the rights specifically guaranteed in the Bill of Rights, which treats only

of the liberty of abode and the right to travel.

2. ID.; ID.; RIGHT TO RETURN CONSIDERED AS A GENERALLY

ACCEPTED PRINCIPLE OF INTERNATIONAL LAW. — It is the
EN BANC court’s well-considered view that the right to return may be considered,
as a generally accepted principle of international law and under our
Constitution, is part of the law of the land [Art. II Sec. 2 of the
[G.R. No. 88211. September 15, 1989.] Constitution.]

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND 3. ID.; ID.; RIGHT TO RETURN, DISTINCT AND SEPARATE
R. MARCOS, JR., IRENE M. ARANETA, IMEE M. MANOTOC, FROM THE RIGHT TO TRAVEL. — It is distinct and separate from
TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. the right to travel and enjoys a different protection under the
MARCOS, NICANOR YÑIGUEZ and PHILIPPINE International Covenant of Civil and Political Rights, i.e., against being
CONSTITUTION ASSOCIATION (PHILCONSA), represented by "arbitrarily deprived" thereof [Art. 12 (4).]
its President, CONRADO F. ESTRELLA, Petitioners, v.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG,
SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, 4. ID.; ALLOCATION OF POWER IN THE THREE BRANCHES OF
FIDEL RAMOS, RENATO DE VILLA, in their capacity as GOVERNMENT A GRANT OF ALL THE POWERS INHERENT
Secretary of Foreign Affairs, Executive Secretary, Secretary of THERETO. — As the Supreme Court in Ocampo v. Cabangis [15 Phil.
Justice, Immigration Commissioner, Secretary of National Defense 626 (1910)] pointed out "a grant of the legislative power means a grant
and Chief of Staff, respectively, Respondents. 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
SYLLABUS 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
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO is vested in one official — the President.
RETURN TO ONE’S COUNTRY, NOT AMONG THE RIGHTS
GUARANTEED. — The right to return to one’s country is not among
5. ID.; PRESIDENT’S POWER UNDER THE 1987 CONSTITUTION; Marcoses to be allowed to return to the Philippines cannot be considered
EXTENT AND LIMITATION. — Consideration of tradition and the in the light solely of the constitutional provisions guaranteeing liberty of
development of presidential power under the different constitutions are abode and the right to travel, subject to certain exceptions, or of case
essential for a complete understanding of the extent of and limitations to law which clearly never contemplated situations even remotely similar
the President’s powers under the 1987 Constitution. Although the 1987 to the present one. It must be treated as a matter that is appropriately
Constitution imposes limitations on the exercise of specific powers of addressed to those residual unstated powers of the President which are
the President, it maintains intact what is traditionally considered as implicit in and correlative to the paramount duty residing in that office
within the scope of "executive power." Corollarily, the powers of the to safeguard and protect general welfare. In that context, such request or
President cannot be said to be limited only to the specific powers demand should submit to the exercise of a broader discretion on the part
enumerated in the Constitution. In other words, executive power is more of the President to determine whether it must be granted or denied.
than the sum of specific powers so enumerated.

8. ID.; JUDICIAL REVIEW; POWER TO DETERMINE GRAVE

6. ID.; PRESIDENT’S RESIDUAL POWER TO PROTECT THE ABUSE OF DISCRETION OR EXCESS OF JURISDICTION ON
GENERAL WELFARE OF THE PEOPLE; THE POWERS ANY BRANCH OR INSTRUMENTALITY OF THE GOVERNMENT.
INVOLVED. — The power involved is the President’s residual power to — The present Constitution limits resort to the political question
protect the general welfare of the people. It is founded on the duty of the doctrine and broadens the scope of judicial inquiry into areas which the
President, as steward of the people. To paraphrase Theodore Roosevelt, Court, under previous constitutions, would have normally left to the
it is not only the power of the President but also his duty to do anything political departments to decide. The deliberations of the Constitutional
not forbidden by the Constitution or the laws that the needs of the nation Commission cited by petitioners show that the framers intended to
demand. The President is not only clothed with extraordinary powers in widen the scope of judicial review but they did not intend courts of
times of emergency, but is also tasked with attending to the day-to-day justice to settle all actual controversies before them. When political
problems of maintaining peace and order and ensuring domestic questions are involved, the Constitution limits the determination to
tranquillity in times when no foreign foe appears on the horizon. Wide whether or not there has been a grave abuse of discretion amounting to
discretion, within the bounds of law, in fulfilling presidential duties in lack or excess of jurisdiction on the part of the official whose action is
times of peace is not in any way diminished by the relative want of an being questioned.
emergency specified in the commander-in-chief provision.

9. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL

7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; REQUEST OF REQUEST TO BE ALLOWED TO RETURN TO THE
TO BE ALLOWED TO RETURN TO THE PHILIPPINES; TO BE PHILIPPINES, NOT A GRAVE ABUSE OF DISCRETION. — We
TREATED AS ADDRESSED TO THE RESIDUAL UNSTATED find that from the pleadings filed by the parties, from their oral
POWERS OF THE PRESIDENT. — The request or demand of the 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 the extent that power to deal with such questions has been conferred on
Security Adviser, wherein petitioners and respondents were represented, the courts by express constitutional or statutory provisions.
there exist factual bases for the President’s decision. The documented
history of the efforts of the Marcoses and their followers to destabilize
the country, as earlier narrated in this ponencia bolsters the conclusion 3. ID.; ID.; CONSTRUED. — It is not so easy, however, to define the
that the return of the Marcoses at this time would only exacerbate and phrase political question, nor to determine what matters fall within its
intensify the violence directed against the State and instigate more scope. It is frequently used to designate all questions that lie outside the
chaos. With these before her, the President cannot be said to have acted scope of the judicial power. More properly, however, it means those
arbitrarily and capriciously and whimsically in determining that the questions which, under the constitution, are to be decided by the people
return of the Marcoses poses a serious threat to the national interest and in their sovereign capacity, or in regard to which full discretionary
welfare and in prohibiting their return. authority has been delegated to the legislative or executive branch of the
government.

4. ID.; ID.; CONSTITUTIONAL POWER VESTED EXCLUSIVELY

IN THE PRESIDENT OR CONGRESS, BEYOND PROHIBITION OR
GUTIERREZ, JR., J.: dissenting: chanrob1es virtual 1aw library EXAMINATION BY THE COURT REQUIRED FOR ITS
EXISTENCE. — For a political question to exist, there must be in the
Constitution a power vested exclusively in the President or Congress,
1. CONSTITUTIONAL LAW; CONSTITUTION; ITS PROVISIONS the exercise of which the court should not examine or prohibit. A claim
PROTECT ALL MEN, AT ALL TIMES AND UNDER ALL of plenary or inherent power against a civil right which claim is not
CIRCUMSTANCES. — "The Constitution . . . is a law for rulers and found in a specific provision is dangerous. Neither should we validate a
people, equally in war and in peace, and covers with the shield of its roving commission allowing public officials to strike where they please
protection all classes of men, at all times, and under all circumstances. and to override everything which to them represents evil. The entire
No doctrine involving more pernicious consequences was ever invented Government is bound by the rule of law. The authority implied in
by the wit of man than that any of its provisions can be suspended Section 6 of the Bill of Rights itself does not exist because no law has
during any of the great exigencies of government." (Ex Parte Milligan, 4 been enacted specifying the circumstances when the right may be
Wall. 2; 18 L. Ed. 281 [1866]). impaired in the interest of national security or public safety. The power
is in Congress, not the Executive.

