "to protect the Filipino child from abuse, exploitation, trafficking
and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the
child."88

In any case, when there is a dilemma between an individual claiming the exercise of a constitutional right vis-à-vis
the state's assertion of authority to restrict the same, any doubt must, at all times, be resolved in favor of the free
exercise of the right, absent any explicit provision of law to the contrary.

The issuance of DOJ Circular No. 41

has no legal basis

Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which the DOJ
believed its power to restrain the right to travel emanates. To begin with, there is no law particularly providing for the
authority of the secretary of justice to curtail the exercise of the right to travel, in the interest of national security,
public safety or public health. As it is, the only ground of the former DOJ Secretary in restraining the petitioners, at
that time, was the pendency of the preliminary investigation of the Joint DOJ-COMELEC Preliminary Investigation
Committee on the complaint for electoral sabotage against them.89

To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the scrutiny and
concurrence of lawmakers, and submitted to the President for approval. It is a mere administrative issuance
apparently designed to carry out the provisions of an enabling law which the former DOJ Secretary believed to be
Executive Order (E.O.) No. 292, otherwise known as the "Administrative Code of 1987." She opined that DOJ
Circular No. 41 was validly issued pursuant to the agency's rulemaking powers provided in Sections 1 and 3, Book
IV, Title III, Chapter 1 of E.O. No. 292 and Section 50, Chapter 11, Book IV of the mentioned Code.

Indeed, administrative agencies possess quasi-legislative or rulemaking powers, among others. It is the power to
make rules and regulations which results in delegated legislation that is within the confines of the granting statute
and the doctrine of non-delegability and separability of powers."90 In the exercise of this power, the rules and
regulations that administrative agencies promulgate should be within the scope of the statutory authority granted by
the legislature to the administrative agency. It is required that the regulation be germane to the objects and
purposes of the law, and be not in contradiction to, but in conformity with, the standards prescribed by law. They
must conform to and be consistent with the provisions of the enabling statute in order for such rule or regulation to
be valid. 91

It is, however, important to stress that before there can even be a valid administrative issuance, there must first be a
showing that the delegation of legislative power is itself valid. It is valid only if there is a law that (a) is complete in
itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a
standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the
performance of his functions.92

A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose that they do
not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively restricts the right to travel
through the issuance of WLOs and HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292 reads:
Section 1. Declaration of Policy. It is the declared policy of the State to provide the government with a principal law
agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in
accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution
of offenders and administration of the correctional system; implement the laws on the admission and stay of aliens,
citizenship, land titling system, and settlement of land problems involving small landowners and member of
indigenous cultural minorities, and provide free legal services to indigent members of the society.

xxxx

Section 3. Powers and Functions.- to accomplish its mandate, the Department shall have the following powers and
functions:

(1) Act as principal law agency of the government and as legal counsel and representative thereof, whenever so
required;

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction
system;

xxxx

(6) Provide immigration and naturalization regulatory services and implement the laws governing citizenship
and the admission and stay of aliens;

(7) Provide legal services to the national government and its functionaries, including government-owned and
controlled corporations and their subsidiaries;

(8) Such other functions as may be provided by law. (Emphasis supplied)

A plain reading of the foregoing provisions shows that they are mere general provisions designed to lay down the
purposes of the enactment and the broad enumeration of the powers and functions of the DOJ. In no way can they
be interpreted as a grant of power to curtail a fundamental right as the language of the provision itself does not lend
to that stretched construction. To be specific, Section 1 is simply a declaration of policy, the essence of the law,
which provides for the statement of the guiding principle, the purpose and the necessity for the enactment. The
declaration of policy is most useful in statutory construction as an aid in the interpretation of the meaning of the
substantive provisions of the law. It is preliminary to the substantive portions of the law and certainly not the part in
which the more significant and particular mandates are contained. The suggestion of the former DOJ Secretary that
the basis of the issuance of DOJ Circular No. 41 is contained in the declaration of policy of E.O. No. 292 not only
defeats logic but also the basic style of drafting a decent piece of legislation because it supposes that the authors of
the law included the operative and substantive provisions in the declaration of policy when its objective is merely to
introduce and highlight the purpose of the law.

Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of the substantive portions of
the act. Such provisions are available for clarification of ambiguous substantive portions of the act, but may not be
used to create ambiguity in other substantive provisions."93

In the same way, Section 3 does not authorize the DOJ to issue WLOS and HDOs to restrict the constitutional right
to travel. There is even no mention of the exigencies stated in the Constitution that will justify the impairment. The
provision simply grants the DOJ the power to investigate the commission of crimes and prosecute offenders, which
are basically the functions of the agency. However, it does not carry with it the power to indiscriminately devise all
means it deems proper in performing its functions without regard to constitutionally-protected rights. The curtailment
of a fundamental right, which is what DOJ Circular No. 41 does, cannot be read into the mentioned provision of the
law. Any impairment or restriction in the exercise of a constitutional right must be clear, categorical and
unambiguous. For the rule is that:

Constitutional and statutory provisions control with respect to what rules and regulations may be promulgated by an
administrative body, as well as with respect to what fields are subject to regulation by it. It may not make rules and
regulations which are inconsistent with the provisions of the Constitution or a statute, particularly the statute it is
administering or which created it, or which are in derogation of, or defeat, the purpose of a statute. 94

The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which simply provides for the types
of issuances that administrative agencies, in general, may issue. It does not speak of any authority or power but
rather a mere clarification on the nature of the issuances that may be issued by a secretary or head of agency. The
innocuous provision reads as follows:

Section 50. General Classification of Issuances. The administrative issuances of Secretaries and heads of bureaus,
offices and agencies shall be in the form of circulars or orders.

(1) Circulars shall refer to issuance prescribing policies, rules and regulations, and procedures promulgated
pursuant to law, applicable to individuals and organizations outside the Government and designed to supplement
provisions of the law or to provide means for carrying them out, including information relating thereto; and

(2) Orders shall refer to issuances directed to particular offices, officials, or employees, concerning specific matters
including assignments, detail and transfer of personnel, for observance or compliance by all concerned. (Emphasis
Ours)

In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the memorandum of the former DOJ
Secretary cannot justify the restriction on the right to travel in DOJ Circular No. 41. The memorandum particularly
made reference to Subsections 3, 4 and 9 which state:

Section 7. Powers and Functions of the Secretary. - The Secretary shall:

(1) Advise the President in issuing executive orders, regulations, proclamations and other issuances, the
promulgation of which is expressly vested by law in the President relative to matters under the jurisdiction of the
Department;

(2) Establish the policies and standards for the operation of the Department pursuant to the approved programs of
governments:

(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions,
plans, programs and projects;

(4) Promulgate administrative issuances necessary for the efficient administration of the offices under the
Secretary and for proper execution of the laws relative thereto. These issuances shall not prescribe
penalties for their violation, except when expressly authorized by law;

xxxx

(9) Perform such other functions as may be provided by law. (Emphasis Ours)

It is indisputable that the secretaries of government agencies have the power to promulgate rules and regulations
that will aid in the performance of their functions. This is adjunct to the power of administrative agencies to execute
laws and does not require the authority of a law. This is, however, different from the delegated legislative power to
promulgate rules of government agencies.

The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly AASIS) et al. vs. Hon. Purisima
et l.95 is illuminating:

The inherent power of the Executive to adopt rules and regulations to execute or implement the law is different from
the delegated legislative power to prescribe rules. The inherent power of the Executive to adopt rules to execute the
law does not require any legislative standards for its exercise while the delegated legislative power requires
sufficient legislative standards for its exercise.

xxxx
Whether the rule-making power by the Executive is a delegated legislative power or an inherent Executive power
depends on the nature of the rule-making power involved. If the rule-making power is inherently a legislative power,
such as the power to fix tariff rates, the rule-making power of the Executive is a delegated legislative power. In such
event, the delegated power can be exercised only if sufficient standards are prescribed in the law delegating the
power.

If the rules are issued by the President in implementation or execution of self-executory constitutional powers vested
in the President, the rule-making power of the President is not a delegated legislative power. X X X. The rule is that
the President can execute the law without any delegation of power from the legislature. Otherwise, the President
becomes a mere figure-head and not the sole Executive of the Government.96

The questioned circular does not come under the inherent power of the executive department to adopt rules and
regulations as clearly the issuance of HDO and WLO is not the DOJ's business. As such, it is a compulsory
requirement that there be an existing law, complete and sufficient in itself, conferring the expressed authority to the
concerned agency to promulgate rules. On its own, the DOJ cannot make rules, its authority being confined to
execution of laws. This is the import of the terms "when expressly provided by law" or "as may be provided by law"
stated in Sections 7(4) and 7(9), Chapter 2, Title III, Book IV of E.O. 292 . The DOJ is confined to filling in the gaps
and the necessary details in carrying into effect the law as enacted.97 Without a clear mandate of an existing law, an
administrative issuance is ultra vires.

Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must derive its life.
Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not pass the completeness test
and sufficient standard test. The DOJ miserably failed to establish the existence of the enabling law that will justify
the issuance of the questioned circular.

That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the question. The
purpose, no matter how commendable, will not obliterate the lack of authority of the DOJ to issue the said issuance.
Surely, the DOJ must have the best intentions in promulgating DOJ Circular No. 41, but the end will not justify the
means. To sacrifice individual liberties because of a perceived good is disastrous to democracy. In Association of
Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform,98 the Court emphasized:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end
does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts.
There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a
few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person
invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the
nation who would deny him that right.99

The DOJ would however insist that the resulting infringement of liberty is merely incidental, together with the
consequent inconvenience, hardship or loss to the person being subjected to the restriction and that the ultimate
objective is to preserve the investigative powers of the DOJ and public order.100 It posits that the issuance ensures
the presence within the country of the respondents during the preliminary investigation.101 Be that as it may, no
objective will ever suffice to legitimize desecration of a fundamental right. To relegate the intrusion as negligible in
view of the supposed gains is to undermine the inviolable nature of the protection that the Constitution affords.

Indeed, the DOJ has the power to investigate the commission of crimes and prosecute offenders. Its zealousness in
pursuing its mandate is laudable but more admirable when tempered by fairness and justice. It must constantly be
reminded that in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute,
and when weighed against each other, the scales of justice tilt towards the former. 102 Thus, in Allado vs.
Diokno,103 the Court declared, viz.:

The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the
proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is
essential for its self- preservation, nay, its very existence. But this does not confer a license for pointless assaults on
its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard
the rights of its citizens under the Constitution. 104
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to allow the petitioners, who
are under preliminary investigation, to exercise an untrammelled right to travel, especially when the risk of flight is
distinctly high will surely impede the efficient and effective operation of the justice system. The absence of the
petitioners, it asseverates, would mean that the farthest criminal proceeding they could go would be the filing of the
criminal information since they cannot be arraigned in absentia.105

The predicament of the DOJ is understandable yet untenable for relying on grounds other what is permitted within
the confines of its own power and the nature of preliminary investigation itself. The Court, in Paderanga vs.
Drilon,106 made a clarification on the nature of a preliminary investigation, thus:

A preliminary investigation is x x x an inquiry or proceeding for the purpose of determining whether there is sufficient
ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed
and that the respondent is probably guilty thereof, and should be held for trial. X X X A preliminary investigation is
not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such
evidence only as may engender a well grounded belief that an offense has been committed and that the accused is
probably guilty thereof.107

It bears emphasizing that the conduct of a preliminary investigation is an implement of due process which
essentially benefits the accused as it accords an opportunity for the presentation of his side with regard to the
accusation.108 The accused may, however, opt to waive his presence in the preliminary investigation. In any case,
whether the accused responds to a subpoena, the investigating prosecutor shall resolve the complaint within 10
days after the filing of the same.

