Marcos vs. Manglapus

668
SUPREME COURT REPORTS ANNOTATED

Marcos vs. Manglapus
G.R. No. 88211.September 15, 1989.*
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.
ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO
E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners, vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACA-RAIG, SEDFREY ORDOEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as
Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents.
Political Law; Bill of Rights; Liberty of Abode; Right to Travel; The right to return to ones
country is not among the rights specifically guaranteed under the Bill of Rights, though it may
well be considered
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* EN BANC.
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as a generally accepted principle of international law which is part of the law of the land.The
right to return to ones country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel, but it is our
wellconsidered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution]. However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and Political Rights,
i.e.,against being arbitrarily deprived thereof [Art. 12 (4)].
Same; Same; The constitutional guarantees invoked by petitioners are not absolute and
inflexible, they admit of limits and must be adjusted to the requirements of equally important
public interests.The resolution of the problem is made difficult because the persons who seek
to return to the country are the deposed dictator and his family at whose door the travails of the
country are laid and from whom billions of dollars believed to be ill-gotten wealth are sought to
be recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For
the exercise of even the preferred freedoms of speech and of expression, although couched in
absolute terms, admits of limits and must be adjusted to the requirements of equally important
public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988].
Same; Separation of Powers; Executive Powers; The grant of execu-tive power means a grant of
all executive powers.The 1987 Constitution has fully restored the separation of powers of the
three great branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], the Constitution has blocked out with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the judicial departments of
the government. [At 157]. Thus, the 1987 constitution explicitly provides that [t]he legislative
power shall be vested in the Congress of the Philippines [Art. VI, Sec. 1], [t]he executive
power shall be vested in the President of the Philippines [Art. VII, Sec. 1], and [t]he judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary legislative, executive
and judicial powers subject only to limitations provided in the Constitution. For as the Supreme
Court in Ocampo v. Cabangis [15 Phil. 626, (1910)] pointed out a grant of the legislative power
means a
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grant of all legislative power; and a grant of the judicial power means a grant of all the judicial
power which may be exercised under the government. [At 631-632.] If this can be said of the
legislative power which is exercised by two chambers with a combined membership of more
than two hundred members and of the judicial power which is vested in a hierarchy of courts, it
can equally be said of the executive power which is vested in one officialthe President.
Same; Same; Same; The President; The powers granted to the President are not limited to those
powers specifically enumerated in the Constitution.It would not be accurate, however, to
state that executive power is the power to enforce the laws, for the President is head of state
as well as head of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides
that the execution of the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execu-tion of any provision of law, e.g.,his
power over the countrys foreign relations. On these premises, we hold the view that although
the 1987 Constitution imposes limitations on the exercise of specificpowers of the President, it
maintains intact what is traditionally considered as within the scope of executive power.
Corollarily, the powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the sum of
specific powers so enumerated.
Same; Same; Same; Same; Commander-In-Chief Powers: The President can exercise
Commander-In-Chief powers in order to keep the peace and maintain public order and security
even in the absence of an emergency.More particularly, this case calls for the exercise of the
Presidents powers as protector of the peace. [Rossiter, The Ameri-can Presidency.] The power
of the President to keep the peace is not limited merely to exercising the commander-in-chief
powers in times of emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of emergency,
but is also tasked with attending to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in
any way disminished by the relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the enumeration of powers that
follow cannot be said to exclude the Presi-dents exercising as Commander-in-Chief powers
short of the calling of
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the armed forces, or suspending the privilege of the writ of habeas corpusor declaring martial
law, in order to keep the peace, and maintain public order and security.
Same; Same; Same; Same; The President has the power under the Constitution to bar the
Marcoses from returning to our country.That the President has the power under the
Constitution to bar the Marcoses from returning has been recognized by members of the
Legislature, and is manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to return to the
Philippines as a genuine unselfish gesture for true national reconciliation and as irrevocable
proof of our collective adherence to uncompromising respect for human rights under the
Constitution and our laws. [House Resolution No. 1342, Rollo, p. 321.] The Resolution does not
question the Presidents power to bar the Marcoses from returning to the Philippines, rather, it
appeals to the Presidents sense of compassion to allow a man to come home to die in his
country. What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or
of case law which clearly never contemplated situations even remotely similar to the present
one. It must be treated as a matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the paramount duty residing in
that office to safeguard and protect general welfare. In that context, such request or demand
should submit to the exercise of a broader discretion on the part of the President to determine
whether it must be granted or denied.
Same; Same; Same; Power of Judicial Review; Political Question Doctrine; The present
Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry.Under the Constitution, judicial power includes the duty to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Goverment. [Art. VIII, Sec. 1.] Given this wording, we
cannot agree with the Solicitor General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide. The present Constitution limits resort to the
political question doctrine and broadens the scope of judicial inquiry into areas which the
Court, under previous constitutions, would have normally left to the political departments to
decide. But nonetheless there remain issues beyond the Courts jurisdiction the determination of
which is exclusively for
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the President, for Congress or for the people themselves through a plebiscite or referendum. We
cannot, for example, question the Presidents recognition of a foreign government, no matter
how premature or improvident such action may appear. We cannot set aside a presidential
pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor
can we amend the Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.
Same; Same; Same; Same; In the exercise of the power of judicial review, the function of the
court is merely to check, not to supplant the Executive.There is nothing in the case before us
that precludes our determination thereof on the political question doctrine. The deliberations of
the Constitutional Commission cited by petitioners show that the framers intended to widen the
scope of judicial review but they did not intend courts of justice to settle all actual controversies
before them. When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter alone to decide. In this light, it
would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution,
defining judicial power, which specifically empowers the courts to determine whether or not
there has been a grave abuse of discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-
33964, December 11, 1971, 42 SCRA 448] that: Article VII of the [1935] Constitution vests in the
Executive the power to suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying our system of
government, the Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the
system of checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere alloted to him by the
Basic Law, and the authority to determine whether or not he has so acted is vested in the
Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise
of such authority, the function of the Court is merely to checknot to supplantthe Executive,
or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction,
not to exercise the power vested in him or to determine the
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wisdom of his act. . . . [At 479-480.]
Same; Same; Same; Same; The President did not act arbitrarily, capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to national interest and
welfare, and in prohibiting their return.We find that from the pleadings filed by the parties,
from their oral arguments, and the facts revealed during the briefing in chambers by the Chief
of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist factual basis for the Presidents
decision. The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a wellorganized communist insurgency, a separatist movement in
Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to mention only a few. The documented
history of the efforts of the Marcoses and their followers to destabilize the country, as earlier
narrated in thisponenciabolsters the conclusion that the return of the Marcoses at this time
would only exacerbate and intensify the violence directed against the State and instigate more
chaos. As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by particular
groups. But it is the catalytic effect of the return of the Marcoses that may prove to be the
proverbial final straw that would break the camels back. With these before her, the President
cannot be said to have acted arbitrarily and capriciously and whimsically in determining that
the return of the Marcoses poses a serious threat to the national interest and welfare and in
prohibiting their return.
FERNAN, C.J., Concurring