2. ID.; POLITICAL QUESTIONS; OUTSIDE THE SCOPE OF

JUDICIAL DETERMINATION. — It is a well-settled doctrine that 5. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; RIGHT TO
political questions are not within the province of the judiciary, except to TRAVEL INCLUDES RIGHT TO TRAVEL OUT OF OR BACK TO
THE PHILIPPINES. — Section 6 of the Bill of Rights states return to his home to buttress a conclusion. In the first place, there has
categorically that the liberty of abode and of changing the same within never been a pronouncement by the President that a clear and present
the limits prescribed by law may be impaired only upon a lawful order danger to national security and public safety will arise if Mr. Marcos and
of a court. Not by an executive officer. Not even by the President. his family are allowed to return to the Philippines. It was only after the
Section 6 further provides that the right to travel, and this obviously present petition was filed that the alleged danger to national security and
includes the right to travel out of or back into the Philippines, cannot be public safety conveniently surfaced in the respondents’ pleadings.
impaired except in the interest of national security, public safety, or Secondly, President Aquino herself limits the reason for the ban Marcos
public health, as may be provided by law. policy to (1) national welfare and interest and (2) the continuing need to
preserve the gains achieved in terms of recovery and stability. Neither
ground satisfies the criteria of national security and public safety. The
6. ID.; POLITICAL QUESTION DOCTRINE NO LONGER "confluence theory" of the Solicitor General or what the majority calls
UTILIZED BY THE COURT; COURT COMPELLED TO DECIDE "catalytic effect," which alone sustains the claim of danger to national
THE CASE UNDER THE 1987 CONSTITUTION. — The framers of security is fraught with perilous implications. Any difficult problem or
the Constitution believed that the free use of the political question any troublesome person can be substituted for the Marcos threat as the
doctrine allowed the Court during the Marcos years to fall back on catalysing factor. It was precisely the banning by Mr. Marcos of the
prudence, institutional difficulties, complexity of issues, momentousness right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and
of consequences or a fear that it was extravagantly extending judicial scores of other "undesirables" and "threats to national security" during
power in the cases where it refused to examine and strike down an that unfortunate period which led the framers of our present Constitution
exercise of authoritarian power. Parenthetically, at least two of the not only to re-enact but to strengthen the declaration of this right.
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 DECISION
are compelled to decide what would have been non-justiceable under
our decisions interpreting earlier fundamental charters.
CORTES, J.:

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

GRAVE ABUSE OF DISCRETION. — We do not have to look into the Before the Court is a controversy of grave national importance. While
factual bases of the ban Marcos policy in order to ascertain whether or ostensibly only legal issues are involved, the Court’s decision in this
not the respondents acted with grave abuse of discretion. Nor are we case would undeniably have a profound effect on the political, economic
forced to fall back upon judicial notice of the implications of a Marcos and other aspects of national life.
 from the government. Not only through resort to arms but also through
We recall that in February 1986, Ferdinand E. Marcos was deposed from the use of propaganda have they been successful in creating chaos and
the presidency via the non-violent "people power" revolution and forced destabilizing the country.
into exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and Nor are the woes of the Republic purely political. The accumulated
consolidation of power have not been unchallenged. The failed Manila foreign debt and the plunder of the nation attributed to Mr. Marcos and
Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover his cronies left the economy devastated. The efforts at economic
of television station Channel 7 by rebel troops led by Col. Canlas with recovery, three years after Mrs. Aquino assumed office, have yet to
the support of "Marcos loyalists" and the unsuccessful plot of the show concrete results in alleviating the poverty of the masses, while the
Marcos spouses to surreptitiously return from Hawaii with mercenaries recovery of the ill-gotten wealth of the Marcoses has remained elusive.
aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin,
January 30, 1987] awakened the nation to the capacity of the Marcoses Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
to stir trouble even from afar and to the fanaticism and blind loyalty of Philippines to die. But Mrs. Aquino, considering the dire consequences
their followers in the country. The ratification of the 1987 Constitution to the nation of his return at a time when the stability of government is
enshrined the victory of "people power" and also clearly reinforced the threatened from various directions and the economy is just beginning to
constitutional moorings of Mrs. Aquino’s presidency. This did not, rise and move forward, has stood firmly on the decision to bar the return
however, stop bloody challenges to the government. On August 28, of Mr. Marcos and his family.
1987, Col. Gregorio Honasan, one of the major players in the February
Revolution, led a failed coup that left scores of people, both combatants The Petition
and civilians, dead. There were several other armed sorties of lesser
significance, but the message they conveyed was the same — a split in This case is unique. It should not create a precedent, for the case of a
the ranks of the military establishment that threatened civilian dictator forced out of office and into exile after causing twenty years of
supremacy over the military and brought to the fore the realization that political, economic and social havoc in the country and who within the
civilian government could be at the mercy of a fractious military. short space of three years seeks to return, is in a class by itself.

But the armed threats to the Government were not only found in This petition for mandamus and prohibition asks the Court to order the
misguided elements in the military establishment and among rabid respondents to issue travel documents to Mr. Marcos and the immediate
followers of Mr. Marcos. There were also the communist insurgency and members of his family and to enjoin the implementation of the
the secessionist movement in Mindanao which gained ground during the President’s decision to bar their return to the Philippines.
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
 (4) Assuming that notice and hearing may be dispensed with, has the
The Issue President’s decision, including the grounds upon which it was based,
been made known to petitioners so that they may controvert the same?
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 c. Is the President’s determination that the return of former President
Marcoses from returning to the Philippines. Marcos and his family to the Philippines is a clear and present danger to
national security, public safety, or public health a political question?
According to the petitioners, the resolution of the case would depend on
the resolution of the following issues: chanrob1es virtual 1aw library 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
1. Does the President have the power to bar the return of former national security, public safety, or public health, have respondents
President Marcos and his family to the Philippines? established such fact?

a. Is this a political question? 3. Have the respondents, therefore, in implementing the President’s
decision to bar the return of former President Marcos and his family,
2. Assuming that the President has the power to bar former President acted and would be acting without jurisdiction, or in excess of
Marcos and his family from returning to the Philippines, in the interest jurisdiction, or with grave abuse of discretion, in performing any act
of "national security, public safety or public health" — which would effectively bar the return of former President Marcos and
his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
a. Has the President made a finding that the return of former President Rollo, pp. 234-236.]
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety or public health? 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
b. Assuming that she has made that finding, — provisions of the Bill of Rights, to wit:
chanrob1es virtual 1aw library

(1) Have the requirements of due process been complied with in making Section 1. No person shall be deprived of life, liberty, or property
such finding? without due process of law, nor shall any person be denied the equal
protection of the laws.
(2) Has there been prior notice to petitioners?
x x x
(3) Has there been a hearing?
Section 6. The liberty of abode and of changing the same within the 2) Everyone shall be free to leave any country, including his own.
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 3) The above-mentioned rights shall not be subject to any restrictions
interest of national security, public safety, or public health, as may be except those which are provided by law, are necessary to protect
provided by law. national security, public order (order public), public health or morals or
the rights and freedoms of others, and are consistent with the other
The petitioners contend that the President is without power to impair the rights recognized in the present Covenant.
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 4) No one shall be arbitrarily deprived of the right to enter his own
travel because no law has authorized her to do so. They advance the country.
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. chanrobles lawlibrary : rednad On the other hand, the respondents’ principal argument is that the issue
in this case involves a political question which is non-justiciable.
The petitioners further assert that under international law, the right of According to the Solicitor General:chanrob1es virtual 1aw library

Mr. Marcos and his family to return to the Philippines is guaranteed.

As petitioners couch it, the question involved is simply whether or not
The Universal Declaration of Human Rights provides: chanrob1es virtual 1aw library petitioners Ferdinand E. Marcos and his family have the right to travel
and liberty of abode. Petitioners invoke these constitutional rights in
Article 13. (1) Everyone has the right to freedom of movement and vacuo without reference to attendant circumstances.
residence within the borders of each state.
Respondents submit that in its proper formulation, the issue is whether
(2) Everyone has the right to leave any country, including his own, and or not petitioners Ferdinand E. Marcos and family have the right to
to return to his country. 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
Likewise, the International Covenant on Civil and Political Rights, endanger national security and public safety.
which had been ratified by the Philippines, provides:chanrob1es virtual 1aw library

It may be conceded that as formulated by petitioners, the question is not

Article 12 a political question as it involves merely a determination of what the law
provides on the matter and application thereof to petitioners Ferdinand
1) Everyone lawfully within the territory of a State shall, within that E. Marcos and family. But when the question is whether the two rights
territory, have the right to liberty of movement and freedom to choose claimed by petitioners Ferdinand E. Marcos and family impinge on or
his residence. collide with the more primordial and transcendental right of the State to
security and safety of its nationals, the question becomes political and essential for the enjoyment by all the people of the blessings of
this Honorable Court can not consider it. chanrobles virtual lawlibrary democracy.