The point is that in the conduct of a preliminary investigation, the presence of the accused is not necessary for the
prosecutor to discharge his investigatory duties. If the accused chooses to waive his presence or fails to submit
countervailing evidence, that is his own lookout. Ultimately, he shall be bound by the determination of the prosecutor
on the presence of probable cause and he cannot claim denial of due process.

The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular No. 41 on the
ground that it is necessary to ensure presence and attendance in the preliminary investigation of the complaints.
There is also no authority of law granting it the power to compel the attendance of the subjects of a preliminary
investigation, pursuant to its investigatory powers under E.O. No. 292. Its investigatory power is simply inquisitorial
and, unfortunately, not broad enough to embrace the imposition of restraint on the liberty of movement.

That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an administrative
issuance to keep the individual within the Philippine jurisdiction so that he may not be able to evade criminal
prosecution and consequent liability. It is an arrogation of power it does not have; it is a usurpation of function that
properly belongs to the legislature.

Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the DOJ of
empowering itself under the pretext of dire exigency or urgent necessity. This action runs afoul the separation of
powers between the three branches of the government and cannot be upheld. Even the Supreme Court, in the
exercise of its power to promulgate rules is limited in that the same shall not diminish, increase, or modify
substantive rights.109 This should have cautioned the DOJ, which is only one of the many agencies of the executive
branch, to be more scrutinizing in its actions especially when they affect substantive rights, like the right to travel.

The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the right to travel were found
reasonable, i.e. New York v. O'Neill,110 Kwong vs. Presidential Commission on Good Government111 and PASEI.

It should be clear at this point that the DOJ cannot rely on PASEI to support its position for the reasons stated earlier
in this disquisition. In the same manner, Kant Kwong is not an appropriate authority since the Court never ruled on
the constitutionality of the authority of the PCGG to issue HDOs in the said case. On the contrary, there was an
implied recognition of the validity of the PCGG's Rules and Regulations as the petitioners therein even referred to its
provisions to challenge the PCGG's refusal to lift the HDOs issued against them despite the lapse of the period of its
effectivity. The petitioners never raised any issue as to the constitutionality of Section 2 of the PCGG Rules and
Regulations but only questioned the agency's nonobservance of the rules particularly on the lifting of HDOs. This is
strikingly different from the instant case where the main issue is the constitutionality of the authority of the DOJ
Secretary to issue HDOs under DOJ Circular No. 41.
Similarly, the pronouncement is New York does not lend support to the respondents' case. In the said case, the
respondent therein questioned the constitutionality of a Florida statute entitled "Uniform Law to Secure the
Attendance of Witnesses from Within or Without a State in Criminal Proceedings," under which authority a judge of
the Court of General Sessions, New York County requested the Circuit Court of Dade County, Florida, where he
was at that time, that he be given into the custody of New York authorities and be transported to New York to testify
in a grand jury proceeding. The US Supreme Court upheld the constitutionality of the law, ruling that every citizen,
when properly summoned, has the obligation to give testimony and the same will not amount to violation of the
freedom to travel but, at most, a mere temporary interference. The clear deviation of the instant case from New
York is that in the latter case there is a law specifically enacted to require the attendance of the respondent to court
proceedings to give his testimony, whenever it is needed. Also, after the respondent fulfils his obligation to give
testimony, he is absolutely free to return in the state where he was found or to his state of residence, at the expense
of the requesting state. In contrast, DOJ Circular No. 41 does not have an enabling law where it could have derived
its authority to interfere with the exercise of the right to travel. Further, the respondent is subjected to continuing
restraint in his right to travel as he is not allowed to go until he is given, if he will ever be given, an ADO by the
secretary of justice.

The DOJ cannot issue DOJ Circular

No. 41 under the guise of police
power

The DOJ's reliance on the police power of the state cannot also be countenanced. Police power pertains to the
"state authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare."112 "It may be said to be that inherent and plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety, and welfare of society."113 Verily, the exercise of this power is primarily lodged
with the legislature but may be wielded by the President and administrative boards, as well as the lawmaking bodies
on all municipal levels, including the barangay, by virtue of a valid delegation of power. 114

It bears noting, however, that police power may only be validly exercised if (a) the interests of the public generally,
as distinguished from those of a particular class, require the interference of the State, and (b) the means employed
are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive
upon individuals.115

On its own, the DOJ cannot wield police power since the authority pertains to Congress. Even if it claims to be
exercising the same as the alter ego of the President, it must first establish the presence of a definite legislative
enactment evidencing the delegation of power from its principal. This, the DOJ failed to do. There is likewise no
showing that the curtailment of the right to travel imposed by DOJ Circular No. 41 was reasonably necessary in
order for it to perform its investigatory duties.

In any case, the exercise of police power, to be valid, must be reasonable and not repugnant to the Constitution.116 It
must never be utilized to espouse actions that violate the Constitution. Any act, however noble its intentions, is void
if it violates the Constitution.117 In the clear language of the Constitution, it is only in the interest of national security,
public safety and public health that the right to travel may be impaired. None one of the mentioned circumstances
was invoked by the DOJ as its premise for the promulgation of DOJ Circular No. 41.

DOJ Circular No. 41 transcends

constitutional limitations

Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious infirmities that render it invalid.
The apparent vagueness of the circular as to the distinction between a HDO and WLO is violative of the due
process clause. An act that is vague "violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid and leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle."118 Here, the distinction is significant as it will
inform the respondents of the grounds, effects and the measures they may take to contest the issuance against
them. Verily, there must be a standard by which a HDO or WLO may be issued, particularly against those whose
cases are still under preliminary investigation, since at that stage there is yet no criminal information against them
which could have warranted the restraint.
Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it emanates from the DOJ's
assumption of powers that is not actually conferred to it. In one of the whereas clauses of the issuance, it was
stated, thus:

WHEREAS, while several Supreme Court circulars, issued through the Office of the Court Administrator, clearly
state that "[HDO) shall be issued only in criminal cases within the exclusive jurisdiction of the [RTCs)," said circulars
are, however, silent with respect to cases falling within the jurisdiction of courts below the RTC as well as those
pending determination by government prosecution offices;

Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was the supposed inadequacy
of the issuances of this Court pertaining to HDOs, the more pertinent of which is SC Circular No. 3997.119 It is the
DOJ's impression that with the silence of the circular with regard to the issuance of HDOs in cases falling within the
jurisdiction of the MTC and those still pending investigation, it can take the initiative in filling in the deficiency. It is
doubtful, however, that the DOJ Secretary may undertake such action since the issuance of HDOs is an exercise of
this Court's inherent power "to preserve and to maintain the effectiveness of its jurisdiction over the case and the
person of the accused."120 It is an exercise of judicial power which belongs to the Court alone, and which the DOJ,
even as the principal law agency of the government, does not have the authority to wield.

Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No. 41 is not without
good reasons. Circular No. 39-97 was specifically issued to avoid indiscriminate issuance of HDOs resulting to the
1aw p++i1

inconvenience of the parties affected as the same could amount to an infringement on the right and liberty of an
individual to travel. Contrary to the understanding of the DOJ, the Court intentionally held that the issuance of HDOs
shall pertain only to criminal cases within the exclusive jurisdiction of the RTC, to the exclusion of criminal cases
falling within the jurisdiction of the MTC and all other cases. The intention was made clear with the use of the term
"only." The reason lies in seeking equilibrium between the state's interest over the prosecution of the case
considering the gravity of the offense involved and the individual's exercise of his right to travel. Thus, the circular
permits the intrusion on the right to travel only when the criminal case filed against the individual is within the
exclusive jurisdiction of the RTC, or those that pertains to more serious crimes or offenses that are punishable with
imprisonment of more than six years. The exclusion of criminal cases within the jurisdiction of the MTC is justified by
the fact that they pertain to less serious offenses which is not commensurate with the curtailment of a fundamental
right. Much less is the reason to impose restraint on the right to travel of respondents of criminal cases still pending
investigation since at that stage no information has yet been filed in court against them. It is for these reasons that
Circular No. 3997 mandated that HDO may only be issued in criminal cases filed with the RTC and withheld the
same power from the MTC.

Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming powers which have been
withheld from the lower courts in Circular No. 39-97. In the questioned circular, the DOJ Secretary may issue HDO
against the accused in criminal cases within the jurisdiction of the MTC121 and against defendants, respondents and
witnesses in labor or administrative cases,122 no matter how unwilling they may be. He may also issue WLO against
accused in criminal cases pending before the RTC,123 therefore making himself in equal footing with the RTC, which
is authorized by law to issue HDO in the same instance. The DOJ Secretary may likewise issue WLO against
respondents in criminal cases pending preliminary investigation, petition for review or motion for reconsideration
before the DOJ.124 More striking is the authority of the DOJ Secretary to issue a HDO or WLO motu proprio, even in
the absence of the grounds stated in the issuance if he deems necessary in the interest of national security, public
safety or public health.125

It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too obtrusive as it remains
effective even after the lapse of its validity period as long as the DOJ Secretary does not approve the lifting or
cancellation of the same. Thus, the respondent continually suffers the restraint in his mobility as he awaits a
favorable indorsement of the government agency that requested for the issuance of the HDO or WLO and the
affirmation of the DOJ Secretary even as the HDO or WLO against him had become functus officio with its
expiration.

It did not also escape the attention of the Court that the DOJ Secretary has authorized himself to permit a person
subject of HDO or WLO to travel through the issuance of an ADO upon showing of "exceptional reasons" to grant
the same. The grant, however, is entirely dependent on the sole discretion of the DOJ Secretary based on his
assessment of the grounds stated in the application.
The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its assumption that the
DOJ Secretary's determination of the necessity of the issuance of HDO or WLO can take the place of a law that
authorizes the restraint in the right to travel only in the interest of national security, public safety or public health. The
DOJ Secretary has recognized himself as the sole authority in the issuance and cancellation of HDO or WLO and in
the determination of the sufficiency of the grounds for an ADO. The consequence is that the exercise of the right to
travel of persons subject of preliminary investigation or criminal cases in court is indiscriminately subjected to the
discretion of the DOJ Secretary.

This is precisely the situation that the 1987 Constitution seeks to avoid for an executive officer to impose restriction
or exercise discretion that unreasonably impair an individual's right to travel-- thus, the addition of the phrase, "as
maybe provided by law" in Section 6, Article III thereof. In Silverio, the Court underscored that this phraseology in
the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when
there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an
interested party.126 The qualifying phrase is not a mere innocuous appendage. It secures the individual the absolute
and free exercise of his right to travel at all times unless the more paramount considerations of national security,
public safety and public health call for a temporary interference, but always under the authority of a law.

The subject WLOs and the restraint

on the right to travel.