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

Political Law; The President; The Judiciary; Power of Judicial Review; Political Question; For a
political question to exist, there must be in the Constitution a power exclusively vested in the
President or Congress, the exercise of which the courts should not examine or prohibit. The
issue as to the propriety of the Presidents decision to prohibit the Marcoses from returning is
not a political question.The most often quoted definition of political question was made by
Justice William J. Brennan, Jr., who penned the decision of the United States Supreme Court in
Baker v. Carr (369 US 186, 82 S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political
question as formulated in Baker v. Carr are: It is apparent that several formulations which vary
slightly according to the settings in which the questions arise may describe a political question,
which identifies it as essentially a function of the separation of powers. Prominent on the
surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion; or
the impossibility of a courts undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or potentiality of embarassment from
multifarious pronouncements by various departments on one question. For a political question
to exist, there must be in the Constitution a power vested exclusively in the President or
Congress, the exercise of which the court should not examine or prohibit. A claim of plenary or
inherent power against a civil right which claim is not found in a specific provision is
dangerous. Neither should we validate a roving commission allowing public officials to strike
where they please and to override everything which to them represents evil. The entire
Government is bound by the rule of law. The respondents have not pointed to any provision of
the Constitution which commits or vests the determi-
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nation of the question raised to us solely in the President.
Same; Same; Bill of Rights; Liberty of Abode; The liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of the court, not
of an executive officer, not even the President.Section 6 of the Bill of Rights states
categorically that the liberty of abode and of changing the same within the limits prescribed by
law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even
by the President. Section 6 further provides that the right to travel, and this obviously includes
the right to travel out of or back into the Philippines, cannot be impaired except in the interest
of national security, public safety, or public health, as may be provided by law.
Same; Same; Same; Same; The Court has the last word when it comes to Constitutional
liberties.There is also no disrespect for a Presidential determination if we grant the petition.
We would simply be applying the Constitution, in the preservation and defense of which all of
us in Government, the President and Congress included, are sworn to participate. Significantly,
the President herself has stated that the Court has the last word when it comes to constitutional
liberties and that she would abide by our decision.
Same; The Judiciary; Judicial Power; Political Questions; The constitutional provision defining
judicial power was enacted to preclude the Court from using the political question doctrine as a
means to avoid controversial issues.The second paragraph of Section 1, Article VIII of the
Constitution provides: Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. This new
provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing
to the President or Congress, inordinately unpopular, or which may be ignored and not
enforced. The framers of the Constitution believed that the free use of the political question
doctrine allowed the Court during the Marcos years to fall back on prudence, institutional
difficulties, complexity of issues, momentousness of consequences or a fear that it was
extravagantly extending judicial power in the cases where it refused to examine and strike
down an exercise of authoritarian power. Parenthetically, at least two of the respondents and
their counsel were among the most vigorous
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critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to the political question doctrine.
We are compelled to decide what would have been non-justiceable under our decisions
interpreting earlier fundamental charters. This is not to state that there can be no more political
questions which we may refuse to resolve. There are still some political questions which only
the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not one of
them.
Same; Same; Bill of Rights; Liberty of Abode; Right to Travel; The right to come home must be
more preferred than any other aspect of the right to travel.With all due respect for the
majority opinion, I disagree with its dictum on the right to travel. I do not think we should
differentiate the right to return home from the right to go abroad or to move around in the
Philippines. If at all, the right to come home must bemore preferred than any other aspect of the
right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators
Benigno Aquino, Jr., Jovito Salonga, and scores of other undesirables and threats to national
security during that unfortunate period which led the framers of our present Constitution not
only to re-enact but to strengthen the declaration of this right. Media often asks, what else is
new? I submit that we now have a freedom loving and humane regime. I regret that the
Courts decision in this case sets back the gains that our country has achieved in terms of
human rights, especially human rights for those whom we do not like or those who are against
us.
Same; Same; Same; Opposition to the government, no matter how odious and disgusting is not
sufficient to deny or ignore a constitutional right.It is indeed regrettable that some followers
of the former President are conducting a campaign to sow discord and to divide the nation.
Opposition to the government no matter how odious or disgusting is, however, insufficient
ground to ignore a constitutional guarantee.
Same; Same; Same; Same; Denial of travel papers is not among the powers granted to the
government; There is no law prescribing exile to a foreign land as a penalty for hurting the
nation.Of course, the Government can act. It can have Mr. Marcos arrested and tried in court.
The Government has more than ample powers under existing law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of
those powers
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because the Bill of Rights says so. There is no law prescribing exile in a foreign land as the
penalty for hurting the Nation.
CRUZ, J., Dissenting

Political Law; Bill of Rights; Petitioner, as a Filipino, is entitled to return to or live or die in his
own country.It is my belief that the petitioner, as a citizen of the Philippines, is entitled to
return to and liveand diein his own country. I say this with a heavy heart but say it
nonetheless. That conviction is not diminished one whit simply because many believe Marcos to
be beneath contempt and undeserving of the very liberties he flouted when he was the absolute
ruler of this land.
Same; Same; Same; The government failed dismally to show that the return of Marcos, dead or
alive, would pose a threat to national security.In about two hours of briefing, the government
failed dismally to show that the return of Marcos dead or alive would pose a threat to the
national security as it had alleged. The fears expressed by its representatives were based on
mere conjectures of political and economic destabilization without any single piece of concrete
evidence to back up their apprehensions. Amazingly, however, the majority has come to the
conclusion that there exist factual bases for the Presidents decision to bar Marcoss return.
That is not my recollection of the impressions of the Court after that hearing.
Same; Same; Same; Marcos is entitled to the same right to travel and liberty of abode that
Aquino then invoked.Like the martyred Ninoy Aquino who also wanted to come back to the
Philippines against the prohibitions of the government then, Marcos is entitled to the same right
to travel and the liberty of abode that his adversary invoked. These rights are guaranteed by the
Constitution to allindividuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
PARAS, J., Dissenting

Political Law; Bill of Rights; Right to Travel; The former President, as a Filipino citizen, has the
right to return to his own country, except only if prevented by the demands of national safety
and national security.There is no dispute that the former President is still a Filipino citizen
and both under the Universal Declaration of Human Rights and the 1987 Constitution of the
Philippines, he has the right to return to his own country exceptonly if prevented by the
demands
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of national safety and national security. Our Armed Forces have failed to prove this danger.
They are bereft of hard evidence, and all they can rely on is sheer speculation. True, there is
some danger but there is no showing as to the extent.
PADILLA, J., Dissenting