There are thus gradations to the question, to wit: chanrob1es virtual 1aw library Respondents also point out that the decision to ban Mr. Marcos and his
family from returning to the Philippines for reasons of national security
Do petitioners Ferdinand E. Marcos and family have the right to return and public safety has international precedents. Rafael Trujillo of the
to the Philippines and reestablish their residence here? This is clearly a Dominican Republic, Anastacio Somoza, Jr. of Nicaragua, Jorge Ubico
justiciable question which this Honorable Court can decide. of Guatemala, Fulgencio Batista of Cuba, King Farouk of Egypt,
Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez
Do petitioners Ferdinand E. Marcos and family have their right to return Jimenez of Venezuela were among the deposed dictators whose return to
to the Philippines and reestablish their residence here even if their return their homelands was prevented by their governments. [See Statement of
and residence here will endanger national security and public safety? Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum
This is still a justiciable question which this Honorable Court can for Respondents, pp. 26-32; Rollo, pp. 314-319.]
decide.
The parties are in agreement that the underlying issue is one of the scope
Is there danger to national security and public safety if petitioners of presidential power and its limits. We, however, view this issue in a
Ferdinand E. Marcos and family shall return to the Philippines and different light. Although we give due weight to the parties’ formulation
establish their residence here? This is now a political question which of the issues, we are not bound by its narrow confines in arriving at a
this Honorable Court can not decide for it falls within the exclusive solution to the controversy.
authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.] 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
Respondents argue for the primacy of the right of the State to national U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S.
security over individual rights. In support thereof, they cite Article II of 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280,
the Constitution, to wit:
chanrob1es virtual 1aw library 101 SCt. 2766, 69 L Ed. 2d 640) which affirmed the right to travel and
recognized exceptions to the exercise thereof, respectively.
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 It must be emphasized that the individual right involved is not the right
and, in the fulfillment thereof, all citizens may be required, under to travel from the Philippines to other countries or within the
conditions provided by law, to render personal, military, or civil service. Philippines. These are what the right to travel would normally connote.
Essentially, the right involved is the right to return to one’s country, a
Section 5. The maintenance of peace and order, the protection of life, totally distinct right under international law, independent from although
liberty, and property, and the promotion of the general welfare are related to the right to travel. Thus, the Universal Declaration of Humans
Rights and the International Covenant on Civil and Political Rights treat without precedent in Philippine, and even in American jurisprudence. chanrobles

virtual lawlibrary

the right to freedom of movement and abode within the territory of a

state, the right to leave a country, and the right to enter one’s country as Consequently, resolution by the Court of the well-debated issue of
separate and distinct rights. The Declaration speaks of the "right to whether or not there can be limitations on the right to travel in the
freedom of movement and residence within the borders of each state" absence of legislation to that effect is rendered unnecessary. An
[Art. 13(1)] separately from the "right to leave any country, including appropriate case for its resolution will have to be awaited.
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 Having clarified the substance of the legal issue, we find now a need to
to choose his residence" [Art. 12(1)] and the right to "be free to leave explain the methodology for its resolution. Our resolution of the issue
any country, including his own." [Art. 12(2)] which rights may be will involve a two-tiered approach. We shall first resolve whether or not
restricted by such laws as "are necessary to protect national security, the President has the power under the Constitution, to bar the Marcoses
public order, public health or morals or the separate rights and freedoms from returning to the Philippines. Then, we shall determine, pursuant to
of others." [Art. 12(3)] as distinguished from the "right to enter his own the express power of the Court under the Constitution in Article VIII,
country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It Section 1, whether or not the President acted arbitrarily or with grave
would therefore be inappropriate to construe the limitations to the right abuse of discretion amounting to lack or excess of jurisdiction when she
to return to one’s country in the same context as those pertaining to the determined that the return of the Marcoses to the Philippines poses a
liberty of abode and the right to travel. serious threat to national interest and welfare and decided to bar their
return.
The right to return to one’s country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode
and the right to travel, but it is our well-considered view that the right to Executive Power
return may be considered, as a generally accepted principle of
international law and, under our Constitution, is part of the law of the The 1987 Constitution has fully restored the separation of powers of the
land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and three great branches of government. To recall the words of Justice
separate from the right to travel and enjoys a different protection under Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the
the International Covenant of Civil and Political Rights, i.e., against Constitution has blocked but with deft strokes and in bold lines,
being "arbitrarily deprived" thereof [Art. 12 (4).] allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.] Thus, the 1987 Constitution
Thus, the rulings in the cases of Kent and Haig, which refer to the explicitly provides that" [t]he legislative power shall be vested in the
issuance of passports for the purpose of effectively exercising the right Congress of the Philippines" [Art. VI, Sec. 1]," [t]he executive power
to travel are not determinative of this case and are only tangentially shall be vested in the President of the Philippines" [Art. VII, Sec. 1],
material insofar as they relate to a conflict between executive action and and" [t]he judicial power shall be vested in one Supreme Court and in
the exercise of a protected right. The issue before the Court is novel and such lower courts as may be established by law" [Art. VIII, Sec. 1.]
These provisions not only establish a separation of powers by actual enumerated is impliedly denied to her. Inclusio unius est exclusio
division [Angara v. Electoral Commission, supra] but also confer alterius." [Memorandum for Petitioners, p. 4; Rollo p. 233.] This
plenary legislative, executive and judicial powers subject only to argument brings to mind the institution of the U. S. Presidency after
limitations provided in the Constitution. For as the Supreme Court in which ours is legally patterned. **
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 Corwin, in his monumental volume on the President of the United States
the judicial power means a grant of all the judicial power which may be grappled with the same problem. He said: chanrob1es virtual 1aw library

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 Article II is the most loosely drawn chapter of the Constitution. To those
membership of more than two hundred members and of the judicial who think that a constitution ought to settle everything beforehand it
power which is vested in a hierarchy of courts, it can equally be said of should be a nightmare; by the same token, to those who think that
the executive power which is vested in one official — the President. constitution makers ought to leave considerable leeway for the future
play of political forces, it should be a vision realized.
As stated above, the Constitution provides that" [t]he executive power
shall be vested in the President of the Philippines." [Art. VII, Sec. 1]. We encounter this characteristic of Article II in its opening words: "The
However, it does not define what is meant by "executive power" executive power shall be vested in a President of the United States of
although in the same article it touches on the exercise of certain powers America.." . . [The President: Office and Powers, 1787-1957, pp. 3-4.]
by the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the Reviewing how the powers of the U.S. President were exercised by the
appointing power, the powers under the commander-in-chief clause, the different persons who held the office from Washington to the early
power to grant reprieves, commutations and pardons, the power to grant 1900’s, and the swing from the presidency by commission to Lincoln’s
amnesty with the concurrence of Congress, the power to contract or dictatorship, he concluded that "what the presidency is at any particular
guarantee foreign loans, the power to enter into treaties or international moment depends in important measure on who is President." [At 30.]
agreements, the power to submit the budget to Congress, and the power
to address Congress [Art. VII, Secs. 14-23].chanrobles law library This view is shared by Schlesinger, who wrote in The Imperial
Presidency:chanrob1es virtual 1aw library

The inevitable question then arises: by enumerating certain powers of

the President did the framers of the Constitution intend that the For the American Presidency was a peculiarly personal institution. It
President shall exercise those specific powers and no other? Are these remained, of course, an agency of government subject to unvarying
enumerated powers the breadth and scope of "executive power" ? demands and duties no matter who was President. But, more than most
Petitioners advance the view that the President’s powers are limited to agencies of government, it changed shape, intensity and ethos according
those specifically enumerated in the 1987 Constitution. Thus, they to the man in charge. Each President’s distinctive temperament and
assert: "The President has enumerated powers, and what is not character, his values, standards, style, his habits, expectations,
idiosyncrasies, compulsions, phobias recast the White House and President other powers that do not involve the execution of any
pervaded the entire government. The executive branch, said Clark provision of law, e.g., his power over the country’s foreign relations.
Clifford, was a chameleon, taking its color from the character and
personality of the President. The thrust of the office, its impact on the On these premises, we hold the view that although the 1987 Constitution
constitutional order, therefore altered from President to President. imposes limitations on the exercise of specific powers of the President,
Above all, the way each President understood it as his personal it maintains intact what is traditionally considered as within the scope of
obligation to inform and involve the Congress, to earn and hold the "executive power." Corollarily, the powers of the President cannot be
confidence of the electorate and to render an accounting to the nation said to be limited only to the specific powers enumerated in the
and posterity determined whether he strengthened or weakened the Constitution. In other words, executive power is more than the sum of
constitutional order. [At 212-213.] specific powers so enumerated.