In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the wordings thereof. For
better illustration, the said WLOs are hereby reproduced as follows:

WLO No. ASM-11-237127

(Watchlist)

In re: GLORIA M. MACAPAGAL-ARROYO

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

ORDER

On 09 August 2011, Hon. Leila M. De Lima, Secretary of the Department of Justice issued an order docketed as
Watchlist Order No. 2011-422 directing the Bureau of Immigration to include the name GLORIA M. MACAPAGAL-
ARROYO in the Bureau's Watchlist.

It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by the Department of Justice
in connection with the following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder

Macapagal-Arroyo

XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo
XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria
Macapagal-Arroyo Jocelyn
"Joc-Joc" Bolante, Ibarra
Poliquit et al.
Illegal use of OWWA Funds,
Graft and Corruption,
Violation of The Omnibus
Election Code, Violation of
the Code of Ethical Standards
for Public Officials, and
Qualified Theft
Plunder, Malversation and/or
Illegal use of Public Funds,
Graft and Corruption,
Violation of The Omnibus
 Election Code. Violation of
the Code of Ethical Standards
for Public Officials, and
Qualified Theft

Based on the foregoing and pursuant to Department of Justice Circular No. 41 (Consolidated Rules and Regulations
Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and Allow Departure
Orders) dated 25 May 2010, we order the inclusion of the name GLORIA M. MACAPAGAL-ARROYO in the
Watchlist.

This watchlist shall be valid for sixty (60) days unless sooner revoked or extended.

The Airport Operation Division and Immigration Regulation Division Chiefs shall implement this Order.

Notify the Computer Section.

SO ORDERED.

09 August 2011 (Emphasis ours)

Watchlist Order No. 2011-422128

In re: Issuance of Watchlist

Order against MA. GLORIA M.
MACAPAGAL-ARROYO

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

AMENDED ORDER

Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this Department in connection with
the following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria Plunder
Macapagal-Arroyo

XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo
Illegal use of OWWA Funds,
Graft and Corruption,
Violation of The Omnibus
Election Code, Violation of
the Code of Ethical Standards
for Public Officials, and
Qualified Theft

XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria Plunder, Malversation and/or

Macapagal-Arroyo Jocelyn
"Joc-Joc" Bolante, Ibarra
Poliquit et al.
Illegal use of Public Funds,
Graft and Corruption,
Violation of The Omnibus
Election Code. Violation of
the Code of Ethical Standards
 for Public Officials, and
Qualified Theft

Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010 Consolidated Rules and
Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and Allow
Departure Orders), the undersigned hereby motu proprio issues a Watchlist Order against Ma. Gloria M.
Macapagal-Arroyo.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist the name of Ma. Gloria M. Macapagal-Arroyo.

Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days from issuance unless sooner
terminated or extended.

SO ORDERED.

City of Manila, September 6, 2011. (Emphasis ours)

Watchlist Order (WLO) No. 2011- 573129

IN RE: Issuance of WLO against

BENJAMIN ABALOS, SR. et al.

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

ORDER

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

xxxx

12. MA. GLORIA M. MACAPAGAL-ARROYO Address: Room MB-2, House of Representatives Quezon City

xxxx

Ground for WLO Issuance: Pendency of the case, entitled "DOJ-COMELEC

Fact Finding Committee v. Benjamin Abalos Sr.,
et al.," for Electoral Sabotage/Omnibus Election
Code docketed as DOJ-COMELEC Case No.
001-2011

1. MA. GLORIA M. MACAPAGAL-ARROYO

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

2. JOSE MIGUEL TUASON ARROYO

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

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

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist, the names of the above-named persons.

This Order is valid for a period of sixty (60) days from the date of its issuance unless sooner terminated or otherwise
extended. 1âwphi1

SO ORDERED.

On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 pertinently states:

Hold Departure Order (HDO)

No. 2011- 64130

In re: Issuance of HDO against

EFRAIM C. GENUINO, ET AL.

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

ORDER

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

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F. GENUINO,
RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" F. KING, RENE C. FIGUEROA, ATTY, CARLOS R.
BAUTISTA, JR., EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND JOHNNY G. TAN.

Name: EFRAIM C. GENUINO

Nationality:
Last known address:
Ground for HDO Issuance:
Details of the Case:
Filipino
No. 42 Lapu Lapu Street,
Magallanes Village, Makati City
Malversation, Violation of the
Anti-Graft and Corrupt Practices
Act, Plunder
Plending before the National
Prosecution Service, Department
of Justice (NPS Docket No. XV-
INV-11F-00229 Pending before
the Office of the Ombudsman
(Case No. CPL-C-11-1297)
Pending before the National
Prosecution Service, Department
of Justice (I.S. No. XVI-INV-11G-
00248)
 Name: SHERYLL F. GENUINO-SEE

Nationality: Filipino
Last known address: No. 32-a Pasco Parkview, Makati
City

Ground for HDO Issuance: Malversation, Violation of the

Details of the case:
Anti-Graft and Corrupt Practices
Act, Plunder
Pending before the National
Prosecution Service, Department
of Justice (I.S. No. XVI-INV-11G-
00248)

Name: ERWIN F. GENUINO

Nationality:
Last known address:
Ground for HDO Issuance:
Details of the Case:
Filipino
No. 5 J.P. Rizal Extension,
COMEMBO, Makati City
Malversation, Violation of the
Anti-Graft and Corrupt Practices
Act, Plunder
Pending before the National
Prosecution Service, Department
of Justice (NPS Docket No. XV-
INV-11F-00229 Pending before
the National Prosecution Service,
Department of Justice (I.S. No.
XVI-INV-11G-00248)

xxxx

Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years unless sooner terminated.

SO ORDERED. (Emphasis ours)

On its face, the language of the foregoing issuances does not contain an explicit restraint on the right to travel. The
issuances seemed to be a mere directive from to the BI officials to include the named individuals in the watchlist of
the agency. Noticeably, however, all of the WLOs contained a common reference to DOJ Circular No. 41, where the
authority to issue the same apparently emanates, and from which the restriction on the right to travel can be traced.
Section 5 thereof provides, thus:

Section 5. HDO/WLO Lifting or Cancellation- In the lifting or cancellation of the HDO/WLO issued pursuant to this
Circular, the following shall apply:

(a) The HDO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the HDO as provided for in the preceding section has already expired;

2. When the accused subject of the HDO has been allowed to leave the country during the
pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order
of arrest was issued has been dismissed or the warrant/order of arrest has been recalled;
 3. When the civil or labor case or case before an administrative agency of the government wherein
the presence of the alien subject of the HDO/WLO has been dismissed by the court or by
appropriate government agency, or the alien has been discharged as a witness therein, or the alien
has been allowed to leave the country:

(b) The WLO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the WLO as provided for in the preceding section has already expired;

2. When the accused subject of the WLO has been allowed by the court to leave the country
during the pendency of the case, or has been acquitted of the charge; and

3. When the preliminary investigation is terminated, or when the petition for review, or motion
for reconsideration has been denied and/or dismissed.

xxxx

That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that under Sections
5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the country from the court during the
pendency of the case against him. Further, in 5 (b) (3), he may not leave unless the preliminary investigation of the
case in which he is involved has been terminated.

In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or WLO cannot leave
the country unless he obtains an ADO. The said section reads as follows:

Section 7. Allow Departure Order (ADO)- Any person subject of HDO/WLO issued pursuant to this Circular
who intends, for some exceptional reasons, to leave the country may, upon application under oath with the
Secretary of Justice, be issued an ADO.

The ADO may be issued upon submission of the following requirements:

(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and containing an
undertaking to immediately report to the DOJ upon return; and

(b) Authority to travel or travel clearance from the court or appropriate government office where the
case upon which the issued HDO/WLO was based is pending, or from the investigating prosecutor in
charge of the subject case.

By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country, the only plausible
conclusion that can be made is that its mere issuance operates as a restraint on the right to travel. To make it even
more difficult, the individual will need to cite an exceptional reason to justify the granting of an ADO.

The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that they are one
and the same or, at the very least, complementary such that whatever is not covered in Section 1,131 which pertains
to the issuance of HDO, can conveniently fall under Section 2,132 which calls for the issuance of WLO. In any case,
there is an identical provision in DOJ Circular No. 41 which authorizes the Secretary of Justice to issue a HDO or
WLO against anyone, motu proprio, in the interest of national security, public safety or public health. With this all-
encompassing provision, there is nothing that can prevent the Secretary of Justice to prevent anyone from leaving
the country under the guise of national security, public safety or public health.

The exceptions to the right to travel

are limited to those stated in Section
6, Article III of the Constitution

The DOJ argues that Section 6, Article III of the Constitution is not an exclusive enumeration of the instances
wherein the right to travel may be validly impaired.133 It cites that this Court has its own administrative issuances
restricting travel of its employees and that even lower courts may issue HDO even on grounds outside of what is
stated in the Constitution. 134

The argument fails to persuade.

It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a HDO against an
accused in a criminal case so that he may be dealt with in accordance with law.135 It does not require legislative
conferment or constitutional recognition; it co-exists with the grant of judicial power. In Defensor-Santiago vs.
Vasquez, 136 the Court declared, thus:

Courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in
addition to those expressly conferred on them. These inherent powers are such powers as are necessary for the
ordinary and efficient exercise of jurisdiction; or essential to the existence, dignity and functions of the court, as well
as to the due administration of justice; or are directly appropriate, convenient and suitable to the execution of their
granted powers; and include the power to maintain the court's jurisdiction and render it effective in behalf of the
litigants. 137

The inherent powers of the courts are essential in upholding its integrity and largely beneficial in keeping the
people's faith in the institution by ensuring that it has the power and the means to enforce its jurisdiction.

As regards the power of the courts to regulate foreign travels, the Court, in Leave Division, explained:

With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides that the Supreme
Court shall have administrative supervision over all courts and the personnel thereof. This provision
empowers the Court to oversee all matters relating to the effective supervision and management of all courts and
personnel under it. Recognizing this mandate, Memorandum Circular No. 26 of the Office of the President, dated
July 31, 1986, considers the Supreme Court exempt and with authority to promulgate its own rules and regulations
on foreign travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).

Where a person joins the Judiciary or the government in general, he or she swears to faithfully adhere to, and abide
with, the law and the corresponding office rules and regulations. These rules and regulations, to which one submits
himself or herself, have been issued to guide the government officers and employees in the efficient performance of
their obligations. When one becomes a public servant, he or she assumes certain duties with their concomitant
responsibilities and gives up some rights like the absolute right to travel so that public service would not be
prejudiced. 138

It is therefore by virtue of its administrative supervision over all courts and personnel that this Court came out with
OCA Circular No. 492003, which provided for the guidelines that must be observed by employees of the judiciary
seeking to travel abroad. Specifically, they are required to secure a leave of absence for the purpose of foreign
travel from this Court through the Chief Justice and the Chairmen of the Divisions, or from the Office of the Court
Administrator, as the case maybe. This is "to ensure management of court dockets and to avoid disruption in the
administration of justice."139

OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the employee's leave for
purpose of foreign travel which is necessary for the orderly administration of justice. To "restrict" is to restrain or
prohibit a person from doing something; to "regulate" is to govern or direct according to rule.140 This regulation comes
as a necessary consequence of the individual's employment in the judiciary, as part and parcel of his contract in
joining the institution. For, if the members of the judiciary are at liberty to go on leave any time, the dispensation of
justice will be seriously hampered. Short of key personnel, the courts cannot properly function in the midst of the
intricacies in the administration of justice. At any rate, the concerned employee is not prevented from pursuing his
travel plans without complying with OCA Circular No. 49-2003 but he must be ready to suffer the consequences of
his non-compliance.