Political Law; Bill of Rights; Right to Travel; Police Power; With or without restricting
legislation, the right to travel may be impaired or restricted in the interest of national security,
public safety and public health; Power of the state to restrict the right to travel finds abundant
support in police power.Petitioners contend that, in the absence of restricting legislation, the
right to travel is absolute. I do not agree. It is my view that, with or without restricting
legislation, the interest of national security, public safety or public health can justify and even
require restrictions on the right to travel, and that the clause as may be provided by law
contained in Article III, Section 6 of the 1987 Constitution merely declares a constitutional leave
or permission for Congress to enact laws that may restrict the right to travel in the interest of
national security, public safety or public health. I do not, therefore, accept the petitioners
submission that, in the absence of enabling legislation, the Philippine Government is powerless
to restrict travel even when such restriction is demanded by national security, public safety or
public health. The power of the State, in particular cases, to restrict travel of its citizens finds
abundant support in the police power of the State, which may be exercised to preserve and
maintain government as well as promote the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Same; Same; Same; The government failed to present convincing evidence to defeat Marcos
right to return to this country.I have given these questions a searching examination. I have
carefully weighed and assessed the briefing given the Court by the highest military
authorities of the land last 28 July 1989. I have searched, but in vain, for convincing evidence
that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It
appears to me that the apprehensions entertained and expressed by the respondents, including
those conveyed through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than real, obsessive rather
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than factual. Moreover, such apprehensions even if translated into realities, would be under
control, as admitted to the Court by said military authorities, given the resources and facilities
at the command of government. But, above all, the Filipino people themselves, in my opinion,
will know how to handle any situation brought about by a political recognition of Mr. Marcos
right to return, and his actual return, to this country. The Court, in short, should not accept
respondents general apprehensions, concerns and perceptions at face value, in the light of a
countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted
by a Filipino.
SARMIENTO, J., Dissenting

Political Law; Bill of Rights; Right to Travel; The right to return to ones own country cannot be
distinguished from the right to travel and freedom of abode.I also find quite strained what
the majority would have as the real issues facing the Court: The right to return to ones
country, pitted against the right of travel and freedom of abode, and their supposed
distinctions under international law, as if such distinctions under international law, in truth and
in fact exist. There is only one right involved here, whether under municipal or international
law: the right of travel, whether within ones own country, or to another, and the right to return
thereto. The Constitution itself makes no distinctions; let, then, no one make a distinction. Ubi
lex non distinguit, nec nos distinguere debemus.
Same; The President; Bill of Rights; While the President may exercise powers not expressly
granted by the Constitution but may necessarily be implied therefrom, the latter must yield to
the paramountcy of the Bill of Rights.While the Chief Executive exercises powers not found
expressly in the Charter, but has them by constitutional implication, the latter must yield to the
paramountcy of the Bill of Rights. According to Fernando: A regime of constitutionalism is
thus unthinkable without an assurance of the primacy of a bill of rights. Precisely a constitution
exists to assure that in the discharge of the governmental functions, the dignity that is the
birthright of every human being is duly safeguarded. To be true to its primordial aim, a
constitution must lay down the boundaries beyond which lies forbidden territory for state
action. My brethren have not demonstrated, to my satisfaction, how the President may
override the direct mandate of the fundamental law. It will not suffice, so I submit, to say that
the Presidents plenitude of powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. Clearly, so I borrow J.B.L. Reyes,
in his own right, a
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titan in the field of public law, this argument . . . rests . . . not upon the text of the
[Constitution] . . . but upon a mere inference therefrom, For if it were, indeed, the intent of the
Charter to create an exception, that is, by Presidential action, to the right of travel or liberty of
abode and of changing the sameother than what it explicitly says already (limits prescribed
by law or upon lawful order of the court)the Charter could have specifically declared so.
As it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial
mandate. Had the Constitution intended a third exception, that is, by Presidential initiative, it
could have so averred. It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial, and executive processes.
Same; Same; Same; Same; Same; Under the new Constitution, the right to travel may be
impaired only within the limits provided by law; The President has been divested of the
implied power to impair the right to travel.Obviously, none of the twin legal bars exist. There
is no law banning the Marcoses from the country; neither is there any court decree banishing
him from Philippine territory. It is to be noted that under the 1973 Constitution, the right to
travel is worded as follows: Sec. 5. The liberty of abode and of travel shall not be impaired
except upon lawful order of the court, or when necessary in the interest of national security,
public safety, or public health. Under this provision, the right may be abated: (1) upon a lawful
court order, or (2) when necessary in the interest of national security, public safety, or public
health. Arguably, the provision enabled the Chief Executive (Marcos) to moderate movement
of citizens, which, Bernas says, justified such practices as hamletting, forced relocations, or
the establishment of free-fire zones. The new Constitution, however, so it clearly appears, has
divested the Executives implied power. And, as it so appears, the right may be impaired only
within the limits provided by law. The President is out of the picture.
Same; Same; Same; Same; The determination of whether Marcos return poses a threat to
national security should not be left solely to the Chief Executive, the Court itself must be
satisfied that the threat is not only clear but also present.Admittedly, the Chief Executive is
the sole judge of all matters affecting national security and foreign affairs; the Bill of Rights
precisely, a form of check against excesses of officialdomis, in this case, a formidable barrier
against Presidential action. (Even on matters of State security, this Constitution prescribes limits
to Executives powers as commander-in-chief.) Second: Assuming, ex hypothesi, that the
President may legally act, the
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question that emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a
threat to the national security, public safety, or public health? What appears in the records are
vehement insistences that Marcos does pose a threat to the national goodand 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.
CORTS, J.:

Before the Court is a controversy of grave national importance. While ostensibly only legal
issues are involved, the Courts decision in this case would undeniably have a profound effect
on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the
non-violent people power revolution and forced into exile. In his stead, Corazon C. Aquino
was declared President of the Republic under a revolutionary government. Her ascension to
and consolidation of power have not been unchallenged. The failed Manila Hotel coup in 1986
led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel
troops led by Col. Canlas with the support of Marcos loyalists and the unsuccessful plot of
the Marcos spouses to surreptitiously return from Hawaii with mercenaries aboard an aircraft
chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to
the capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind
loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the
victory of people power and also clearly reinforced the constitutional moorings of Mrs.
Aquinos presidency. This did not, however, stop bloody challenges to the government. On
August 28, 1987, Col. Gregorio Honasan, one of the major players in the February Revolution,
led a failed coup that left scores of people, both combatants and civilians, dead. There were
several other armed sorties of lesser significance, but the message they con-
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veyed was the samea split in the ranks of the military establishment that threatened civilian
supremacy over the military and brought to the fore the realization that civilian government
could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements in the
military establishment and among rabid followers of Mr. Marcos. There were also the
communist insurgency and the secessionist movement in Mindanao which gained ground
during the rule of Mr. Marcos, to the extent that the communists have set up a parallel
government of their own in the areas they effectively control while the separatists are virtually
free to move about in armed bands. There has been no let up in these groups determination to
wrest power from the government. Not only through resort to arms but also through the use of
propaganda have they been successful in creating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated. The
efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to show
concrete results in alleviating the poverty of the masses, while the recovery of the ill-gotten
wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philippines to die. But
Mrs. Aquino, considering the dire consequences to the nation of his return at a time when the
stability of government is threatened from various directions and the economy is just beginning
to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and
his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office
and into exile after causing twenty years of political, economic and social havoc in the country
and who within the short space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Court to order the respondents to issue
travel documents to Mr. Marcos
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and the immediate members of his family and to enjoin the implementation of the Presidents
decision to bar their return to the Philippines.
The Issue
The issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the
following issues:
1.Does the President have the power to bar the return of former President Marcos and his
family to the Philippines?
a.Is this a political question?
2.Assuming that the President has the power to bar former President Marcos and his family
from returning to the Philippines, in the interest of national security, public safety or public
health
a.Has the President made a finding that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety or public health?
b.Assuming that she has made that finding,
(1)Have the requirements of due process been complied with in making such finding?
(2)Has there been prior notice to petitioners?
(3)Has there been a hearing?
(4)Assuming that notice and hearing may be dispensed with, has the Presidents decision,
including the grounds upon which it was based, been made known to petitioners so that they
may controvert the same?
c.Is the Presidents determination that the return of for-mer President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety, or public health
a political question?
d.Assuming that the Court may inquire as to whether the return of former President Marcos
and his family is a clear and present danger to national security, public safety, or public health,
have respondents established such fact?
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3.Have the respondents, therefore, in implementing the Presidents decision to bar the return of
former President Marcos and his family, acted and would be acting without jurisdiction, or in
excess of jurisdiction, or with grave abuse of discretion, in performing any act which would
effectively bar the return of former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.]
The case for petitioners is founded on the assertion that the right of the Marcoses to return to
the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
x x x
Section 6 .The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the
Marcoses because only a court may do so within the limits prescribed by law. Nor may the
President impair their right to travel because no law has authorized her to do so. They advance
the view that before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his
family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1)Everyone has the right to freedom of movement and residence within the borders
of each state.
(2)Everyone has the right to leave any country, including his own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by
the Philippines, provides:
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Article 12