We do not say that the presidency is what Mrs. Aquino says it is or what It has been advanced that whatever power inherent in the government
she does but, rather, that the consideration of tradition and the that is neither legislative nor judicial has to be executive. Thus, in the
development of presidential power under the different constitutions are landmark decision of Springer v. Government of the Philippine Islands,
essential for a complete understanding of the extent of and limitations to 277 U.S. 189 (1928), on the issue of who between the Governor-General
the President’s powers under the 1987 Constitution. The 1935 of the Philippines and the Legislature may vote the shares of stock held
Constitution created a strong President with explicitly broader powers by the Government to elect directors in the National Coal Company and
than the U.S. President. The 1973 Constitution attempted to modify the the Philippine National Bank, the U.S. Supreme Court, in upholding the
system of government into the parliamentary type, with the President as power of the Governor-General to do so, said: chanrob1es virtual 1aw library

a mere figurehead, but through numerous amendments, the President

became even more powerful, to the point that he was also the de facto . . . Here the members of the legislature who constitute a majority of the
Legislature. The 1987 Constitution, however, brought back the "board" and "committee" respectively, are not charged with the
presidential system of government and restored the separation of performance of any legislative functions or with the doing of anything
legislative, executive and judicial powers by their actual distribution which is in aid of performance of any such functions by the legislature.
among three distinct branches of government with provision for checks Putting aside for the moment the question whether the duties devolved
and balances.cralawnad upon these members are vested by the Organic Act in the
Governor-General, it is clear that they are not legislative in character,
It would not be accurate, however, to state that "executive power" is the and still more clear that they are not judicial. The fact that they do not
power to enforce the laws, for the President is head of state as well as fall within the authority of either of these two constitutes logical ground
head of government and whatever powers inhere in such positions for concluding that they do fall within that of the remaining one among
pertain to the office unless the Constitution itself withholds it. which the powers of government are divided . . . [At 202-203; Emphasis
Furthermore, the Constitution itself provides that the execution of the supplied.]
laws is only one of the powers of the President. It also grants the
We are not unmindful of Justice Holmes’ strong dissent. But in his governmental action. But such does not mean that they are empty words.
enduring words of dissent we find reinforcement for the view that it Thus, in the exercise of presidential functions, in drawing a plan of
would indeed be a folly to construe the powers of a branch of government, and in directing implementing action for these plans, or
government to embrace only what are specifically mentioned in the from another point of view, in making any decision as President of the
Constitution:chanrob1es virtual 1aw library Republic, the President has to consider these principles, among other
things, and adhere to them.chanrobles.com : virtual law library

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 Faced with the problem of whether or not the time is right to allow the
terminate in a penumbra shading gradually from one extreme to the Marcoses to return to the Philippines, the President is, under the
other. . . . Constitution, constrained to consider these basic principles in arriving at
a decision. More than that, having sworn to defend and uphold the
x x x 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
It does not seem to need argument to show that however we may an allocation of power is also a social contract whereby the people have
disguise it by veiling words we do not and cannot carry out the surrendered their sovereign powers to the State for the common good.
distinction between legislative and executive action with mathematical Hence, lest the officers of the Government exercising the powers
precision and divide the branches into watertight compartments, were it delegated by the people forget and the servants of the people become
ever so desirable to do so, which I am far from believing that it is, or rulers, the Constitution reminds everyone that" [s]overeignty resides in
that the Constitution reqiures.[At 210-211.] the people and all government authority emanates from them." [Art. II,
Sec. 1.]
The Power Involved
The resolution of the problem is made difficult because the persons who
The Constitution declares among the guiding principles that" [t]he prime seek to return to the country are the deposed dictator and his family at
duty of the Government is to serve and protect the people" and that" whose door the travails of the country are laid and from whom billions
[t]he maintenance of peace and order, the protection of life, liberty, and of dollars believed to be ill-gotten wealth are sought to be recovered.
property, and the promotion of the general welfare are essential for the The constitutional guarantees they invoke are neither absolute nor
enjoyment by all the people of the blessings of democracy." [Art. II, inflexible. For the exercise of even the preferred freedoms of speech and
Secs. 4 and 5.] of expression, although couched in absolute terms, admits of limits and
must be adjusted to the requirements of equally important public
Admittedly, service and protection of the people, the maintenance of interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7,
peace and order, the protection of life, liberty and property, and the 1988].
promotion of the general welfare are essentially ideals to guide
To the President, the problem is one of balancing the general welfare
and the common good against the exercise of rights of certain That the President has the power under the Constitution to bar the
individuals. The power involved is the President’s residual power to Marcoses from returning has been recognized by members of the
protect the general welfare of the people. It is founded on the duty of the Legislature, and is manifested by the Resolution proposed in the House
President, as steward of the people. To paraphrase Theodore Roosevelt, of Representatives and signed by 103 of its members urging the
it is not only the power of the President but also his duty to do anything President to allow Mr. Marcos to return to the Philippines "as a genuine
not forbidden by the Constitution or the laws that the needs of the nation unselfish gesture for true national reconciliation and as irrevocable proof
demand [See Corwin, supra, at 153]. It is a power borne by the of our collective adherence to uncompromising respect for human rights
President’s duty to preserve and defend the Constitution. It also may be under the Constitution and our laws." [House Resolution No. 1342,
viewed as a power implicit in the President’s duty to take care that the Rollo, p. 321.] The Resolution does not question the President’s power
laws are faithfully executed [see Hyman, The American President, to bar the Marcoses from returning to the Philippines, rather, it appeals
where the author advances the view that an allowance of discretionary to the President’s sense of compassion to allow a man to come home to
power is unavoidable in any government and is best lodged in the die in his country.
President].
What we are saying in effect is that the request or demand of the
More particularly, this case calls for the exercise of the President’s Marcoses to be allowed to return to the Philippines cannot be considered
powers as protector of the peace. [Rossiter, The American Presidency]. in the light solely of the constitutional provisions guaranteeing liberty of
The power of the President to keep the peace is not limited merely to abode and the right to travel, subject to certain exceptions, or of case
exercising the commander-in-chief powers in times of emergency or to law which clearly never contemplated situations even remotely similar
leading the State against external and internal threats to its existence. to the present one. It must be treated as a matter that is appropriately
The President is not only clothed with extraordinary powers in times of addressed to those residual unstated powers of the President which are
emergency, but is also tasked with attending to the day-to-day problems implicit in and correlative to the paramount duty residing in that office
of maintaining peace and order and ensuring domestic tranquillity in to safeguard and protect general welfare. In that context, such request or
times when no foreign foe appears on the horizon. Wide discretion, demand should submit to the exercise of a broader discretion on the part
within the bounds of law, in fulfilling presidential duties in times of of the President to determine whether it must be granted or denied. chanrobles lawlibrary :

rednad

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 The Extent of Review
President commander-in-chief the enumeration of powers that follow
cannot be said to exclude the President’s exercising as Under the Constitution, judicial power includes the duty to determine
Commander-in-Chief powers short of the calling of the armed forces, or whether or not there has been a grave abuse of discretion amounting to
suspending the privilege of the writ of habeas corpus or declaring lack or excess of jurisdiction on the part of any branch or
martial law, in order to keep the peace, and maintain public order and instrumentality of the Government." [Art. VIII, Sec. 1.] Given this
security. wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964,
Court to decide. December 11, 1971, 42 SCRA 448] that: chanrob1es virtual 1aw library