The same ratiocination can be said of the regulations of the Civil Service Commission with respect to the
requirement for leave application of employees in the government service seeking to travel abroad. The Omnibus
Rules Implementing Book V of E.O. No. 292 states the leave privileges and availment guidelines for all government
employees, except those who are covered by special laws. The filing of application for leave is required for purposes
of orderly personnel administration. In pursuing foreign travel plans, a government employee must secure an
approved leave of absence from the head of his agency before leaving for abroad.

To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order (MO) No. 26 dated July 31,
1986, provided the procedure in the disposition of requests of government officials and employees for authority to
travel abroad. The provisions of this issuance were later clarified in the Memorandum Circular No. 18 issued on
October 27, 1992. Thereafter, on September 1, 2005, E.O. No. 459 was issued, streamlining the procedure in the
disposition of requests of government officials and employees for authority to travel abroad. Section 2 thereof states:

Section 2. Subject to Section 5 hereof, all other government officials and employees seeking authority to
travel abroad shall henceforth seek approval from their respective heads of agencies, regardless of the length
of their travel and the number of delegates concerned. For the purpose of this paragraph, heads of agencies refer to
the Department Secretaries or their equivalents. (Emphasis ours)

The regulation of the foreign travels of government employees was deemed necessary "to promote efficiency and
economy in the government service."141 The objective was clearly administrative efficiency so that government
employees will continue to render public services unless they are given approval to take a leave of absence in which
case they can freely exercise their right to travel. It should never be interpreted as an exception to the right to travel
since the government employee during his approved leave of absence can travel wherever he wants, locally or
abroad. This is no different from the leave application requirements for employees in private companies.

The point is that the DOJ may not justify its imposition of restriction on the right to travel of the subjects of DOJ
Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have inherent power to issue HDO,
unlike the courts, or to restrict the right to travel in anyway. It is limited to the powers expressly granted to it by law
and may not extend the same on its own accord or by any skewed interpretation of its authority.

The key is legislative enactment

The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but the solution
does not lie in taking constitutional shortcuts. Remember that the Constitution "is the fundamental and paramount
law of the nation to which all other laws must conform and in accordance with which all private rights are determined
and all public authority administered."142 Any law or issuance, therefore, must not contradict the language of the
fundamental law of the land; otherwise, it shall be struck down for being unconstitutional.

Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on constitutionally-
protected rights without the authority of a valid law. Even with the predicament of preventing the proliferation of
crimes and evasion of criminal responsibility, it may not overstep constitutional boundaries and skirt the prescribed
legal processes.

That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong against the state does
not warrant the intrusion in the enjoyment of their basic rights. They are nonetheless innocent individuals and
suspicions on their guilt do not confer them lesser privileges to enjoy. As emphatically pronounced in Secretary of
National Defense vs. Manalo, et al., 143 "the constitution is an overarching sky that covers all in its protection. It
affords protection to citizens without distinction. Even the most despicable person deserves the same respect in the
enjoyment of his rights as the upright and abiding.

Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The resolution of the issues in the
instant petitions was partly aimed at encouraging the legislature to do its part and enact the necessary law so that
the DOJ may be able to pursue its prosecutorial duties without trampling on constitutionally-protected rights. Without
a valid legislation, the DOJ's actions will perpetually be met with legal hurdles to the detriment of the due
administration of justice. The challenge therefore is for the legislature to address this problem in the form of a
legislation that will identify permissible intrusions in the right to travel. Unless this is done, the government will
continuously be confronted with questions on the legality of their actions to the detriment of the implementation of
government processes and realization of its objectives.

In the meantime, the DOJ may remedy its quandary by exercising more vigilance and efficiency in the performance
of its duties. This can be accomplished by expediency in the assessment of complaints filed before its office and in
the prompt filing of information in court should there be an affirmative finding of probable cause so that it may legally
request for the issuance of HDO and hold accused for trial. Clearly, the solution lies not in resorting to constitutional
shortcuts but in an efficient and effective performance of its prosecutorial duties.

The Court understands the dilemma of the government on the effect of the declaration of unconstitutionality of DOJ
Circular No. 41, considering the real possibility that it may be utilized by suspected criminals, especially the affluent
ones, to take the opportunity to immediately leave the country. While this is a legitimate concern, it bears stressing
that the government is not completely powerless or incapable of preventing their departure or having them answer
charges that may be subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice Carpio,
pointed out that Republic Act No. (R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly
grants the Secretary of Foreign Affairs or any of the authorized consular officers the authority to issue verify, restrict,
cancel or refuse the issuance of a passport to a citizen under the circumstances mentioned in Section 4144 thereof.
Mr. Justice Tijam, on the other hand, mentioned Memorandum Circular No. 036, which was issued pursuant to R.A.
No. 9208 or the Anti-Trafficking in Persons Act of 2003, as amended by R.A. No. 10364 or the Expanded Anti-
Trafficking in Persons Acts of 2012, which authorizes the BI to hold the departure of suspected traffickers or
trafficked individuals. He also noted that the Commissioner of BI has the authority to issue a HDO against a
foreigner subject of deportation proceedings in order to ensure his appearance therein. Similarly, the proposal of Mr.
Justice Velasco for the adoption of new set of rules which will allow the issuance of a precautionary warrant of arrest
offers a promising solution to this quandary. This, the Court can do in recognition of the fact that laws and rules of
procedure should evolve as the present circumstances require.

Contempt charge against respondent

De Lima

It is well to remember that on November 18, 2011, a Resolution145 was issued requiring De Lima to show cause why
she should not be disciplinarily dealt or be held in contempt for failure to comply with the TRO issued by this Court.

In view, however, of the complexity of the facts and corresponding full discussion that it rightfully deserves, the
Court finds it more fitting to address the same in a separate proceeding. It is in the interest of fairness that there be
a complete and exhaustive discussion on the matter since it entails the imposition of penalty that bears upon the
fitness of the respondent as a member of the legal profession. The Court, therefore, finds it proper to deliberate and
resolve the charge of contempt against De Lima in a separate proceeding that could accommodate a full opportunity
for her to present her case and provide a better occasion for the Court to deliberate on her alleged disobedience to
a lawful order.

WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby
declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby
declared NULL and VOID.

The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated November 28, 2011,
which required respondent Leila De Lima to show cause why she should not be cited in contempt, as a separate
petition.

SO ORDERED.

ANDRES B. REYES, JR.

Associate Justice

WE CONCUR:
G.R. No. 238467

MARK ANTHONY V. ZABAL, THITING ESTOSO JACOSALEM, AND ODON S. BANDIOLA, Petitioners
vs.
RODRIGO R. DUTERTE, President of the Republic of the Philippines; SALVADOR C. MEDIALDEA, Executive
Secretary; and EDUARDO M. ANO, [Secretary] of the Department of Interior and Local Government,
Respondents

DECISION

DEL CASTILLO, J.:

Paradise is a place of bliss, felicity, and delight. 1 For Filipinos and foreign nationals alike, Boracay - a small island in
Malay, Aklan, with its palm-fringed, pristine white sand beaches, azure waters, coral reefs, rare seashells,2 and a lot
more to offer,3 - is indeed a piece of paradise. Unsurprisingly, Boracay is one of the country's prime tourist
destinations. However, this island-paradise has been disrespected, abused, degraded, over-used, and taken
advantage of by both locals and tourists. Hence, the government gave Boracay its much-needed respite and
rehabilitation. However, the process by which the rehabilitation was to be implemented did not sit well with
petitioners, hence, the present petition.

The Case

Before this Court is a Petition for Prohibition and Mandamus with Application for Temporary Restraining Order,
Preliminary Injunction, and/or Status Quo Ante Order filed by petitioners Mark Anthony V. Zabal (Zabal), Thiting
Estoso Jacosalem (Jacosalem), and Odon S. Bandiola (Bandiola) against respondents President Rodrigo R. Duterte
(President Duterte ), Executive Secretary Salvador C. Medialdea, and Secretary Eduardo M. Año of the Department
of Interior and Local Government (DILG).

The Parties

Zabal and Jacosalem are both residents of Boracay who, at the time of the filing of the petition, were earning a living
from the tourist activities therein. Zabal claims to build sandcastles for tourists while Jacosalem drives for tourists
and workers in the island. While not a resident, Bandiola, for his part, claims to occasionally visit Boracay for
business and pleasure. The three base their locus standi on direct injury and also from the transcendental
importance doctrine. 4 Respondents, on the other hand, are being sued in their capacity as officials of the
government.

The Facts

Claiming that Boracay has become a cesspool, President Duterte first made public his plan to shut it down during a
business forum held in Davao sometime February 2018. 5 This was followed by several speeches and news
releases stating that he would place Boracay under a state of calamity. True to his words, President Duterte ordered
the shutting down of the island in a cabinet meeting held on April 4, 2018. This was confirmed by then Presidential
Spokesperson Harry L. Roque, Jr. in a press briefing the following day wherein he formally announced that the total
closure of Boracay would be for a maximum period of six months starting April 26, 2018. 6

Following this pronouncement, petitioners contend that around 630 police and military personnel were readily
deployed to Boracay including personnel for crowd dispersal management. 7 They also allege that the DILG had
already released guidelines for the closure. 8

Petitioners claim that ever since the news of Boracay's closure came about, fewer tourists had been engaging the
services of Zabal and Jacosalem such that their earnings were barely enough to feed their families. They fear that if
the closure pushes through, they would suffer grave and irreparable damage. Hence, despite the fact that the
government was then yet to release a formal issuance on the matter,9 petitioners filed the petition on April 25, 2018
praying that:
(a) Upon the filing of [the] petition, a TEMPORARY RESTRAINING ORDER (TRO) and/or a WRIT OF
PRELIMINARY PROHIBITORY INJUNCTION be immediately issued RESTRAINING and/or ENJOINING the
respondents, and all persons acting under their command, order, and responsibility from enforcing a closure of
Boracay Island or from banning the petitioners, tourists, and non-residents therefrom, and a WRIT OF
PRELIMINARY MANDATORY INJUNCTION directing the respondents, and all persons acting under their
command, order, and responsibility to ALLOW all of the said persons to enter and/or leave Boracay Island
unimpeded;

(b) In the alternative, if the respondents enforce the closure after the instant petition is filed, that a STATUS QUO
ANTE Order be issued restoring and maintaining the condition prior to such closure;

(c) After proper proceedings, a judgment be rendered PERMANENTLY RESTRAINING and/or ENJOINING the
respondents, and all persons acting under their command, order, and responsibility from enforcing a closure of
Boracay Island or from banning the petitioners, tourists, and non-residents therefrom, and further DECLARING the
closure of Boracay Island or the ban against petitioners, tourists, and non-residents therefrom to be
UNCONSTITUTIONAL.