1)Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2)Everyone shall be free to leave any country, including his own.
3)The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
4)No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents principal argument is that the issue in this case involves a
political question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E.
Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at
this time in the face of the determination by the President that such return and residence will
endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political question as
it involves merely a determination of what the law provides on the matter and application
thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with
the more primordial and transcendental right of the State to security and safety of its nationals,
the question becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and
reestablish their residence here? This is clearly a justiciable question which this Honorable
Court can decide.
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Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and
reestablish their residence here even if their return and residence here will endanger national
security and public safety? This is still a justiciable question which this Honorable Court can
decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and
family shall return to the Philippines and establish their residence here? This is now a political
question which this Honorable Court can not decide for it falls within the exclusive authority
and competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual
rights. In support thereof, they cite Article II of the Constitution, to wit:
Section 4.The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal, military, or
civil service.
Section 5.The maintenance of peace and order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and his family from returning to
the Philippines for reasons of national security and public safety has international precedents.
Rafael Trujillo of the Dominican Republic, Anastacio Somoza, Jr. of Nicaragua, Jorge Ubico of
Guatemala, Fulgencio Batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez
of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators
whose return to their homelands was prevented by their governments. [See Statement of
Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-
32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power
and its limits. We, however, view this issue in a different light. Although we give due weight to
the parties formulation of the issues, we are not bound by its
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narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of the
right to travel and the import of the decisions of the U.S. Supreme Court in the leading cases of
Kent v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101
SCt. 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to the
exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel
would normally connote. Essentially, the right involved is the right to return to ones 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 ones country as separate and
distinct rights. The Declaration speaks of the right to freedom of movement and residence
within the borders of each state [Art. 13(1)] separately from the right to leave any country,
including his own, and to return to his country. [Art. 13(2).] On the other hand, the Covenant
guarantees the right to liberty of movement and freedom to choose his residence [Art. 12(1)]
and the right to be free to leave any country, including his own. [Art. 12(2)] which rights may
be restricted by such laws as are necessary to protect national security, public order, public
health or morals or the separate rights and freedoms of others. [Art. 12(3)] as distinguished
from the right to enter his own country of which one cannot be arbitrarily deprived. [Art.
12(4).] It would therefore be inappropriate to construe the limitations to the right to return to
ones country in the same context as those pertaining to the liberty of abode and the right to
travel.
The right to return to ones country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel, but it is our
wellconsidered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of
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the Constitution.] However, it is distinct and separate from the right to travel and enjoys a
different protection under the International Covenant of Civil and Political Rights, i.e.,against
being arbitrarily deprived thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig,which refer to the issuance of passports for the
purpose of effectively exercising the right to travel are not determinative of this case and are
only tangentially material insofar as they relate to a conflict between executive action and the
exercise of a protected right. The issue before the Court is novel and without precedent in
Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be
limitations on the right to travel in the absence of legislation to that effect is rendered
unnecessary. An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered approach.
We shall first resolve whether or not the President has the power under the Constitution, to bar
the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII, Section 1, whether or not the
President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of
jurisdiction when she determined that the return of the Marcoses to the Philippines poses a
serious threat to national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil.
139 (1936)], the Constitution has blocked but with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. [At
157.] Thus, the 1987 Constitution explicitly provides that [t]he legislative power shall be vested
in the Congress of the Philippines [Art. VI, Sec. 1], [t]he executive power shall be
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vested in the President of the Philippines [Art. VII, Sec. 1], and [t]he judicial power shall be
vested in one Supreme Court and in such lower courts as may be established by law [Art. VIII,
Sec. 1.] These provisions not only establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers
subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626 (1910)] pointed out a grant of the legislative power means a grant of all
legislative power; and a grant of the judicial power means a grant of all the judicial power
which may be exercised under the government. [At 631-632.] If this can be said of the
legislative power which is exercised by two chambers with a combined membership of more
than two hundred members and of the judicial power which is vested in a hierarchy of courts, it
can equally be said of the executive power which is vested in one officialthe President.
As stated above, the Constitution provides that [t]he executive power shall be vested in the
President of the Philippines. [Art. VII, Sec. 1]. However, it does not define what is meant by
executive power although in the same article it touches on the exercise of certain powers by
the President, i.e.,the power of control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers under the commander-in-chief
clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty
with the concurrence of Congress, the power to contract or guarantee foreign loans, the power
to enter into treaties or international agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Secs. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the
framers of the Constitution intend that the President shall exercise those specific powers and no
other? Are these enumerated powers the breadth and scope of executive power? Petitioners
advance the view that the Presidents powers are limited to those specifically enumerated in the
1987 Constitution. Thus, they assert: The President has enumerated powers, and what is not
enumerated is impliedly denied to her. Inclusio unius est exclusio alterius.
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[Memorandum for Petitioners, p. 4; Rollo p. 233.] This argument brings to mind the institution
of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the
same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same token,
to those who think that constitution makers ought to leave considerable leeway for the future
play of political forces, it should be a vision realized.
We encounter this characteristic of Article II in its opening words: The executive power shall
be vested in a President of the United States of America. x x x. [The President: Office and
Powers, 1787-1957,pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who
held the office from Washington to the early 1900s, and the swing from the presidency by
commission to Lincolns dictatorship, he concluded that what the presidency is at any
particular moment depends in important measure on who is President. [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. It remained, of course, an
agency of government subject to unvarying demands and duties no matter who was President.
But, more than most agencies of government, it changed shape, intensity and ethos according to
the man in charge. Each Presidents distinctive temperament and character, his values,
standards, style, his habits, expectations, idiosyncrasies, compulsions, phobias recast the White
_______________