The present Constitution limits resort to the political question doctrine Article VII of the [1935] Constitution vests in the Executive the power
and broadens the scope of judicial inquiry into areas which the Court, to suspend the privilege of the writ of habeas corpus under specified
under previous constitutions, would have normally left to the political conditions. Pursuant to the principle of separation of powers underlying
departments to decide. But nonetheless there remain issues beyond the our system of government, the Executive is supreme within his own
Court’s jurisdiction the determination of which is exclusively for the sphere. However, the separation of powers, under the Constitution, is
President, for Congress or for the people themselves through a plebiscite not absolute. What is more, it goes hand in hand with the system of
or referendum. We cannot, for example, question the President’s checks and balances, under which the Executive is supreme, as regards
recognition of a foreign government, no matter how premature or the suspension of the privilege, but only if and when he acts within the
improvident such action may appear. We cannot set aside a presidential sphere alloted to him by the Basic Law, and the authority to determine
pardon though it may appear to us that the beneficiary is totally whether or not he has so acted is vested in the Judicial Department,
undeserving of the grant. Nor can we amend the Constitution under the which, in this respect, is, in turn, constitutionally supreme.
guise of resolving a dispute brought before us because the power is
reserved to the people. In the exercise of such authority, the function of the Court is merely to
check — not to supplant — the Executive, or to ascertain merely
There is nothing in the case before us that precludes our determination whether he has gone beyond the constitutional limits of his jurisdiction,
thereof on the political question doctrine. The deliberations of the not to exercise the power vested in him or to determine the wisdom of
Constitutional Commission cited by petitioners show that the framers his act .. [At 479-480.].
intended to widen the scope of judicial review but they did not intend
courts of justice to settle all actual controversies before them. When Accordingly, the question for the Court to determine is whether or not
political questions are involved, the Constitution limits the there exist factual bases for the President to conclude that it was in the
determination to whether or not there has been a grave abuse of national interest to bar the return of the Marcoses to the Philippines. If
discretion amounting to lack or excess of jurisdiction on the part of the such postulates do exist, it cannot be said that she has acted, or acts,
official whose action is being questioned. If grave abuse is not arbitrarily or that she has gravely abused her discretion in deciding to
established, the Court will not substitute its judgment for that of the bar their return.
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 We find that from the pleadings filed by the parties, from their oral
second paragraph of Article VIII, Section 1 of the Constitution, defining arguments, and the facts revealed during the briefing in chambers by the
"judicial power," which specifically empowers the courts to determine Chief of Staff of the Armed Forces of the Philippines and the National
whether or not there has been a grave abuse of discretion on the part of Security Adviser, wherein petitioners and respondents were represented,
any branch or instrumentality of the government, incorporates in the there exist factual bases for the President’s decision.
 sworn to preserve and defend the Constitution and to see the faithful
The Court cannot close its eyes to present realities and pretend that the execution the laws, cannot shirk from that responsibility.
chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

country is not besieged from within by a well-organized communist

insurgency, a separatist movement in Mindanao, rightist conspiracies to We cannot also lose sight of the fact that the country is only now
grab power, urban terrorism, the murder with impunity of military men, beginning to recover from the hardships brought about by the plunder of
police officers and civilian officials, to mention only a few. The the economy attributed to the Marcoses and their close associates and
documented history of the efforts of the Marcoses and their followers to relatives, many of whom are still here in the Philippines in a position to
destabilize the country, as earlier narrated in this ponencia bolsters the destabilize the country, while the Government has barely scratched the
conclusion that the return of the Marcoses at this time would only surface, so to speak, in its efforts to recover the enormous wealth
exacerbate and intensify the violence directed against the State and stashed away by the Marcoses in foreign jurisdictions. Then, We cannot
instigate more chaos. ignore the continually increasing burden imposed on the economy by
the excessive foreign borrowing during the Marcos regime, which stifles
As divergent and discordant forces, the enemies of the State may be and stagnates development and is one of the root causes of widespread
contained. The military establishment has given assurances that it could poverty and all its attendant ills. The resulting precarious state of our
handle the threats posed by particular groups. But it is the catalytic economy is of common knowledge and is easily within the ambit of
effect of the return of the Marcoses that may prove to be the proverbial judicial notice.
final straw that would break the camel’s back.
The President has determined that the destabilization caused by the
With these before her, the President cannot be said to have acted return of the Marcoses would wipe away the gains achieved during the
arbitrarily and capriciously and whimsically in determining that the past few years and lead to total economic collapse. Given what is within
return of the Marcoses poses a serious threat to the national interest and our individual and common knowledge of the state of the economy, we
welfare and in prohibiting their return. cannot argue with that determination.

It will not do to argue that if the return of the Marcoses to the WHEREFORE, and it being our well-considered opinion that the
Philippines will cause the escalation of violence against the State, that President did not act arbitrarily or with grave abuse of discretion in
would be the time for the President to step in and exercise the determining that the return of former President Marcos and his family at
commander-in-chief powers granted her by the Constitution to suppress the present time and under present circumstances poses a serious threat
or stamp out such violence. The State, acting through the Government, to national interest and welfare and in prohibiting their return to the
is not precluded from taking pre-emptive action against threats to its Philippines, the instant petition is hereby DISMISSED.
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 SO ORDERED.
government. The preservation of the State — the fruition of the people’s
sovereignty — is an obligation in the highest order. The President,
Narvasa, Melencio-Herrera, Gancayco, Griño-Aquino, Medialdea and Marcoses to return to the Philippines should be viewed. By reason of its
Regalado, JJ., concur. impact on national peace and order in these admittedly critical times,
said question cannot be withdrawn from the competence of the
Feliciano, J., is on leave. Executive Branch to decide.

Separate Opinions 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
FERNAN, C.J., concurring: jgc:chanrobles.com.ph the so-called Marcos loyalists as well as the ultra-rightist groups during
the EDSA Revolution’s aftermath to realize this. The most publicized of
"The threats to national security and public order are real - the mounting these offensives is the Manila Hotel incident which occurred barely five
Communist insurgency, a simmering separatist movement, a restive (5) months after the People’s Power Revolution. Around 10,000 Marcos
studentry, widespread labor disputes, militant farmer groups. . . . Each of supporters, backed by 300 loyalist soldiers led by Brigadier General
these threats is an explosive ingredient in a steaming cauldron which Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at the Manila
could blow up if not handled properly." 1 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
These are not my words. They belong to my distinguished colleague in citizens engendered by this event subsided only upon the eventual
the Court, Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently surrender of the loyalist soldiers to the authorities.
the basis of my full concurrence to the exhaustive and well-written
ponencia of Mme. Justice Irene R. Cortes. Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and
Camp Aguinaldo incidents. Military rebels waged simultaneous
Presidential powers and prerogatives are not fixed but fluctuate. They offensives in different parts of Metro Manila and Sangley Point in
are not derived solely from a particular constitutional clause or article or Cavite. A hundred rebel soldiers took over Channel 7 and its radio
from an express statutory grant. Their limits are likely to depend on the station DZBB. About 74 soldier rebels attacked Villamor Air Base,
imperatives of events and contemporary imponderables rather than on while another group struck at Sangley Point in Cavite and held the 15th
abstract theories of law. History and time-honored principles of Air Force Strike wing commander and his deputy hostage. Troops on
constitutional law have conceded to the Executive Branch certain board several vehicles attempted to enter Gate 1 of Camp Aguinaldo
powers in times of crisis or grave and imperative national emergency. even as another batch of 200 soldiers encamped at Horseshoe Village.
Many terms are applied to these powers: "residual," "inherent," "moral,"
"implied," "aggregate," "emergency." Whatever they may be called, the Another destabilization plot was carried out in April, 1987 by enlisted
fact is that these powers exist, as they must if the governance function of personnel who forced their way through Gate 1 of Fort Bonifacio. They
the Executive Branch is to be carried out effectively and efficiently. It is stormed into the army stockade but having failed to convince their
in this context that the power of the President to allow or disallow the
incarcerated members to unite in their cause, had to give up nine (9) executive branch has the power, nay, the responsibility and obligation, to
hours later. prevent a grave and serious threat to its safety from arising.

And who can forget the August 28, 1987 coup attempt which almost Apparently lost amidst the debate on whether or not to allow the
toppled the Aquino Government? Launched not by Marcos loyalists, but Marcoses to return to the Philippines is one factor, which albeit, at first
by another ultra-rightist group in the military led by Col. Gregorio blush appears to be extra legal, constitutes a valid justification for
"Gringo" Honasan who remains at large to date, this most serious disallowing the requested return. I refer to the public pulse. It must be
attempt to wrest control of the government resulted in the death of many remembered that the ouster of the Marcoses from the Philippines came
civilians. about as an unexpected, but certainly welcomed, result of the
unprecedented "people’s power" revolution. Millions of our people
Members of the so-called Black Forest Commando were able to cart braved military tanks and firepower, kept vigil, prayed, and in countless
away high-powered firearms and ammunition from the Camp Crame manner and ways contributed time, effort and money to put an end to an
Armory during a raid conducted in June 1988. Most of the group evidently untenable claim to power of a dictator. The removal of the
members were, however, captured in Antipolo, Rizal. The same group Marcoses from the Philippines was a moral victory for the Filipino
was involved in an unsuccessful plot known as Oplan Balik Saya which people; and the installation of the present administration, a realization of
sought the return of Marcos to the country. and obedience to the people’s will.