Other reliefs just and equitable under the premises are similarly prayed for. 10

On May 18, 2018, petitioners filed a Supplemental Petition 11 stating that the day following the filing of their original
petition or on April 26, 2018, President Duterte issued Proclamation No. 475 12 formally declaring a state of calamity
in Boracay and ordering its closure for six months from April 26, 2018 to October 25, 2018. The closure was
implemented on even date. Thus, in addition to what they prayed for in their original petition, petitioners implore the
Court to declare as unconstitutional Proclamation No. 475 insofar as it orders the closure of Boracay and ban of
tourists and nonresidents therefrom. 13

In the Resolutions dated April 26, 201814 and June 5, 2018, 15 the Court required respondents to file their Comment
on the Petition and the Supplemental Petition, respectively. Respondents filed their Consolidated Comment16 on July
30, 2018 while petitioners filed their Reply 17 thereto on October 12, 2018.

On October 26, 2018, Boracay was reopened to tourism.

Petitioners' Arguments

Petitioners state that a petition for prohibition is the appropriate remedy to raise constitutional issues and to review
and/or prohibit or nullify, when proper, acts of legislative and executive officials. An action for mandamus, on the
other hand, lies against a respondent who unlawfully excludes another from the enjoyment of an entitled right or
office. Justifying their resort to prohibition and mandamus, petitioners assert that ( 1) this case presents
constitutional issues, i.e., whether President Duterte acted within the scope of the powers granted him by the
Constitution in ordering the closure of Boracay and, whether the measures implemented infringe upon the
constitutional rights to travel and to due process of petitioners as well as of tourists and non-residents of the island;
and, (2) President Duterte exercised a power legislative in nature, thus unlawfully excluding the legislative
department from the assertion of such power.

As to the substantive aspect, petitioners argue that Proclamation No. 475 is an invalid exercise of legislative powers.
They posit that its issuance is in truth a law-making exercise since the proclamation imposed a restriction on the
right to travel and therefore substantially altered the relationship between the State and its people by increasing the
former's power over the latter. Simply stated, petitioners posit that Proclamation No. 475 partakes of a law the
issuance of which is not vested in the President. As such, Proclamation No. 475 must be struck down for being the
product of an invalid exercise of legislative power.

Likewise, petitioners argue that Proclamation No. 475 is unconstitutional for infringing on the constitutional rights to
travel and to due process.

Petitioners point out that although Section 6, Article III of the Constitution explicitly allows the impairment of the right
to travel, two conditions, however, must concur to wit: (1) there is a law restricting the said right, and (2) the
restriction is based on national security, public safety or public health. For petitioners, neither of these conditions
have been complied with. For one, Proclamation No. 475 does not refer to any specific law restricting the right to
travel. Second, it has not been shown that the presence of tourists in the island poses any threat or danger to
national security, public safety or public health.

As to the right to due process, petitioners aver that the same covers property rights and these include the right to
work and earn a living. Since the government, through Proclamation No. 475, restricted the entry of tourists and
non-residents into the island, petitioners claim that they, as well as all others who work, do business, or earn a living
in the island, were deprived of the source of their livelihood as a result thereof. Their right to work and earn a living
was curtailed by the proclamation. Moreover, while Proclamation No. 475 cites various violations of environmental
laws in the island, these, for the petitioners, do not justify disregard of the rights of thousands of law-abiding people.
They contend that environmental laws provide for specific penalties intended only for violators. Verily, to make those
innocent of environmental transgressions suffer the consequences of the Boracay closure is tantamount to violating
their right to due process.

Petitioners likewise argue that the closure of Boracay could not be anchored on police power. For one, police power
must be exercised not by the executive but by legislative bodies through the creation of statutes and ordinances that
aim to promote the health, moral, peace, education, safety, and general welfare of the people. For another, the
measure is unreasonably unnecessary and unduly oppressive.

In their Supplemental Petition, petitioners aver that Proclamation No. 475 unduly impinges upon the local autonomy
of affected Local Government Units (LGUs) since it orders the said LGUs to implement the closure of Boracay and
the ban of tourists and non-residents therefrom. While petitioners acknowledge the President's power of supervision
over LGUs, they nevertheless point out that he does not wield the power of control over them. As such, President
Duterte can only call the attention of the LGUs concerned with regard to rules not being followed, which is the true
essence of supervision, but he cannot lay down the rules himself as this already constitutes control.

Finally, petitioners state that this case does not simply revolve on the need to rehabilitate Boracay, but rather, on the
extent of executive power and the manner by which it was wielded by President Duterte. To them, necessity does
not justify the President's abuse of power.

Respondents' Arguments

At the outset, respondents assert that President Duterte must be dropped as party-respondent in this case because
he is immune from suit. They also argue that the petition should be dismissed outright for lack of basis. According to
respondents, prohibition is a preventive remedy to restrain future action. Here, President Duterte had already issued
Proclamation No. 475 and in fact, the rehabilitation of the island was then already ongoing. These, according to
respondents, have rendered improper the issuance of a writ of prohibition considering that as a rule, prohibition
does not lie to restrain an act that is already fait accompli. Neither is mandamus proper. Section 3, Rule 65 of the
Rules of Court provides that a mandamus petition may be resorted to when any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station. Respondents argue that mandamus will not lie in this case because they were not
neglectful of their duty to protect the environment; on the contrary, they conscientiously performed what they were
supposed to do by ordering the closure of Boracay to give way to its rehabilitation. Thus, to them, mandamus is
obviously inappropriate.

At any rate, respondents contend that there is no real justiciable controversy in this case. They see no clash
between the right of the State to preserve and protect its natural resources and the right of petitioners to earn a
living. Proclamation No. 475 does not prohibit anyone from being gainfully employed.

Respondents moreover maintain that the petition is in the nature of a Strategic Lawsuit Against Public Participation
(SLAPP) under Rule 6 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases, or a legal action
filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government
has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of
environmental rights. Respondents thus assert that the petition must be dismissed since it was filed for the said sole
purpose.

With regard to the substantive aspect, respondents contend that the issuance of Proclamation No. 475 is a valid
exercise of delegated legislative power, it being anchored on Section 16 of Republic Act (RA) No. 10121, otherwise
known as the Philippine Disaster Risk Reduction and Management Act of 2010, or the authority given to the
President to declare a state of calamity, viz.:

SECTION 16. Declaration of State of Calamity. - The National Council shall recommend to the President of the
Philippines the declaration of a cluster of barangays, municipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by the National Council. The President's declaration may
warrant international humanitarian assistance as deemed necessary.

They likewise contend that Proclamation No. 475 was issued pursuant to the President's executive power under
Section 1, Article VII of the Constitution. As generally defined, executive power is the power to enforce and
administer laws. It is the power of implementing the laws and enforcing their due observance. And in order to
effectively discharge the enforcement and administration of the laws, the President is granted administrative power
over bureaus and offices, which includes the power of control. The power of control, in turn, refers to the authority to
direct the performance of a duty, restrain the commission of acts, review, approve, reverse or modify acts and
decisions of subordinate officials or units, and prescribe standards, guidelines, plans and programs. Respondents
allege that President Duterte's issuance of Proclamation No. 475 was precipitated by his approval of the
recommendation of the National Disaster Risk Reduction and Management Council (NDRRMC) to place Boracay
under a state of calamity. By giving his imprimatur, it is clear that the President merely exercised his power of
control over the executive branch.

In any case, respondents assert that the President has residual powers which are implied from the grant of
executive power and which are necessary for him to comply with his duties under the Constitution as held in the
case of Marcos v. Manglapus. 18

In sum, respondents emphasize that the issuance of Proclamation No. 475 is within the ambit of the powers of the
President, not contrary to the doctrine of separation of powers, and in accordance with the mechanism laid out by
the Constitution.

Further, respondents dispute petitioners' allegation that Proclamation No. 475 infringes upon the rights to travel and
to due process. They emphasize that the right to travel is not an absolute right. It may be impaired or restricted in
the interest of national security, public safety, or public health. In fact, there are already several existing laws which
serve as statutory limitations to the right to travel.

Anent the alleged violation of the right to due process, respondents challenge petitioners' claim that they were
deprived of their livelihood without due process. Respondents call attention to the fact that Zabal as sandcastle
maker and Jacosalem as driver are freelancers and thus belong to the infonnal economy sector. This means that
their source of livelihood is never guaranteed and is susceptible to changes in regulations and the overall business
climate. In any case, petitioners' contentions must yield to the State's exercise of police power. As held in Ermita-
Malate Hotel & Motel Operators Association, Inc. v. The Hon. City Mayor of Manila, 19 the mere fact that some
individuals in the community may be deprived of their present business or of a particular mode of living cannot
prevent the exercise of the police power of the State. Indeed, to respondents, private interests should yield to the
reasonable prerogatives of the State for the public good and welfare, which precisely are the primary objectives of
the government measure herein questioned

Lastly, respondents insist that Proclamation No. 475 does not unduly transgress upon the local autonomy of the
LGUs concerned. Under RA 10121, it is actually the Local Disaster Risk Reduction Management Council concerned
which, subject to several criteria, is tasked to take the lead in preparing for, responding to, and recovering from the
effects of any disaster when a state of calamity is declared. In any case, the devolution of powers upon LGUs
pursuant to the constitutional mandate of ensuring their autonomy does not mean that the State can no longer
interfere in their affairs. This is especially true in this case since Boracay's environmental disaster cannot be treated
as a localized problem that can be resolved by the concerned LGUs only. The magnitude and gravity of the problem
require the intervention and assistance of different national government agencies in coordination with the concerned
LGUs.

As a final point, respondents aver that the bottom line of petitioners' lengthy discourse and constitutional posturing is
their intention to re-open Boracay to tourists and non-residents for the then remainder of the duration of the closure
and thus perpetuate and further aggravate the island's environmental degradation. Respondents posit that this is
unacceptable since Boracay cannot be sacrificed for the sake of profit and personal convenience of the few.
 Our Ruling

First, we discuss the procedural issues.

President Duterte is dropped as

respondent in this case

As correctly pointed out by respondents, President Duterte must be dropped as respondent in this case. The Court's
pronouncement in Professor David v. President Macapagal-Arroyo20 on the non-suability of an incumbent President
cannot be any clearer, viz.:

x x x Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in
any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of
the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. 21

Accordingly, President Duterte is dropped as respondent in this case.

Propriety of Prohibition and

Mandamus

Section 2, Rule 65 of the Rules of Court provides for a petition for prohibition as follows:

SEC. 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or in excess of jurisdiction, and there is no appeal or any other
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such
incidental reliefs as law and justice may require.

xxxx

"Indeed, prohibition is a preventive remedy seeking that a judgment be rendered directing the defendant to desist
from continuing with the commission of an act perceived to be illegal. As a rule, the proper function of a writ of
prohibition is to prevent the performance of an act which is about to be done. It is not intended to provide a remedy
for acts already accomplished. "22

Mandamus, on the other hand, is provided for by Section 3 of the same Rule 65:

SEC. 3. Petition for mandamus. - When any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the court, to do the act required to be done to
protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.

xxxx

"As the quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully
neglects the performance of an act which the law enjoins as a duty resulting from an office, trust, or station."23
It is upon the above-discussed contexts of prohibition and mandamus that respondents base their contention of
improper recourse. Respondents maintain that prohibition is not proper in this case because the closure of Boracay
is already a fait accompli. Neither is mandamus appropriate since there is no neglect of duty on their part as they
were precisely performing their duty to protect the environment when the closure was ordered.