** The Philippine presidency under the 1935 Constitution was patterned in large measure after
the American presidency. But at the outset, it must be pointed out that the Philippine
government established under the constitutions of 1935, 1973 and 1987 is a unitary government
with general powers unlike that of the United States which is a federal government with limited
and enumerated powers. Even so, the powers of the president of the United States have through
the years grown, developed and taken shape as students of that presidency have demonstrated.
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House and pervaded the entire government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the President. The thrust of the
office, its impact on the constitutional order, therefore altered from President to President.
Above all, the way each President understood it as his personal obligation to inform and
involve the Congress, to earn and hold the confidence of the electorate and to render an
accounting to the nation and posterity determined whether he strengthened or weakened the
constitutional order. [At 212-213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather,
that the consideration of tradition and the development of presidential power under the
different constitutions are essential for a complete understanding of the extent of and
limitations to the Presidents 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 countrys foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on
the exercise of specific powers of the President, it maintains intact what is traditionally
considered as within the scope of executive power. Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In
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other words, executive power is more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither legislative
nor judicial has to be executive. Thus, in the landmark decision of Springer v. Government of
the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General
of the Philippines and the Legislature may vote the shares of stock held by the Government to
elect directors in the National Coal Company and the Philippine National Bank, the U.S.
Supreme Court, in upholding the power of the Governor-General to do so, said:
... Here the members of the legislature who constitute a majority of the board and
committee respectively, are not charged with the performance of any legislative functions or
with the doing of anything which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the duties devolved upon these
members are vested by the Organic Act in the Governor-General, it is clear that they are not
legislative in character, and still more clear that they are not judicial. The fact that they do not
fall within the authority of either of these two constitutes logical ground for concluding that
they do fall within that of the remaining one among which the powers of government are
divided. . . . [At 202-203; italics supplied.]
We are not unmindful of Justice Holmes strong dissent. But in his enduring words of dissent
we find reinforcement for the view that it would indeed be a folly to construe the powers of a
branch of government to embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and white.
Even the more specific of them are found to terminate in a penumbra shading gradually from
one extreme to the other. x x x.
x x x
It does not seem to need argument to show that however we may disguise it by veiling words
we do not and cannot carry out the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight compartments, were it ever so
desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At
210-211.]
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The Power Involved
The Constitution declares among the guiding principles that [t]he prime duty of the
Government is to serve and protect the people and that [t]he maintenance of peace and order,
the protection of life, liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of democracy. [Art. II, Secs. 4 and
5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are essentially
ideals to guide governmental action. But such does not mean that they are empty words. Thus,
in the exercise of presidential functions, in drawing a plan of government, and in directing
implementing action for these plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these principles, among other things,
and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common good. Hence, lest
the officers of the Government exercising the powers delegated by the people forget and the
servants of the people become rulers, the Constitution reminds everyone that [s]overeignty
resides in the people and all government authority emanates from them. [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the
country are the deposed dictator and his family at whose door the travails of the country are
laid and from whom billions of dollars believed to be illgotten wealth are sought to be
recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For the
exercise of even the preferred freedoms of speech and of
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expression, although couched in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1988].
To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the Presidents
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power
of the President but also his duty to do anything not forbidden by the Constitution or the laws
that the needs of the nation demand [SeeCorwin,supra,at 153]. It is a power borne by the
Presidents duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the Presidents duty to take care that the laws are faithfully executed [seeHyman,
The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the Presidents 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
Presidents exercising as Commander-in-Chief powers short of the calling of the armed forces,
or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to
keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcoses from returning has
been recognized by mem-
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bers of the Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to
return to the Philippines as a genuine unselfish gesture for true national reconciliation and as
irrevocable proof of our collective adherence to uncompromising respect for human rights
under the Constitution and our laws. [House Resolution No. 1342, Rollo, p. 321.] The
Resolution does not question the Presidents power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the Presidents 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 Courts jurisdiction the determination of which is exclusively for the President, for
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Congress or for the people themselves through a plebiscite or referendum. We cannot, for
example, question the Presidents recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set aside a presidential pardon
though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we
amend the Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political
question doctrine. The deliberations of the Constitutional Commission cited by petitioners show
that the framers intended to widen the scope of judicial review but they did not intend courts of
justice to settle all actual controversies before them. When political questions are involved, the
Constitution limits the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned. If grave abuse is not established, the Court will not substitute its judgment for
that of the official concerned and decide a matter which by its nature or by law is for the latter
alone to decide. In this light, it would appear clear that the second paragraph of Article VIII,
Section 1 of the Constitution, defining judicial power, which specifically empowers the courts
to determine whether or not there has been a grave abuse of discretion on the part of any
branch or instrumentality of the government, incorporates in the fundamental law the ruling in
Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 448] that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege
of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation
of powers underlying our system of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the Constitution, is not absolute. What is
more, it goes hand in hand with the system of checks and balances, under which the Executive
is supreme, as regards the suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme.
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In the exercise of such authority, the function of the Court is merely to checknot 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 Presidents decision.
The Court cannot close its eyes to present realities and pretend that the country is not besieged
from within by a wellorganized communist insurgency, a separatist movement in Mindanao,
rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men,
police officers and civilian officials, to mention only a few. The documented history of the
efforts of the Marcoses and their followers to destabilize the country, as earlier narrated in this
ponencia bolsters the conclusion that the return of the Marcoses at this time would only
exacerbate and intensify the violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular groups.
But it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial
final straw that would break the camels 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.
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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 Statethe fruition of the peoples sovereigntyis an obligation in the
highest order. The President, sworn to preserve and defend the Constitution and to see the
faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the
hardships brought about by the plunder of the economy attributed to the Marcoses and their
close associates and relatives, many of whom are still here in the Philippines in a position to
destabilize the country, while the Government has barely scratched the surface, so to speak, in
its efforts to recover the enormous wealth stashed away by the Marcoses in foreign
jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the
economy by the excessive foreign borrowing during the Marcos regime, which stifles and
stagnates development and is one of the root causes of widespread poverty and all its attendant
ills. The resulting precarious state of our economy is of common knowledge and is easily within
the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses
would wipe away the gains achieved during the past few years and lead to total economic
collapse. Given what is within our individual and common knowledge of the state of the
economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former President
Marcos and his family at the present time and under present circumstances poses a serious
threat to national interest and welfare and in prohibiting their return to the Philippines, the
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instant petition is hereby DISMISSED.
SO ORDERED.
Narvasa, Melencio-Herrera, Gancayco, Grio-Aquino, Me-dialdea and Regalado, JJ., concur.
Fernan, C.J., See separate concurring opinion.
Gutierrez, Jr., Cruz, Padilla and Sarmiento, JJ., See dissent.
Paras, J., I dissent in a separate opinion.
Feliciano, J., On leavevoted to grant petition when the case was deliberated upon.
Bidin, J., I join in the dissent of Mr. Justice Hugo Gutierrez, Jr.
FERNAN, C.J., Concurring Opinion

The threats to national security and public order are realthe mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor disputes,
militant farmer groups. x x x. Each of these threats is an explosive ingredient in a steaming
cauldron which could blow up if not handled properly.1
These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice
Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the
exhaustive and well-written ponenciaof Mme. Justice Irene R. Corts.
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
_______________