A more recent threat to public order, peace and safety was the attempt of Failing in legal arguments for the allowance of the Marcoses’ return,
a group named CEDECOR to mobilize civilians from nearby provinces appeal is being made to sympathy, compassion and even Filipino
to act as blockading forces at different Metro Manila areas for the tradition. The political and economic gains we have achieved during the
projected link-up of Marcos military loyalist troops with the group of past three years are however too valuable and precious to gamble away
Honasan. The pseudo "people power" movement was neutralized thru on purely compassionate considerations. Neither could public peace,
checkpoints set up by the authorities along major road arteries where the order and safety be sacrificed for an individual’s wish to die in his own
members were arrested or forced to turn back. chanrobles virtual lawlibrary country. Verily in the balancing of interests, the scales tilt in favor of
presidential prerogative, which we do not find to have been gravely
While not all of these disruptive incidents may be traced directly to the abused or arbitrarily exercised, to ban the Marcoses from returning to
Marcoses, their occurrence militates heavily against the wisdom of the Philippines.
allowing the Marcoses’ return. Not only will the Marcoses’ presence
embolden their followers toward similar actions, but any such action GUTIERREZ, JR., J., dissenting: jgc:chanrobles.com.ph

would be seized upon as an opportunity by other enemies of the State,

such as the Communist Party of the Philippines and the NPA’s, the "The Constitution . . . is a law for rulers and people, equally in war and
Muslim secessionists and extreme rightists of the RAM, to wage an in peace, and covers with the shield of its protection all classes of men,
offensive against the government. Certainly, the state through its at all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than that The Bill of Rights provides: jgc:chanrobles.com.ph

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 "Sec. 6. The liberty of abode and of changing the same within the limits
[1866]). 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
Since our days as law students, we have proclaimed the stirring words of of national security, public safety, or public health, as may be provided
Ex Parte Milligan as self-evident truth. But faced with a hard and by law." (Emphasis supplied, Section 6, Art. III, Constitution)
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 To have the petition dismissed, the Solicitor General repeats a ritual
taken away by Government. invocation of national security and public safety which is hauntingly
familiar because it was pleaded so often by petitioner Ferdinand E.
There is only one Bill of Rights with the same interpretation of liberty Marcos to justify his acts under martial law. There is, however, no
and the same guarantee of freedom for both unloved and despised showing of the existence of a law prescribing the limits of the power to
persons on one hand and the rest who are not so stigmatized on the impair and the occasions for its exercise. And except for citing breaches
other. 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
I am, therefore, disturbed by the majority ruling which declares that it have not pointed to any grave exigency which permits the use of
should not be a precedent. We are interpreting the Constitution for only untrammeled Governmental power in this case and the indefinite
one person and constituting him into a class by himself. The suspension of the constitutional right to travel.
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. The respondents’ basic argument is that the issue before us is a political
question beyond our jurisdiction to consider. They contend that the
With all due respect for the majority in the Court, I believe that the issue decision to ban former President Marcos, and his family on grounds of
before us is one of rights and not of power. Mr. Marcos is insensate and national security and public safety is vested by the Constitution in the
would not live if separated from the machines which have taken over the President alone. The determination should not be questioned before this
functions of his kidneys and other organs. To treat him at this point as Court. The President’s finding of danger to the nation should be
one with full panoply of power against whom the forces of Government conclusive on the Court.
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 What is a political question?
his right to come home and die among familiar surroundings?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:chanrob1es virtual 1aw library

Hence, this dissent.

x x x
 "It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political
"It is a well-settled doctrine that political questions are not within the question, which identifies it as essentially a function of the separation of
province of the judiciary, except to the extent that power to deal with powers. Prominent on the surface of any case held to involve a political
such questions has been conferred on the courts by express question is found a textually demonstrable constitutional commitment of
constitutional or statutory provisions. It is not so easy, however, to the issue to a coordinate political department; or a lack of judicially
define the phrase political question, nor to determine what matters fall discoverable and manageable standards for resolving it; or the
within its scope. It is frequently used to designate all questions that lie impossibility of deciding without an initial policy determination of a
outside the scope of the judicial power. More properly, however, it kind clearly for non-judicial discretion; or the impossibility of a court’s
means those questions which, under the constitution, are to be decided undertaking independent resolution without expressing lack of the
by the people in their sovereign capacity, or in regard to which full respect due coordinate branches of government; or an unusual need for
discretionary authority has been delegated to the legislative or executive unquestioning adherence to a political decision already made; or
branch of the government." cralaw virtua1aw library potentiality of embarrassment from multifarious pronouncements by
various departments on one question." cralaw virtua1aw library

We defined a political question in Tañada v. Cuenco (103 Phil. 1051,

1066 [1957[), as follows: cralawnad For a political question to exist, there must be in the Constitution a
power vested exclusively in the President or Congress, the exercise of
"‘In short, the term ‘political question’ connotes, in legal parlance, what which the court should not examine or prohibit. A claim of plenary or
it means in ordinary parlance, namely, a question of policy. In other inherent power against a civil right which claim is not found in a
words, in the language of Corpus Juris Secundum (supra), it refers to specific provision is dangerous. Neither should we validate a roving
those questions which, under the Constitution, are to be decided by the commission allowing public officials to strike where they please and to
people in their sovereign capacity, or in regard to which full override everything which to them represents evil. The entire
discretionary authority has been delegated to the Legislature or Government is bound by the rule of law.
executive branch of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure." cralaw virtua1aw library The respondents have not pointed to any provision of the Constitution
which commits or vests the determination of the question raised to us
The most often quoted definition of political question was made by solely in the President.
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. The authority implied in Section 6 of the Bill of Rights itself does not
Ed. 2d. 663 [1962]). The ingredients of a political question as exist because no law has been enacted specifying the circumstances
formulated in Baker v. Carr are: jgc:chanrobles.com.ph 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 to the Philippines and that such a return would deprive his fanatic
commitment of power may be found in the commander-in-chief clause followers of any further reason to engage in rallies and demonstrations.
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 Court, however, should view the return of Mr. Marcos and his
the writ of habeas corpus or proclaim martial law in the event of family solely in the light of the constitutional guarantee of liberty of
invasion or rebellion, when the public safety requires it. abode and the citizen’s right to travel as against the respondents’
contention that national security and public safety would be endangered
There is, however, no showing, not even a claim that the followers of by a grant of the petition.
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 Apart from the absence of any text in the Constitution committing the
suspend the privilege of the writ of habeas corpus or proclaim martial issue exclusively to the President, there is likewise no dearth of
law because of the arrival of Mr. Marcos and his family. To be sure, decisional data, no unmanageable standards which stand in the way of a
there may be disturbances but not of a magnitude as would compel this judicial determination.
Court to resort to a doctrine of non-justiceability and to ignore a plea for
the enforcement of an express Bill of Rights guarantee. 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
The respondents themselves are hardpressed to state who or what be impaired only upon a lawful order of a court. Not by an executive
constitutes a Marcos "loyalist." The constant insinuations that the officer. Not even by the President. Section 6 further provides that the
"loyalist" group is heavily funded by Mr. Marcos and his cronies and right to travel, and this obviously includes the right to travel out of or
that the "loyalists" engaging in rallies and demonstrations have to be back into the Philippines, cannot be impaired except in the interest of
paid individual allowances to do so constitute the strongest indication national security, public safety, or public health, as may be provided by
that the hard core "loyalists" who would follow Marcos right or wrong law.
are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it. chanrobles.com:cralaw:red There is no law setting the limits on a citizen’s right to move from one
part of the country to another or from the Philippines to a foreign
Not every person who would allow Mr. Marcos to come home can be country or from a foreign country to the Philippines. The laws cited by
tagged a "loyalist." It is in the best of Filipino customs and traditions to the Solicitor General — immigration, health, quarantine, passports,
allow a dying person to return to his home and breath his last in his motor vehicle, destierro, probation, and parole — are all inapplicable
native surroundings. Out of the 103 Congressmen who passed the House insofar as the return of Mr. Marcos and family is concerned. There is
resolution urging permission for his return, there are those who dislike absolutely no showing how any of these statutes and regulations could
Mr. Marcos intensely or who suffered under his regime. There are also serve as a basis to bar their coming home.
many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return
There is also no disrespect for a Presidential determination if we grant The dim view of the doctrine’s use was such that when the present
the petition. We would simply be applying the Constitution, in the Constitution was drafted, a broad definition of judicial power was added
preservation and defense of which all of us in Government, the to the vesting in the Supreme Court and statutory courts of said power.
President and Congress included, are sworn to participate. Significantly,
the President herself has stated that the Court has the last word when it The second paragraph of Section 1, Article VIII of the Constitution
comes to constitutional liberties and that she would abide by our provides:jgc:chanrobles.com.ph

decision.
"Judicial power includes the duty of the courts of justice to settle actual
As early as 1983, it was noted that this Court has not been very controversies involving rights which are legally demandable and
receptive to the invocation of the political question doctrine by enforceable, and to determine whether or not there has been a grave
government lawyers. (See Morales, Jr. v. Ponce Enrile, 121 SCRA 538 abuse of discretion amounting to lack or excess of jurisdiction on the
[1983]). part of any branch or instrumentality of the Government." cralaw virtua1aw library