Suffice it to state, however, that the use of prohibition and mandamus is not merely confined to Rule 65. These
extraordinary remedies may be invoked when constitutional violations or issues are raised. As the Court stated
in Spouses Imbong v. Hon. Ochoa, Jr.: 24

As far back as Tañada v. Angara, the Court has unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in Macalintal v. COMELEC, Aldaba v.
COMELEC, Magallona v. Ermita, and countless others. In Tañada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. 'The question
thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. Once a 'controversy as to the application or interpretation of constitutional provision is raised
before this Court, as in the instant case, it becomes a legal issue which the Court is bound by constitutional
mandate to decide. x x x25 (Citations omitted; emphasis supplied)

It must be stressed, though, that resort to prohibition and mandamus on the basis of alleged constitutional violations
is not without limitations. After all, this Court does not have unrestrained authority to rule on just about any and
every claim of constitutional violation.26 The petition must be subjected to the four exacting requisites for the exercise
of the power of judicial review, viz.: (a) there must be an actual case or controversy; (b) the petitioners must
possess locus standi; ( c) the question of constitutionality must be raised at the earliest opportunity; and ( d) the
issue of constitutionality must be the lis mota of the case.27 Hence, it is not enough that this petition mounts a
constitutional challenge against Proclamation No. 475. It is likewise necessary that it meets the aforementioned
requisites before the Court sustains the propriety of the recourse.

Existence of Requisites for Judicial

Review

In La Bugal-B'laan Tribal Association, Inc. v. Sec. Ramos,28 an actual case or controversy was characterized as a
"case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of
the court would amount to an advisory opinion. The power does not extend to hypothetical questions since any
attempt at abstraction could only lead to dialectics and barren legal question and to sterile conclusions unrelated to
actualities."29

The existence of an actual controversy in this case is evident. President Duterte issued Proclamation No. 475 on
April 26, 2018 and, pursuant thereto, Boracay was temporarily closed the same day. Entry of non-residents and
tourists to the island was not allowed until October 25, 2018. Certainly, the implementation of the proclamation has
rendered legitimate the concern of petitioners that constitutional rights may have possibly been breached by this
governmental measure. It bears to state that when coupled with sufficient facts, "reasonable certainty of the
occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a
constitutional challenge". 30 And while it may be argued that the reopening of Boracay has seemingly rendered moot
and academic questions relating to the ban of tourists and non-residents into the island, abstention from judicial
review is precluded by such possibility of constitutional violation and also by the exceptional character of the
situation, the paramount public interest involved, and the fact that the case is capable of repetition.31

As to legal standing, petitioners assert that they were directly injured since their right to travel and, their right to work
and earn a living which thrives solely on tourist arrivals, were affected by the closure. They likewise want to
convince the Court that the issues here are of transcendental importance since according to them, the resolution of
the same will have farreaching consequences upon all persons living and working in Boracay; upon the Province of
Aklan which is heavily reliant on the island's tourism industry; and upon the whole country considering that
fundamental constitutional rights were allegedly breached.
"Legal standing or locus standi is a party's personal and substantial interest in a case such that he has sustained or
will sustain direct injury as a result of the governmental act being challenged. It calls for more than just a generalized
grievance. The term 'interest' means a material interest, an interest in issue affected by the decree, as distinguished
from mere interest in the question involved, or a mere incidental interest."32 There must be a present substantial
interest and not a mere expectancy or a future, contingent, subordinate, or consequential interest. 33

In Galicto v. Aquino III,34 the therein petitioner, Jelbert B. Galicto (Galicto) questioned the constitutionality of
Executive Order No. 7 (E07) issued by President Benigno Simeon C. Aquino III, which ordered, among others, a
moratorium on the increases in the salaries and other forms of compensation of all government-owned-and-
controlled corporations (GOCCs) and government financial institutions. The Court held that Galicto, an employee of
the GOCC Philhealth, has no legal standing to assail E07 for his failure to demonstrate that he has a personal stake
or material interest in the outcome of the case. His interest, if any, was speculative and based on a mere
expectancy. Future increases in his salaries and other benefits were contingent events or expectancies to which he
has no vested rights. Hence, he possessed no locus standi to question the curtailment thereof.

Here, as mentioned, Zabal is a sandcastle maker and Jacosalem, a driver. The nature of their livelihood is one
1avvphi1

wherein earnings are not guaranteed. As correctly pointed out by respondents, their earnings are not fixed and may
vary depending on the business climate in that while they can earn much on peak seasons, it is also possible for
them not to earn anything on lean seasons, especially when the rainy days set in. Zabal and Jacosalem could not
have been oblivious to this kind of situation, they having been in the practice of their trade for a considerable length
of time. Clearly, therefore, what Zabal and Jacosalem could lose in this case are mere projected earnings which are
in no way guaranteed, and are sheer expectancies characterized as contingent, subordinate, or consequential
interest, just like in Galicto. Concomitantly, an assertion of direct injury on the basis of loss of income does not
clothe Zabal and Jacosalem with legal standing.

As to Bandiola, the petition is bereft of any allegation as to his substantial interest in the case and as to how he
sustained direct injury as a result of the issuance of Proclamation No. 475. While the allegation that he is a non-
resident who occasionally goes to Boracay for business and pleasure may suggest that he is claiming direct injury
on the premise that his right to travel was affected by the proclamation, the petition fails to expressly provide
specifics as to how. "It has been held that a party who assails the constitutionality of a statute must have a direct
and personal interest. [He] must show not only that the law or any governmental act is invalid, but also that [he]
sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely
that [he] suffers thereby in some indefinite way. [He] must show that [he] has been or is about to be denied some
right or privilege to which [he] is lawfully entitled or that [he] is about to be subjected to some burdens or penalties
by reason of the statute or act complained of."35 Indeed, the petition utterly fails to demonstrate that Bandiola
possesses the requisite legal standing to sue.

Notwithstanding petitioners' lack of locus standi, this Court will allow this petition to proceed to its ultimate
conclusion due to its transcendental importance. After all, the rule on locus standi is a mere procedural technicality,
which the Court, in a long line of cases involving subjects of transcendental importance, has waived or relaxed, thus
allowing nontraditional plaintiffs such as concerned citizens, taxpayers, voters and legislators to sue in cases of
public interest, albeit they may not have been personally injured by a government act. 36 More importantly, the
matters raised in this case, involved on one hand, possible violations of the Constitution and, on the other, the need
to rehabilitate the country's prime tourist destination. Undeniably, these matters affect public interests and therefore
are of transcendental importance to the people. In addition, the situation calls for review because as stated, it is
capable of repetition, the Court taking judicial notice of the many other places in our country that are suffering from
similar environmental degradation.

As to the two other requirements, their existence is indubitable. It will be recalled that even before a formal issuance
on the closure of Boracay was made by the government, petitioners already brought the question of the
constitutionality of the then intended closure to this Court. And, a day after Proclamation No. 475 was issued, they
filed a supplemental petition impugning its constitutionality. Clearly, the filing of the petition and the supplemental
petition signals the earliest opportunity that the constitutionality of the subject government measure could be raised.
There can also be no denying that the very lis mota of this case is the constitutionality of Proclamation No. 475.

Defense of SLAPP
Suffice it to state that while this case touches on the environmental issues in Boracay, the ultimate issue for
resolution is the constitutionality of Proclamation No. 475. The procedure in the treatment of a defense of SLAPP
provided for under Rule 6 of the Rules of Procedure for Environmental Cases should not, therefore, be made to
apply.

Now as to the substantive issues.

We first quote in full Proclamation No. 475.

PROCLAMATION No. 475

DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG, MANOC-MANOC AND Y APAK

(ISLAND OF BORACAY) IN THE MUNICIPALITY OF MALAY, AKLAN, AND TEMPORARY CLOSURE OF THE
ISLAND AS A TOURIST DESTINATION

WHEREAS, Section 15, Article II of the 1987 Constitution states that the State shall protect and promote the right to
health of the people and instill health consciousness among them;

WHEREAS, Section 16, Article II of the 1987 Constitution provides that it is the policy of the State to protect and
advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of
nature;

WHEREAS, Section 2, Article XII of the 1987 Constitution provides that the State shall protect the nation's marine
wealth in its archipelagic waters, territorial sea, and exclusive economic zone;

WHEREAS, an Inter-Agency Task Force, composed of the Department of Environment and Natural Resources
(DENR), the [DILG] and the Department of Tourism (DOT), was established to evaluate the environmental state of
the Island of Boracay, and investigate possible violations of existing environmental and health laws, rules and
regulations;

WHEREAS, the investigations and validation undertaken revealed that:

a. There is a high concentration of fecal coliform in the Bolabog beaches located in the eastern side of
Boracay Island due to insufficient sewer lines and illegal discharge of untreated waste water into the beach,
with daily tests conducted from 6 to 10 March 2018 revealing consistent failure in compliance with
acceptable water standards, with an average result of 18,000 most probable number (MPN)/1 OOml,
exceeding the standard level of 400 MPN/100ml;

b. Most commercial establishments and residences are not connected to the sewerage infrastructure of
Boracay Island, and waste products are not being disposed through the proper sewerage infrastructures in
violation of environmental law, rules, and regulations;

c. Only 14 out of 51 establishments near the shores of Boracay Island are compliant with the provision of
Republic Act (RA) No. 9275 or the Philippine Clean Water Act of 2004;

d. Dirty water results in the degradation of the coral reefs and coral cover of Boracay Island, which declined
by approximately 70.5% from 1988 to 2011, with the highest decrease taking place between 2008 and 2011
during a period of increased tourist arrivals (approximately 38.4%);

e. Solid waste within Boracay Island is at a generation rate of 90 to 115 tons per day, while the hauling
capacity of the local government is only 30 tons per day, hence, leaving approximately 85 tons of waste in
the Island daily;

f. The natural habitats of Puka shells, nesting grounds of marine turtles, and roosting grounds of flying foxes
or fruit bats have been damaged and/or destroyed; and
 g. Only four (4) out of nine (9) wetlands in Boracay Island remain due to illegal encroachment of structures,
including 93 7 identified illegal structures constructed on forestlands and wetlands, as well as 102 illegal
structures constructed on areas already classified as easements, and the disappearance of the wetlands,
which acts as natural catchments, enhances flooding in the area;

WHEREAS, the findings of the Department of Science and Technology (DOST) reveal that beach erosion is
prevalent in Boracay Island, particularly along the West Beach, where as much as 40 meters of erosion has taken
place in the past 20 years from 1993 to 2003, due to storms, extraction of sand along the beach to construct
properties and structures along the foreshore, and discharge of waste water near the shore causing degradation of
coral reefs and seagrass meadows that supply the beach with sediments and serve as buffer to wave action;

WHEREAS, the DOST also reports that based on the 2010-2015 Coastal Ecosystem Conservation and Adaptive
Management Study of the Japan International Cooperation Agency, direct discharge of waste water near the shore
has resulted in the frequent algal bloom and coral deterioration, which may reduce the source of sand and cause
erosion;

WHEREAS, the data from the Region VI - Western Visayas Regional Disaster Risk Reduction and Management
Council shows that the number of tourists in the island in a day amounts to 18,082, and the tourist arrival increased
by more than 160% from 2012 to 2017;

WHEREAS, the continuous rise of tourist arrivals, the insufficient sewer and waste management system, and
environmental violations of establishments aggravate the environmental degradation and destroy the ecological
balance of the Island of Boracay, resulting in major damage to property and natural resources, as well as the
disruption of the normal way of life of the people therein;