1 From the speech Restrictions on Human RightsStates of Emergency, National Security,
Public Safety and Public Order delivered at the Lawasia Seminar on Human Rights, Today and
Tomorrow: The Role of Human Rights Commissions and Other Organs, at the Manila Hotel on
August 27, 1988.
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conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: residual, inherent, moral,
implied, aggregate, emergency. Whatever they may be called, the fact is that these
powers exist, as they must if the governance function of the Executive Branch is to be carried
out effectively and efficiently. It is in this context that the power of the President to allow or
disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on
national peace and order in these admittedly critical times, said question cannot be withdrawn
from the competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear
and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist
groups during the EDSA Revolutions aftermath to realize this. The most publicized of these
offensives is the Manila Hotel incident which occurred barely five (5) months after the Peoples
Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by
Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel
to witness the oath-taking of Arturo Tolentino as acting president of the Philippines. The public
disorder and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila and
Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio station
DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group struck at
Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy
hostage. Troops on board several vehicles attempted to enter Gate 1 of Camp Aguinaldo even
as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced
their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having
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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 NPAs, 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
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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 peoples 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 individuals wish to die in his own country. Verily in the balancing of interests, the scales
tilt in favor of presidential prerogative, which we do not find to have been gravely abused or
arbitrarily exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., Dissenting Opinion

The Constitution xxx is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all circumstances. No
doctrine involving more pernicious consequences was ever invented by the wit of man than
that any of its provisions can be suspended during any of the great exigencies of government.
(Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as
self-evident truth. But faced with a hard and delicate case, we now hesitate to give substance to
their meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be
taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same guarantee
of freedom for both unloved and despised persons on one hand and the rest who are not so
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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
provided by law. (Italics supplied, Section 6, Art. III, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the occasions
for its exercise. And except for citing breaches of law and order, the more serious of which were
totally unrelated to Mr. Marcos and which the military was able to readily quell, the
respondents have not pointed to any grave exigency which permits the use of untrammeled
Governmental power in this case and the indefinite suspension of the constitutional right to
travel.
The respondents basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They
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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 Presidents finding of danger to
the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
x x x x x x x x x
It is a well-settled doctrine that political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred on the courts by
express constitutional or statutory provisions. It is not so easy, however, to define the phrase
political question, nor to determine what matters fall within its scope. It is frequently used to
designate all questions that lie outside the scope of the judicial power. More properly, however,
it means those questions which, under the constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government.
We defined a political question in Taada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term political question connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum (supra), it refers to those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government. It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice William J. Brennan,
Jr., who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,
82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in
Baker v. Carrare:
It is apparent that several formulations which vary slightly according to the settings in which
the questions arise may describe a
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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 courts undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or potentiality of embarassment from
multifarious pronouncements by various departments on one question.
For a political question to exist, there must be in the Constitution a power vested exclusively in
the President or Congress, the exercise of which the court should not examine or prohibit. A
claim of plenary or inherent power against a civil right which claim is not found in a specific
provision is dangerous. Neither should we validate a roving commission allowing public
officials to strike where they please and to override everything which to them represents evil.
The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests
the determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has
been enacted specifying the circumstances when the right may be impaired in the interest of
national security or public safety. The power is in Congress, not the Executive.
The closest resort to a textually demonstrable constitutional commitment of power may be
found in the commander-in-chief clause which allows the President to call out the armed forces
in case of lawless violence, invasion or rebellion and to suspend the privilege of the writ of
habeas corpus or proclaim martial law in the event of invasion or rebellion, when the public
safety requires it.
There is, however, no showing, not even a claim that the followers of former President Marcos
are engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there
is a need to suspend the privilege of the writ of habeas
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corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure,
there may be disturbances but not of a magnitude as would compel this Court to resort to a
doctrine of non-justiceability and to ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hardpressed to state who or what constitutes a Marcos
loyalist. The constant insinuations that the loyalist group is heavily funded by Mr. Marcos
and his cronies and that the loyalists engaging in rallies and demonstrations have to be paid
individual allowances to do so constitute the strongest indication that the hard core loyalists
who would follow Marcos right or wrong are so few in number that they could not possibly
destabilize the government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a loyalist. It is in
the best of Filipino customs and traditions to allow a dying person to return to his home and
breath his last in his native surroundings. Out of the 103 Congressmen who passed the House
resolution urging permission for his return, there are those who dislike Mr. Marcos intensely or
who suffered under his regime. There are also many Filipinos who believe that in the spirit of
national unity and reconciliation Mr. Marcos and his family should be permitted to return to the
Philippines and that such a return would deprive his fanatic followers of any further reason to
engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of
the constitutional guarantee of liberty of abode and the citizens right to travel as against the
respondents contention that national security and public safety would be endangered by a
grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which
stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the
same within the limits prescribed by law may be impaired only upon a lawful order of a
court.Not by an executive officer. Not even by the President. Section 6 further provides that the
right to travel, and this
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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 citizens 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 Generalimmigration, health, quarantine,
passports, motor vehicle, destierro, probation, and paroleare 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 regimethe 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
countrys 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
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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 doctrines use was such that when the present Constitution was drafted, a
broad definition of judicial power was added to the vesting in the Supreme Court and statutory
courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political question
doctrine as a means to avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress, inordinately unpopular, or which may
be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and strike down an exercise
of authoritarian power. Parenthetically, at least two of the respondents and their counsel were
among the most vigorous critics of Mr. Marcos (the main petitioner) and his use of the political
question doctrine. The Constitution was accordingly amended. We are now precluded by its
mandate from refusing to invalidate a political use of power through a convenient resort to the
political question doctrine. We are compelled to decide what would have been non-justiceable
under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to resolve.
There are still some political questions which only the President, Congress, or a plebiscite may
decide. Definitely, the issue before us is not one
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of them.
The Constitution requires the Court to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction.
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations
of national security do not readily lend themselves to the presentation of proof before a court of
justice. The vital information essential to an objective determination is usually highly classified
and it cannot be rebutted by those who seek to overthrow the government. As early as Barcelon
v. Baker (5 Phil. 87, 93 [1905]), the Court was faced with a similar situation. It posed a rhetorical
question. If after investigating conditions in the Archipelago or any part thereof, the President
finds that public safety requires the suspension of the privilege of the writ of habeas corpus, can
the judicial department investigate the same facts and declare that no such conditions exist?
In the effort to follow the grave abuse of discretion formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor Generals offer that the
military give us a closed door factual briefing with a lawyer for the petitioners and a lawyer for
the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in
Morales, Jr. v. Enrile, (121 SCRA 538, 592 [1983]):
How can this Court determine the factual basis in order that it can ascertain whether or not the
president acted arbitrarily in suspending the writ when, in the truthful words of Montenegro,
with its very limited machinery [it] cannot be in better position [than the Executive Branch] to
ascertain or evaluate the conditions prevailing in the Archipelago? (At p. 887). The answer is
obvious. It must rely on the Executive Branch which has the appropriate civil and military
machinery for the facts. This was the method which had to be used in Lansang. This Court
relied heavily on classified information supplied by the military. Accordingly, an incongruous
situation obtained. For this Court, relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the Executive Branch supplied
information to support its position and this
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Court was in no situation to disprove them. It was a case of the defendant judging the suit.
After all is said and done, the attempt by this Court to determine whether or not the President
acted arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and refrain
from giving the seal of approval to the act of the Executive Branch. For it is possible that the
suspension of the writ lacks popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the
facts given to it by the Executive Branch) it in effect participates in the decision-making process.
It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an
unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be
the only basis for determining the clear and present danger to national security and public
safety. The majority of the Court has taken judicial notice of the Communist rebellion, the
separatist movement, the rightist conspiracies, and urban terrorism. But is it fair to blame the
present day Marcos for these incidents? All these problems are totally unrelated to the Marcos
of today and, in fact, are led by people who have always opposed him. If we use the problems
of Government as excuses for denying a persons right to come home, we will never run out of
justifying reasons. These problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to
ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we
forced to fall back upon judicial notice of the implications of a Marcos return to his home to
buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and
present danger to national security and public safety will arise if Mr. Marcos and his family are
allowed to return to the Philippines. It was only after the present petition was filed that the
alleged danger to national security and public safety conveniently surfaced in the respondents
pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to
(1) national welfare and interest and (2) the continuing need to preserve the gains achieved in
terms of recovery and stability. (See page 7,
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respondents Comment at page 73 of Rollo). Neither ground satisfies the criteria of national
security and public safety. The President has been quoted as stating that the vast majority of
Filipinos support her position. (The Journal, front page, January 24, 1989) We cannot validate
her stance simply because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The Presidents original position
that it is not in the interest of the nation that Marcos be allowed to return at this time has not
changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President is
reported to have stated that considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past three years in justifying her
firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front
page, February 15, 1989). Interest of the nation, national good, and preserving economic
and political gains, cannot be equated with national security or public order. They are too
generic and sweeping to serve as grounds for the denial of a constitutional right. The Bill of
Rights commands that the right to travel may not be impaired except on the stated grounds of
national security, public safety, or public health and with the added requirement that such
impairment must be as provided by law. The constitutional command cannot be negated by
mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples Army. Feeding as
it does on injustice, ignorance, poverty, and other aspects at underdevelopment, the Communist
rebellion is the clearest and most present danger to national security and constitutional
freedoms. Nobody has suggested that one way to quell it would be to catch and exile its leaders,
Mr. Marcos himself was forced to flee the country because of peoples power. Yet, there is no
move to arrest and exile the leaders of student groups, teachers organizations, peasant and
labor federations, transport workers, and government unions whose threatened mass actions
would definitely endanger national security and the stability of government. We fail to see how
Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard
core loyalists, and other
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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 tomorrows pariahs? I deeply regret that the Courts 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 Generals argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose ones abode has constrained the President
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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
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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 Courts 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 askedIs the Government
helpless to defend itself against a threat to national security? Does the President have to
suspend the privilege of the writ of habeas corpus or proclaim martial law? Can she not take
less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under existing law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of
those powers because the Bill of Rights says so. There is no law prescribing exile in a foreign
land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., Dissenting Opinion