Many of those now occupying the highest positions in the executive This new provision was enacted to preclude this Court from using the
departments, Congress, and the judiciary criticized this Court for using political question doctrine as a means to avoid having to make decisions
what they felt was a doctrine of convenience, expediency, utility or simply because they are too controversial, displeasing to the President or
subservience. Every major challenge to the acts of petitioner Ferdinand Congress, inordinately unpopular, or which may be ignored and not
E. Marcos under his authoritarian regime — the proclamation of martial enforced.
law, the ratification of a new constitution, the arrest and detention of
"enemies of the State" without charges being filed against them, the The framers of the Constitution believed that the free use of the political
dissolution of Congress and the exercise by the President of legislative question doctrine allowed the Court during the Marcos years to fall back
powers, the trial of civilians for civil offenses by military tribunals, the on prudence, institutional difficulties, complexity of issues,
seizure of some of the country’s biggest corporations, the taking over or momentousness of consequences or a fear that it was extravagantly
closure of newspaper offices, radio and television stations and other extending judicial power in the cases where it refused to examine and
forms of media, the proposals to amend the Constitution, etc. — was strike down an exercise of authoritarian power. Parenthetically, at least
invariably met by an invocation that the petition involved a political two of the respondents and their counsel were among the most vigorous
question. It is indeed poetic justice that the political question doctrine so critics of Mr. Marcos (the main petitioner) and his use of the political
often invoked by then President Marcos to justify his acts is now being question doctrine. The Constitution was accordingly amended. We are
used against him and his family. Unfortunately, the Court should not and now precluded by its mandate from refusing to invalidate a political use
is not allowed to indulge in such a persiflage. We are bound by the of power through a convenient resort to the political question doctrine.
Constitution. 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 "How can this Court determine the factual basis in order that it can
we may refuse to resolve. There are still some political questions which ascertain whether or not the president acted arbitrarily in suspending the
only the President, Congress, or a plebiscite may decide. Definitely, the writ when, in the truthful words of Montenegro, with its very limited
issue before us is not one of them. machinery [it] cannot be in better position [than the Executive Branch]
to ascertain or evaluate the conditions prevailing in the Archipelago?
The Constitution requires the Court "to determine whether or not there (At p. 887). The answer is obvious. It must rely on the Executive Branch
has been a grave abuse of discretion amounting to lack or excess of which has the appropriate civil and military machinery for the facts.
jurisdiction." cralaw virtua1aw library This was the method which had to be used in Lansang. This Court relied
heavily on classified information supplied by the military. Accordingly,
How do we determine a grave abuse of discretion? an incongruous situation obtained. For this Court, relied on the very
branch of the government whose act was in question to obtain the facts.
The tested procedure is to require the parties to present evidence. And as should be expected the Executive Branch supplied information
Unfortunately, considerations of national security do not readily lend to support its position and this Court was in no situation to disprove
themselves to the presentation of proof before a court of justice. The them. It was a case of the defendant judging the suit. After all is said and
vital information essential to an objective determination is usually done, the attempt by this Court to determine whether or not the
highly classified and it cannot be rebutted by those who seek to President acted arbitrarily in suspending the writ was a useless and futile
overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93 exercise.
[1905]),the Court was faced with a similar situation. It posed a rhetorical
question. If after investigating conditions in the Archipelago or any part "There is still another reason why this Court should maintain a detached
thereof, the President finds that public safety requires the suspension of attitude and refrain from giving the seal of approval to the act of the
the privilege of the writ of habeas corpus, can the judicial department Executive Branch. For it is possible that the suspension of the writ lacks
investigate the same facts and declare that no such conditions exist? popular support because of one reason or another. But when this Court
declares that the suspension is not arbitrary (because it cannot do
In the effort to follow the "grave abuse of discretion" formula in the otherwise upon the facts given to it by the Executive Branch) it in effect
second paragraph of Section 1, Article VIII of the Constitution, the court participates in the decision-making process. It assumes a task which it is
granted the Solicitor General’s offer that the military give us a closed not equipped to handle; it lends its prestige and credibility to an
door factual briefing with a lawyer for the petitioners and a lawyer for unpopular act."cralaw virtua1aw library

the respondents present. chanrobles.com.ph : virtual law library

The other method is to avail of judicial notice. In this particular case,

The results of the briefing call to mind the concurrence of Justice judicial notice would be the only basis for determining the clear and
Vicente Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 present danger to national security and public safety. The majority of the
[1983]):jgc:chanrobles.com.ph 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 political gains of the past three years" in justifying her firm refusal to
problems are totally unrelated to the Marcos of today and, in fact, are allow the return of Mr. Marcos despite his failing health. (Daily Globe,
led by people who have always opposed him. If we use the problems of front page, February 15, 1989). "Interest of the nation," "national good,"
Government as excuses for denying a person’s right to come home, we and "preserving economic and political gains." cannot be equated with
will never run out of justifying reasons. These problems or others like national security or public order. They are too generic and sweeping to
them will always be with us. 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
Significantly, we do not have to look into the factual bases of the ban the stated grounds of national security, public safety, or public health
Marcos policy in order to ascertain whether or not the respondents acted and with the added requirement that such impairment must be "as
with grave abuse of discretion. Nor are we forced to fall back upon provided by law." The constitutional command cannot be negated by
judicial notice of the implications of a Marcos return to his home to mere generalizations. chanrobles law library : red

buttress a conclusion.
There is an actual rebellion not by Marcos followers but by the New
In the first place, there has never been a pronouncement by the President Peoples’ Army. Feeding as it does on injustice, ignorance, poverty, and
that a clear and present danger to national security and public safety will other aspects at underdevelopment, the Communist rebellion is the
arise if Mr. Marcos and his family are allowed to return to the clearest and most present danger to national security and constitutional
Philippines. It was only after the present petition was filed that the freedoms. Nobody has suggested that one way to quell it would be to
alleged danger to national security and public safety conveniently catch and exile its leaders, Mr. Marcos himself was forced to flee the
surfaced in the respondents’ pleadings. Secondly, President Aquino country because of "peoples’ power." Yet, there is no move to arrest and
herself limits the reason for the ban Marcos policy to — (1) national exile the leaders of student groups, teachers’ organizations, peasant and
welfare and interest and (2) the continuing need to preserve the gains labor federations, transport workers, and government unions whose
achieved in terms of recovery and stability. (See page 7, respondents’ threatened mass actions would definitely endanger national security and
Comment at page 73 of Rollo). Neither ground satisfies the criteria of the stability of government. We fail to see how Mr. Marcos could be a
national security and public safety. The President has been quoted as greater danger.
stating that the vast majority of Filipinos support her position. (The
Journal, front page, January 24, 1989) We cannot validate her stance The fear that Communist rebels, Bangsa Moro secessionists, the
simply because it is a popular one. Supreme Court decisions do not have Honasan ex-soldiers, the hard core loyalists, and other dissatisfied
to be popular as long as they follow the Constitution and the law. The elements would suddenly unite to overthrow the Republic should a
President’s original position "that it is not in the interest of the nation dying Marcos come home is too speculative and unsubstantial a ground
that Marcos be allowed to return at this time" has not changed. (Manila for denying a constitutional right. It is not shown how extremists from
Times, front page, February 7, 1989). On February 11, 1989, the the right and the left who loathe each other could find a rallying point in
President is reported to have stated that "considerations of the highest the coming of Mr. Marcos.
national good dictate that we preserve the substantial economic and
The "confluence theory" of the Solicitor General or what the majority warrant serious consideration. Amendment No. 6 allowed Marcos to
calls "catalytic effect," which alone sustains the claim of danger to issue decrees whenever the Batasang Pambansa failed or was unable to
national security is fraught with perilous implications. Any difficult act adequately on any matter for any reason that in his judgment
problem or any troublesome person can be substituted for the Marcos required immediate action. When the Bill of Rights provides that a right
threat as the catalysing factor. The alleged confluence of NPAs, may not be impaired except in the interest of national security, public
secessionists, radical elements, renegade soldiers, etc., would still be safety, or public health and further requires that a law must provide
present. Challenged by any critic or any serious problem, the when such specifically defined interests are prejudiced or require
Government can state that the situation threatens a confluence of rebel protection, the inaction of Congress does not give reason for the
forces and proceed to ride roughshod over civil liberties in the name of respondents to assume the grounds for its impairment.
national security. Today, a passport is denied. Tomorrow, a newspaper
may be closed. Public assemblies may be prohibited. Human rights may The fact that the Marcoses have been indicted before American federal
be violated. Yesterday, the right to travel of Senators Benigno Aquino, courts does not obstruct us from ruling against an unconstitutional
Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos assertion of power by Philippine officials. Let the United States apply its
and family. Who will be tomorrow’s pariahs? I deeply regret that the laws. We have to be true to our own. chanroblesvirtualawlibrary