WHEREAS, it is necessary to implement urgent measures to address the abovementioned human-induced hazards,
to protect and promote the health and well-being of its residents, workers and tourists, and to rehabilitate the Island
in order to ensure the sustainability of the area and prevent further degradation of its rich ecosystem;

WHEREAS, RA No. 9275 provides that the DENR shall designate water bodies, or portions thereof, where specific
pollutants from either natural or man-made source have already exceeded water quality guidelines as non-
attainment areas for the exceeded pollutants and shall prepare and implement a program that will not allow new
sources of exceeded water pollutant in non-attainment areas without a corresponding reduction in discharges from
existing sources;

WHEREAS, RA No. 9275 also mandates the DENR, in coordination with other concerned agencies and the private
sectors, to take such measures as may be necessary to upgrade the quality of such water in non-attainment areas
to meet the standards under which it has been classified, and the local government units to prepare and implement
contingency plans and other measures including relocation, whenever necessary, for the protection of health and
welfare of the residents within potentially affected areas;

WHEREAS, Proclamation No. 1064 (s. 2006) classified the Island of Boracay into 3 77 .68 hectares of reserved
forest land for protection purposes and 628.96 hectares of agricultural land as alienable and disposable land;

WHEREAS, pursuant to the Regalian Doctrine, and as emphasized in recent jurisprudence, whereby all lands not
privately owned belong to the State, the entire island of Boracay is state-owned, except for lands already covered by
existing valid titles;

WHEREAS, pursuant to RA No. 10121, or the Philippine Disaster Risk Reduction and Management Act of 2010, the
National Disaster Risk Reduction and Management Council has recommended the declaration of a State of
Calamity in the Island of Boracay and the temporary closure of the Island as a tourist destination to ensure public
safety and public health, and to assist the government in its expeditious rehabilitation, as well as in addressing the
evolving socio-economic needs of affected communities;

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by virtue of the powers vested in
me by the Constitution and existing laws, do hereby declare a State of Calamity in the barangays of Balabag,
Manoc-Manoc and Yapak (Island of Boracay) in the Municipality of Malay, Aklan. In this regard, the temporary
closure of the Island as a tourist destination for six (6) months starting 26 April 2018, or until 25 October 2018, is
hereby ordered subject to applicable laws, rules, regulations and jurisprudence.

Concerned government agencies shall, as may be necessary or appropriate, undertake the remedial measures
during a State of Calamity as provided in RA No. 10121 and other applicable laws, rules and regulations, such as
control of the prices of basic goods and commodities for the affected areas, employment of negotiated procurement
and utilization of appropriate funds, including the National Disaster Risk Reduction and Management Fund, for relief
and rehabilitation efforts in the area. All departments and other concerned government agencies are also hereby
directed to coordinate with, and provide or augment the basic services and facilities of affected local government
units, if necessary.

The State of Calamity in the Island of Boracay shall remain in force and effect until lifted by the President,
notwithstanding the lapse of the six-month closure period.

All departments, agencies and offices, including government-owned or controlled corporations and affected local
government units are hereby directed to implement and execute the abovementioned closure and the appropriate
rehabilitation works, in accordance with pertinent operational plans and directives, including the Boracay Action
Plan.

The Philippine National Police, Philippine Coast Guard and other law enforcement agencies, with the support of the
Armed Forces of the Philippines, are hereby directed to act with restraint and within the bounds of the law in the
strict implementation of the closure of the Island and ensuring peace and order in the area.

The Municipality of Malay, Aklan is also hereby directed to ensure that no tourist will be allowed entry to the island of
Boracay until such time that the closure has been lifted by the President.

All tourists, residents and establishment owners in the area are also urged to act within the bounds of the law and to
comply with the directives herein provided for the rehabilitation and restoration of the ecological balance of the
Island which will be for the benefit of all concerned.

It must be noted at the outset that petitioners failed to present and establish the factual bases of their arguments
because they went directly to this Court. In ruling on the substantive issues in this case, the Court is, thus,
constrained to rely on, and uphold the factual bases, which prompted the issuance of the challenged proclamation,
as asserted by respondents. Besides, executive determinations, such as said factual bases, are generally final on
this Court.37

The Court observes that the meat of petitioners' constitutional challenge on Proclamation No. 475 is the right to
travel.

Clearly then, the one crucial question that needs to be preliminarily answered is - does Proclamation No. 475
constitute an impairment on the right to travel?

The Court answers in the negative.

Proclamation No. 475 does not pose an

actual impairment on the right to travel

Petitioners claim that Proclamation No. 475 impairs the right to travel based on the following provisions:

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by virtue of the powers vested in
me by the Constitution and existing laws, do hereby declare a State of Calamity in the barangays of Balabag,
Manoc-Manoc and Yapak (Island of Boracay) in the Municipality of Malay, Aldan. In this regard, the temporary
closure of the Island as a tourist destination for six (6) months starting 26 April 2018, or until 25 October
2018, is hereby ordered subject to applicable laws, rules, regulations and jurisprudence.

xxxx
The Municipality of Malay, Aldan is also hereby directed to ensure that no tourist will be allowed entry to the
island of Boracay until such time that the closure has been lifted by the President.

xxxx

The activities proposed to be undertaken to rehabilitate Boracay involved inspection, testing, demolition, relocation,
and construction. These could not have been implemented freely and smoothly with tourists coming in and out of the
island not only because of the possible disruption that they may cause to the works being undertaken, but primarily
because their safety and convenience might be compromised. Also, the contaminated waters in the island were not
just confined to a small manageable area. The excessive water pollutants were all over Bolabog beach and the
numerous illegal drainpipes connected to and discharging wastewater over it originate from different parts of the
island. Indeed, the activities occasioned by the necessary digging of these pipes and the isolation of the
contaminated beach waters to give way to treatment could not be done in the presence of tourists. Aside from the
dangers that these contaminated waters pose, hotels, inns, and other accommodations may not be available as they
would all be inspected and checked to determine their compliance with environmental laws. Moreover, it bears to
state that a piece-meal closure of portions of the island would not suffice since as mentioned, illegal drainpipes
extend to the beach from various parts of Boracay. Also, most areas in the island needed major structural
rectifications because of numerous resorts and tourism facilities which lie along easement areas, illegally reclaimed
wetlands, and of forested areas that were illegally cleared for construction purposes. Hence, the need to close the
island in its entirety and ban tourists therefrom.

In fine, this case does not actually involve the right to travel in its essential sense contrary to what petitioners want to
portray. Any bearing that Proclamation No. 475 may have on the right to travel is merely corollary to the closure of
Boracay and the ban of tourists and non-residents therefrom which were necessary incidents of the island's
rehabilitation. There is certainly no showing that Proclamation No. 475 deliberately meant to impair the right to
travel. Tue questioned proclamation is clearly focused on its purpose of rehabilitating Boracay and any intention to
directly restrict the right cannot, in any manner, be deduced from its import. This is contrary to the import of several
laws recognized as constituting an impairment on the right to travel which directly impose restriction on the right,
viz.:

[1] The Human Security Act of2010 or Republic Act (R.A.) No. 9372. The law restricts the right travel of an individual
charged with the crime of terrorism even though such person is out on bail.

[2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or
his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino
citizen.

[3] The 'Anti-Trafficking in Persons Act of 2003' or RA 9208. Pursuant to the provisions thereof, the Bureau of
Immigration, in order to manage migration and curb trafficking in persons, issued Memorandum Order Radjr No.
2011-011, allowing its Travel Control and Enforcement Unit to 'offload passengers with fraudulent travel documents,
doubtful purpose of travel, including possible victims of human trafficking' from our ports.

[4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No. 8042, as amended by R.A. No. 10022. In
enforcement of said law, the Philippine Overseas Employment Administration (POEA) may refuse to issue
deployment permit[ s] to a specific country that effectively prevents our migrant workers to enter such country.

[5] The Act on Violence Against Women and Children or R.A. No. 9262. The law restricts movement of an individual
against whom the protection order is intended.

[6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption Board may
issue rules restrictive of an adoptee's right to travel 'to protect the Filipino child from abuse, exploitation, trafficking
and/or sale or any other practice in connection with adoption which is harmful, detrimental, or prejudicial to the
child.’38

In Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 39 the Court held that the consequence on the right
to travel of the deployment ban implemented by virtue of Department Order No. 1, Series of 1998 of the Department
of Labor and Employment does not impair the right.
Also significant to note is that the closure of Boracay was only temporary considering the categorical
pronouncement that it was only for a definite period of six months.

Hence, if at all, the impact of Proclamation No. 475 on the right to travel is not direct but merely consequential; and,
the same is only for a reasonably short period of time or merely temporary.

In this light, a discussion on whether President Duterte exercised a power legislative in nature loses its significance.
Since Proclamation No. 475 does not actually impose a restriction on the right to travel, its issuance did not result to
any substantial alteration of the relationship between the State and the people. The proclamation is therefore not a
law and conversely, the President did not usurp the law-making power of the legislature.

For obvious reason, there is likewise no more need to determine the existence in this case of the requirements for a
valid impairment of the right to travel.

Even if it is otherwise, Proclamation

No. 475 must be upheld for being in
the nature of a valid police power
measure

Police power, amongst the three fundamental and inherent powers of the state, is the most pervasive and
comprehensive.40 "It has been defined as the 'state authority to enact legislation that may interfere with personal
liberty or property in order to promote general welfare."41 "As defined, it consists of (1) imposition or restraint upon
liberty or property, (2) in order to foster the common good. It is not capable of exact definition but has be purposely,
veiled in general terms to underscore its all-comprehensive embrace."42 The police power "finds no specific
Constitutional grant for the plain reason that it does not owe its origin to the Charter"43 since "it is inborn in the very
fact of statehood and sovereignty."44 It is said to be the "inherent and plenary power of the State which enables it to
prohibit all things hurtful to the comfort, safety, and welfare of the society."45 Thus, police power constitutes an
implied limitation on the Bill of Rights. 46 After all, "the Bill of Rights itself does not purport to be an absolute guaranty
of individual rights and liberties. 'Even liberty itself, the greatest of all rights, is not unrestricted license to act
according to one's will.' It is subject to the far more overriding demands and requirements of the greater number."47

"Expansive and extensive as its reach may be, police power is not a force without limits."48 "It has to be exercised
within bounds - lawful ends through lawful means, i.e., that the interests of the public generally, as distinguished
from that of a particular class, require its exercise, and that the means employed are reasonably necessary for the
accomplishment of the purpose while not being unduly oppressive upon individuals."49

That the assailed governmental measure in this case is within the scope of police power cannot be disputed. Verily,
the statutes50 from which the said measure draws authority and the constitutional provisions51 which serve as its
framework are primarily concerned with the environment and health, safety, and well-being of the people, the
promotion and securing of which are clearly legitimate objectives of governmental efforts and regulations. The
motivating factor in the issuance of Proclamation No. 475 is without a doubt the interest of the public in general. The
only question now is whether the means employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.