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live
and diein his own
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country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished
one whit simply because many believe Marcos to be beneath contempt and undeserving of the
very liberties he flouted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor can
we resolve it. The question we must answer is whether or not, assuming that Marcos is
permitted to leave Hawaii (which may depend on the action we take today), the respondents
have acted with grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to
offer, but could not, that the petitioners 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 Presidents decision to bar Marcoss 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
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rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Blacks 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 EDSAagainst the threat of total massacrein 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.
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PARAS, J., Dissenting Opinion

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be
also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he have the
right to return to his own country?; and should national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the
right to return to his own country except only if prevented by the demands of national safety
and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all
they can rely on is sheer speculation. True, there is some danger but there is no showing as to
the extent.
It is incredible that one man alone together with his family, who had been ousted from this
country by popular will, can arouse an entire country to rise in morbid sympathy for the cause
he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the
members of his family be under house arrest in his hometown in Ilocos Norte, and should
President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for
national discipline, and for human compassion.
PADILLA, J., Dissenting Opinion

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between
the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right
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of the Philippine Government to bar such return in the interest of national security and public
safety. In this context, the issue is clearly justiciable involving, as it does, colliding assertions of
individual right and governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto Concepcion,
incorporated in the 1987 Constitution, the new provision on the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable,and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. Article VIII, Section 1, par. 2; (italics supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to
travel which, in the language of the Constitution, shall not be impaired except in the interest of
national security, public safety, or public health, as may be provided by law (Art. III, Sec. 6).
That the right to travel comprises the right to travel within the country, to travel out of the
country and to return to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises in the interpretation of
the qualifications attached by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation,the right to travel is absolute. I
do not agree. It is my view that, with or without restricting legislation, the interest of national
security, public safety or public health can justify and even require restrictions on the right to
travel, and that the clause as may be provided by law contained in Article III, Section 6 of the
1987 Constitution merely declares a constitutional leave or permission for Congress to enact
laws that may restrict the right to travel in the interest of national security, public safety or
public health. I do not, therefore, accept the petitioners submission that, in the absence of
enabling legislation, the Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health. The power of the
State, in particu-
719

719
lar cases, to restrict travel of its citizens finds abundant support in the police power of the State,
which may be exercised to preserve and maintain government as well as promote the general
welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as 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. I have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr.
Marcos as a Filipino to return to this country. It appears to me that the apprehensions
entertained and expressed by the respondents, including those conveyed through the military,
do not, with all due respect, escalate to proportions of national security or public safety. They
appear to be more speculative than real, obsessive rather than factual. Moreover, such
apprehensions even if translated into realities, would be under control, as admitted to the
Court by said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will know how to
handle any situation brought about by a political recognition of Mr. Marcos right to return, and
his actual return, to this country. The Court, in short, should not accept respondents general
apprehensions, concerns and perceptions at face value, in the light of a countervailing and even
irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.
_______________

1 In addition, he invokes the right as a basic human right recognized by the Universal
Declaration of Human Rights.
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Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights.2
As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the land,
(Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip service to Art.
13, par. 2 of the Universal Declaration of Human Rights which provides that everyone has the
right to leave any country, including his own, and to return to his country. This guarantee is
reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which
states that no one shall be arbitrarily deprived of the right to enter his own country. (italics
supplied) Arbitrary or arbitrarily was specifically chosen by the drafters of the Covenant3
hoping to protect an individual against unexpected, irresponsible or excessive encroachment on
his rights by the state based on national traditions or a particular sense of justice which falls
short of international law or standards.4
The Solicitor General maintains that because the respondents, as alter egos of the President,
have raised the argument of national security and public safety, it is the duty of this Court
to unquestioningly yield thereto, thus casting the controversy to the realm of a political
question. I do not agree. I believe that this is one case where the human and constitutional right
invoked by one party is so specific, substantial and clear that it cannot be overshadowed, much
less, nullified by simplistic generalities; worse, the Court neglects its duty under the
Constitution when it allows the theory of political question to serve as a convenient, and yet,
lame excuse for evading what,
_______________

2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations:
Underdevelopment, Catastrophies and Armed Conflicts, The International Dimensions of
Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.
3 P. Hassan, The Word Arbitrary as used in the Universal Declaration of Human Rights:
Illegal or Unjust, 10 Harv. Int. L.J., p. 225 (1969).
4 F.C. Newman and K. Vasak, Civil and Political Rights, The International Dimensions of
Human Rights, pp. 135-166.
721

721
to me, is its clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines
in 1983 and, at the same time, credibly deny the right of Mr. Marcos, also a Filipino, to return to
the Philippines in 1989. I still have not found a satisfactory answer to that question. Instead, it
has become clearer by the day that the drama today is the same drama in 1983 with the only
difference that the actors are in opposite roles, which really makes one hope, in the national
interest, that the mistake in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case
1.Mr. Marcos is a Filipino and, as such, entitled to return to,5 die and be buried in this country;
2. respondents have not shown any hard evidence or convincing proof why his right as a
Filipino to return should be denied him. All we have are general conclusions of national
security and public safety in avoidance of a specific demandable and enforceable
constitutional and basic human right to return;
3.the issue of Marcos return to the Philippines, perhaps more than any issue today, requires of
all members of the Court, in what appears to be an extended political contest, the cold
neutrality of an impartial judge. It is only thus that we fortify the independence of this Court,
with fidelity, not to any person, party or group but to the Constitution and only to the
Constitution.
ACCORDINGLY, I vote to GRANT the petition.
_______________

5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States,
is beyond the issues in this case; similarly, as to how the Philippine government should deal
with Mr. Marcos upon his return is also outside of the issues in this case.
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SARMIENTO, J., Dissenting Opinion

I vote to grant the petition.
The only issue that saddles the Court is simply: whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines.1 I therefore take exception to allusions2 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 ones country, pitted against the right of travel and freedom of abode,
and their supposed distinctions under international law, as if such distinctions, under
international law, in truth and in fact exist. There is only one right involved here, whether
under municipal or international law: the right of travel, whether within ones own country, or
to another, and the right to return thereto. The Constitution itself makes no distinctions; let,
then, no one make a distinction. Ubi lex non distinguit, nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the
power to deny a citizen his right to travel (back to the country or to another)? It is a question
that, in essence, involves the application, and no more, of the provisions of the 1987
Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
provided by law.4
_______________

1 Decision, 4.
2 Seesupra,1-4.
3 Supra,2.
4 CONST., art. III, sec. 6.
723

723
The majority says, with ample help from American precedents, that the President is possessed
of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes limitations on
the exercise of specific powers of the President, it maintains intact what is traditionally
considered as within the scope of executive power. Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so enumerated.5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common good. Hence, lest
the officers of the Government exercising the powers delegated by the people forget and the
servants of the people become rulers, the Constitution reminds everyone that [s]overeignty
resides in the people and all government authority emanates from them. [Art. II, Sec. 1.]6
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 Presidents
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power
of the President but also his duty to do anything not forbiden by the Constitution or the laws
that the needs of the nation demanded [See Corwin, supra,at 153]. It is a power borne by the
Presidents duty to preserve and defend the
_______________

5 Decision, supra, 18; emphasis in the original.
6 Supra,20-21.
724

724
Constitution. It also may be viewed as a power implicit in the Presidents duty to take care that
the laws are faithfully executed [See Hyman, The American President, where the author
advances the view that an allowance of discretionary power is unavoidable in any government
and is best lodged in the President].7
I am not persuaded.
I.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has
them by constitutional implication,* the latter must yield to the paramountcy of the Bill of
Rights. According to Fernando: A regime of constitutionalism is thus unthinkable without an
assurance of the primacy of a bill of rights. Precisely a constitution exists to assure that in the
discharge of the governmental functions, the dignity that is the birthright of every human being
is duly safeguarded. To be true to its primordial aim, a constitution must lay down the
boundaries beyond which lies forbidden territory for state action.8
My brethren have not demonstrated, to my satisfaction, how the President may override the
direct mandate of the fundamental law. It will not suffice, so I submit, to say that the Presidents
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 sameother than what it explicitly says already (limits prescribed
by law10 or upon lawful order of the court11)the
_______________

7 Supra,21-22.
* But see Cruz, J., Dissenting.
8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
9 Republic v. Quasha, No. L-30299, August 17, 1972, 46 SCRA 160, 169.
10 CONST.,supra.
11 Supra.
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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 Executives 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 security16
and foreign affairs;17 the Bill of Rightsprecisely, a form of check against excesses of
_______________

12 CONST. (1973), art. IV, sec. 5.
13 Supra.
14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263 (1987
ed.)
15 CONST. (1987), art. III, sec. 6, supra.
16 See supra, art. VII, sec. 18.
17 See Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.
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officialdomis, in this case, a formidable barrier against Presidential action. (Even on matters
of State security, this Constitution prescribes limits to Executives powers as Commanderin-
Chief.)
Second: Assuming,ex hypothesi, that the President may legally act, the question that emerges is:
Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the national
security, public safety, or public health? What appears in the records are vehement insistences
that Marcos does pose a threat to the national goodand 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
_______________

18 See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265, and
34339, December 11, 1971, 42 SCRA 448, 480.
19 Decision,supra, 21.
20 Supra.
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727
surmises of possibilities, has been shown to justify the balancing act referred to. Worse, these
conjectures contradict contentions that as far as Philippine society is concerned, Marcos is
history.
The power of the President, so my brethren declaim, calls for the exercise of the Presidents
power as protector of peace.21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian
rule. It also means that we are no better than he was.
That [t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and
internal threats to its existence,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 Executives powers vis-a-vis its 1973 counterpart.23
II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of this dissent lost a son.** His sons only offense was that he
openly and unabatedly criticized the dictator, his associates, and his military machinery. He
would pay dearly for it; he was arrested and detained, without judicial warrant or decision, for
seven months and seven days. He was held incommunicado a greater part of the time, in the
military stockade of Camp Crame. In his last week in detention, he was, grudgingly,
hospitalized (prison hospital) and confined for chronic asthma. The deplorable conditions of his
imprisonment exacerbated his
_______________

21 Supra.
22 Supra,22.
23 See CONST. (1987), art. VII, sec. 18, supra.
** Abraham (Ditto) Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976),
official student organ of the University of the Philippines. He was detained in the military
stockade for common criminals from January to August, 1976.
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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. Dittos death or my arrest are
scores that can not be settled.
I feel the ex-Presidents 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
_______________

24 SPI No. 79-347 (For: Violation of Presidential Decree No. 90 and Article 142 of the Revised
Penal Code, as amendedThe Judge Advocate Generals Office, AFP), Special Civil Action,
G.R. No. 54180, Diosdado Macapagal, Rogaciano M. Mercado, Manuel A. Concordia, and
Abraham F. Sarmiento, Petitioners, vs. The Preliminary Investigating Panel in SPI No. 79-347
[Hamilton B. Dimaya, Brigadier General, AFP, The Judge Advocate General, Chairman; Leon O.
Ridao, Colonel, JAGS (GSC), Deputy Judge Advocate General, Member; and Amor B. Felipe,
Colonel, JAGS (GSC) Executive Officer, Member], and the Minister of National Defense,
RespondentsSupreme Court.
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People vs. Hortillano
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 mans capacity to stir trouble. Now that the shoe is
on the other foot, let no more of human rights violations be repeated against any one, friend or
foe. In a democratic framework, there is no such thing as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the
present Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Petition dismissed.
Note.The exercise of even the preferred freedoms of speech and of expression, although
couched in absolute terms, admits of limits and must be adjusted to the requirements of equally
important public interests. (Zaldivar vs. Sandiganbayan, G.R. Nos. 79690-707, Oct. 7, 1988.)
o0o

Copyright 2014 Central Book Supply, Inc. All rights reserved. [Marcos vs. Manglapus, 177
SCRA 668(1989)]

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