The pressing need to implement urgent measures to rehabilitate Boracay is beyond cavil from the factual milieu that
precipitated the President's issuance of Proclamation No. 475. This necessity is even made more critical and
insistent by what the Court said in Oposa v. Hon. Factoran, Jr. 52 in regard the rights to a balanced and healthful
ecology and to health, which rights are likewise integral concerns in this case. Oposa warned that unless the rights
to a balanced and healthful ecology and to health are given continuing importance and the State assumes its
solemn obligation to preserve and protect them, the time will come that nothing will be left not only for this
generation but for the generations to come as well. 53 It further taught that the right to a balanced and healthful
ecology carries with it the correlative duty to refrain from impairing the environment. 54

Against the foregoing backdrop, we now pose this question: Was the temporary closure of Boracay as a tourist
destination for six months reasonably necessary under the circumstances? The answer is in the affirmative.

As earlier noted, one of the root causes of the problems that beset Boracay was tourist influx. Tourist arrivals in the
island were clearly far more than Boracay could handle. As early as 2007, the DENR had already determined this as
the major cause of the catastrophic depletion of the island's biodiversity. 55 Also part of the equation is the lack of
commitment to effectively enforce pertinent environmental laws. Unfortunately, direct action on these matters has
been so elusive that the situation reached a critical level. Hence, by then, only bold and sweeping steps were
required by the situation.

Certainly, the closure of Boracay, albeit temporarily, gave the island its much needed breather, and likewise
afforded the government the necessary leeway in its rehabilitation program. Note that apart from review, evaluation
and amendment of relevant policies, the bulk of the rehabilitation activities involved inspection, testing, demolition,
relocation, and construction. These works could not have easily been done with tourists present. The rehabilitation
works in the first place were not simple, superficial or mere cosmetic but rather quite complicated, major, and
permanent in character as they were intended to serve as long-term solutions to the problem. 56 Also, time is of the
essence. Every precious moment lost is to the detriment of Boracay's environment and of the health and well-being
of the people thereat. Hence, any unnecessary distraction or disruption is most unwelcome. Moreover, as part of the
rehabilitation efforts, operations of establishments in Boracay had to be halted in the course thereof since majority, if
not all of them, need to comply with environmental and regulatory requirements in order to align themselves with the
government's goal to restore Boracay into normalcy and develop its sustainability. Allowing tourists into the island
while it was undergoing necessary rehabilitation would therefore be pointless as no establishment would cater to
their accommodation and other needs. Besides, it could not be said that Boracay, at the time of the issuance of the
questioned proclamation, was in such a physical state that would meet its purpose of being a tourist destination. For
one, its beach waters could not be said to be totally safe for swimming. In any case, the closure, to emphasize, was
only for a definite period of six months, i.e., from April 26, 2018 to October 25, 2018. To the mind of the Court, this
period constitutes a reasonable time frame, if not to complete, but to at least put in place the necessary
rehabilitation works to be done in the island. Indeed, the temporary closure of Boracay, although unprecedented and
radical as it may seem, was reasonably necessary and not unduly oppressive under the circumstances. It was the
most practical and realistic means of ensuring that rehabilitation works in the island are started and carried out in the
most efficacious and expeditious way. Absent a clear showing of grave abuse of discretion, unreasonableness,
arbitrariness or oppressiveness, the Court will not disturb the executive determination that the closure of Boracay
was necessitated by the foregoing circumstances. As earlier noted, petitioners totally failed to counter the factual
bases of, and justification for the challenged executive action.

Undoubtedly, Proclamation No. 475 is a valid police power measure. To repeat, police power constitutes an implied
limitation to the Bill of Rights, and that even liberty itself, the greatest of all rights, is subject to the far more
overriding demands and requirements of the greater number.

For the above reasons, petitioners' constitutional challenge on Proclamation No. 475 anchored on their perceived
impairment of the right to travel must fail.

Petitioners have no vested rights on

their sources of income as to be
entitled to due process

Petitioners argue that Proclamation No. 475 impinges on their constitutional right to due process since they were
deprived of the corollary right to work and earn a living by reason of the issuance thereof.

Concededly, "[a] profession, trade or calling is a property right within the meaning of our constitutional guarantees.
One cannot be deprived of the right to work and the right to make a living because these rights are property rights,
the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong."57 Under this premise,
petitioners claim that they were deprived of due process when their right to work and earn a living was taken away
from them when Boracay was ordered closed as a tourist destination. It must be stressed, though, that "when the
conditions so demand as determined by the legislature, property rights must bow to the primacy of police power
because property rights, though sheltered by due process, must yield to general welfare."58 Otherwise, police power
as an attribute to promote the common good would be diluted considerably if on the mere plea of petitioners that
they will suffer loss of earnings and capital, government measures implemented pursuant to the said state power
would be stymied or invalidated. 59

In any case, petitioners, particularly Zabal and Jacosalem, cannot be said to have already acquired vested rights to
their sources of income in Boracay. As heretofore mentioned, they are part of the informal sector of the economy
where earnings are not guaranteed. In Southern Luzon Drug Corporation v. Department of Social Welfare and
Development, 60 the Court elucidated on vested rights, as follows:

x x x Vested rights are 'fixed, unalterable, or irrevocable.' More extensively, they are depicted as follows:

Rights which have so completely and definitely accrued to or settled in a person that they are not subject to be
defeated or cancelled by the act of any other private person, and which it is right and equitable that the government
should recognize and protect, as being lawful in themselves, and settled according to the then current rules of law,
and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be
deprived otherwise than by the established methods of procedure and for the public welfare. x x x A right is not
'vested' unless it is more than a mere expectancy based on the anticipated continuance of present laws; it must be
an established interest in property, not open to doubt. x x x To be vested in its accurate legal sense, a right must be
complete and consummated, and one of which the person to whom it belongs cannot be divested without his
consent. x x x61

Here, Zabal and J acosalem 's asserted right to whatever they may earn from tourist arrivals in Boracay is merely an
inchoate right or one that has not fully developed and therefore cannot be claimed as one's own. An inchoate right is
a mere expectation, which may or may not come into fruition. "It is contingent as it only comes 'into existence on an
event or condition which may not happen or be performed until some other event may prevent their
vesting.’’’’62 Clearly, said petitioners' earnings are contingent in that, even assuming tourists are still allowed in the
island, the will still earn nothing if no one avails of their services. Certainly, they do not possess any vested right on
their sources of income, and under this context, their claim of lack of due process collapses. To stress, only rights
which have completely and definitely accrued and settled are entitled protection under the due process clause.

Besides, Proclamation No. 475 does not strip Zabal and Jacosalem of their right to work and earn a living. They are
free to work and practice their trade elsewhere. That they were not able to do so in Boracay, at least for the duration
of its closure, is a necessary consequence of the police power measure to close and rehabilitate the island.

Also clearly untenable is petitioners' claim that they were being made to suffer the consequences of the
environmental transgressions of others. It must be stressed that the temporary closure of Boracay as a tourist
destination and the consequent ban of tourists into the island were not meant to serve as penalty to violators of
environmental laws. The temporary closure does not erase the environmental violations committed; hence, the
liabilities of the violators remain and only they alone shall suffer the same. The temporary inconvenience that
petitioners or other persons may have experienced or are experiencing is but the consequence of the police
measure intended to attain a much higher purpose, that is, to protect the environment, the health of the people, and
the general welfare. Indeed, any and all persons may be burdened by measures intended for the common good or
to serve some important governmental interest. 63

No intrusion into the autonomy of the

concerned LGUs

The alleged intrusion of the President into the autonomy of the LG Us concerned is likewise too trivial to merit this
Court's consideration. Contrary to petitioners' argument, RA 10121 recognizes and even puts a premium on the role
of the LG Us in disaster risk reduction and management as shown by the fact that a number of the legislative
policies set out in the subject statute recognize and aim to strengthen the powers decentralized to LGUs. 64 This role
is echoed in the questioned proclamation.

The fact that other government agencies are involved in the rehabilitation works does not create the inference that
the powers and functions of the LGUs are being encroached upon. The respective roles of each government agency
are particularly defined and enumerated in Executive Order No. 5365 and all are in accordance with their respective
mandates. Also, the situation in Boracay can in no wise be characterized or labelled as a mere local issue as to
leave its rehabilitation to local actors. Boracay is a prime tourist destination which caters to both local and foreign
tourists. Any issue thereat has corresponding effects, direct or otherwise, at a national level. This, for one,
reasonably takes the issues therein from a level that concerns only the local officials. At any rate, notice must be
taken of the fact that even if the concerned LGUs have long been fully aware of the problems afflicting Boracay, they
failed to effectively remedy it. Yet still, in recognition of their mandated roles and involvement in the rehabilitation of
Boracay, Proclamation No. 475 directed "[a]ll departments, agencies and offices, including government-owned or
controlled corporations and affected local government units x x x to implement and execute xx x the closure [of
Boracay] and the appropriate rehabilitation works, in accordance with pertinent operational plans and directives,
including the Boracay Action Plan."

As a final note, the Court in Metropolitan Manila Development Authority v. Concerned Residents of Manila
Bay, 66 called out the concerned government agencies for their cavalier attitude towards solving environmental
destruction despite hard evidence and clear signs of climate crisis. It equated the failure to put environmental
protection on a plane of high national priority to the then lacking level of bureaucratic efficiency and commitment.
Hence, the Court therein took it upon itself to put the heads of concerned department-agencies and the bureaus and
offices under them on continuing notice and to enjoin them to perform their mandates and duties towards the clean-
up and/or restoration of Manila Bay, through a "continuing mandamus." It likewise took the occasion to state, viz.:

In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all
concerned executive departments and agencies to immediately act and discharge their respective official duties and
obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and
completion of the tasks, some of them as defined for them by law and the nature of their respective offices and
mandates.

The importance of the Manila Bay as a sea resource, playground and as a historical landmark cannot be over-
emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put their minds
to these tasks and take responsibility. This means that the State, through [the concerned department-agencies], has
to take the lead in the preservation and protection of the Manila Bay.

The era of delays, procrastination, and ad hoc measures is over. [The concerned department-agencies] must
transcend their limitations, real or imaginary, and buckle down to work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different government agencies and instrumentalities cannot shirk from
their mandates; they must perform their basic functions in cleaning up and rehabilitating the Manila Bay. x x x67

There is an obvious similarity in Metropolitan Manila Development Authority and in the present case in that both
involve the restoration of key areas in the country which were once glowing with radiance and vitality but are now in
shambles due to abuses and exploitation. What sets these two cases apart is that in the former, those mandated to
act still needed to be enjoined in order to act. In this case, the bold and urgent action demanded by the Court
in Metropolitan Manila Development Authority is now in the roll out. Still, the voice of cynicism, naysayers, and
procrastinators heard during times of inaction can still be heard during this time of full action - demonstrating a
classic case of "damn if you do, damn if you don't". Thus, in order for the now staunch commitment to save the
environment not to fade, it behooves upon the courts to be extra cautious in invalidating government measures
meant towards addressing environmental degradation. Absent any clear showing of constitutional infirmity,
arbitrariness or grave abuse of discretion, these measures must be upheld and even lauded and promoted. After all,
not much time is left for us to remedy the present environmental situation. To borrow from Oposa, unless the State
undertakes its solemn obligation to preserve the rights to a balanced and healthful ecology and advance the health
of the people, "the day would not be too far when all else would be lost not only for the present generation, but also
for those to come - generations which stand to inherit nothing but parched earth incapable of sustaining life."68

All told, the Court sustains the constitutionality and validity of Proclamation No. 475.

WHEREFORE, the Petition for Prohibition and Mandamus is DISMISSED.

SO ORDERED.