Court’s decision to use the political question doctrine in a situation

where it does not apply raises all kinds of disturbing possibilities. 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
I must emphasize that General Renato de Villa, the Chief of Staff of the over the functions of his heart, lungs, and kidneys may hasten his death.
Armed Forces, has personally assured the Court that a rebellion of the The physical condition of Mr. Marcos does not justify our ignoring or
above combined groups will not succeed and that the military is on top refusing to act on his claim to a basic right which is legally demandable
of the situation. Where then is the clear danger to national security? The and enforceable. For his own good, it might be preferable to stay where
Court has taken judicial notice of something which even the military he is. But he invokes a constitutional right. We have no power to deny it
denies. There would be severe strains on military capabilities according to him.
to General de Villa. There would be set-backs in the expected
eradication of the Communist threat. There would be other serious The issuance of a passport may be discretionary but it should not be
problems but all can be successfully contained by the military. I must withheld if to do so would run counter to a constitutional guarantee.
stress that no reference was made to a clear and present danger to Besides, the petitioners are not asking for passports and nothing else.
national security as would allow an overriding of the Bill of Rights. Any travel documents or any formal lifting of the Marcos ban as would
allow international airlines to sell them tickets would suffice.
The Solicitor General’s argument that the failure of Congress to enact a
statute defining the parameters of the right to travel and to freely choose With all due respect for the majority opinion, I disagree with its dictum
one’s abode has constrained the President to fill in the vacuum, is too on the right to travel. I do not think we should differentiate the right to
reminiscent of Amendment No. 6 of the martial law Constitution 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 Of course, the Government can act. It can have Mr. Marcos arrested and
than any other aspect of the right to travel. It was precisely the banning tried in court. The Government has more than ample powers under
by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr., existing law to deal with a person who transgresses the peace and
Jovito Salonga, and scores of other "undesirables" and "threats to imperils public safety. But the denial of travel papers is not one of those
national security" during that unfortunate period which led the framers powers because the Bill of Rights says so. There is no law prescribing
of our present Constitution not only to re-enact but to strengthen the exile in a foreign land as the penalty for hurting the Nation.
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 Considering all the foregoing, I vote to GRANT the petition.
Court’s decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those Bidin, J., dissents.
whom we do not like or those who are against us.
CRUZ, J., dissenting: chanrob1es virtual 1aw library

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has

disclosed a list of former dictators who were barred by their successors It is my belief that the petitioner, as a citizen of the Philippines, is
from returning to their respective countries. There is no showing that the entitled to return to and live — and die — in his own country. I say this
countries involved have constitutions which guarantee the liberty of with a heavy heart but say it nonetheless. That conviction is not
abode and the freedom to travel and that despite such constitutional diminished one whit simply because many believe Marcos to be beneath
protections, the courts have validated the "ban a return" policy. Neither contempt and undeserving of the very liberties he flouted when he was
is it shown that the successors of the listed dictators are as deeply the absolute ruler of this land.
committed to democratic principles and as observant of constitutional
protections as President Aquino. 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
It is indeed regrettable that some followers of the former President are is whether or not, assuming that Marcos is permitted to leave Hawaii
conducting a campaign to sow discord and to divide the nation. (which may depend on the action we take today), the respondents have
Opposition to the government no matter how odious or disgusting is, acted with grave abuse of discretion in barring him from his own
however, insufficient ground to ignore a constitutional guarantee. country.chanrobles law library : red

During the protracted deliberations on this case, the question was asked My reluctant conclusion is that they have, absent the proof they said
— Is the Government helpless to defend itself against a threat to they were prepared to offer, but could not, that the petitioner’s return
national security? Does the President have to suspend the privilege of would prejudice the security of the State.
the writ of habeas corpus or proclaim martial law? Can she not take less
drastic measures? 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 bulk of all conceivable executive power but regard it as an allocation to
arbitrarily. He said it was. Accordingly, the Court, appreciating the the presidential office of the generic powers thereafter stated."
cralaw virtua1aw library

classified nature of the information expected, scheduled a closed-door

hearing on July 25, 1988. The Solicitor General and three I have no illusion that the stand I am taking will be met with paeans of
representatives from the military appeared for the respondents, together praise, considering that Marcos is perhaps the most detested man in the
with former Senator Arturo M. Tolentino, representing the petitioners. entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what
In about two hours of briefing, the government failed dismally to show Justice Cardozo called the "hooting throng" that may make us see things
that the return of Marcos dead or alive would pose a threat to the through the prisms of prejudice. I bear in mind that when I sit in
national security as it had alleged. The fears expressed by its judgment as a member of this Court, I must cast all personal feelings
representatives were based on mere conjectures of political and aside.
economic destabilization without any single piece of concrete evidence
to back up their apprehensions. 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
Amazingly, however, the majority has come to the conclusion that there that still fester and scars that have not healed. And not even of fear, for
exist "factual bases for the President’s decision" to bar Marcos’s return. fear is a phantom. That phantom did not rise when the people stood fast
That is not my recollection of the impressions of the Court after that at EDSA — against the threat of total massacre in defense at last of their
hearing. freedom.

In holding that the President of the Philippines has residual powers in I cannot turn back on the lessons of liberty that I taught for more than
addition to the specific powers granted by the Constitution, the Court is three decades as a professor of Constitutional Law. These principles
taking a great leap backward and reinstating the discredited doctrine have not changed simply because I am now on the Court or a new
announced in Planas v. Gil (67 Phil. 62). This does not square with the administration is in power and the shoe is on the other foot.
announced policy of the Constitutional Commission, which was
precisely to limit rather than expand presidential powers, as a reaction to Like the martyred Ninoy Aquino who also wanted to come back to the
the excesses of the past dictatorship. Philippines against the prohibitions of the government then, Marcos is
entitled to the same right to travel and the liberty of abode that his
I can only repeat Justice Black’s wry observation in the Steel Seizure adversary invoked. These rights are guaranteed by the Constitution to all
Case (343 U.S. 579) that if it was true that the President had been individuals, including the patriot and the homesick and the prodigal son
granted the totality of executive power, "it is difficult to see why our returning, and tyrants and charlatans and scoundrels of every stripe.
forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in I vote to grant the petition.
PARAS, J., dissenting: chanrob1es virtual 1aw library If we do this, our country shall have maintained its regard for
fundamental human rights, for national discipline, and for human
I dissent. Already, some people refer to us as a nation without discipline. compassion.
Are we ready to be also called a society without compassion?
PADILLA, J., dissenting: chanrob1es virtual 1aw library

The issue as to whether or not former President Ferdinand E. Marcos

should be allowed to return to the Philippines may be resolved by I dissent. As I see it, the core issue in this case is, which right will
answering two simple questions: Does he have the right to return to his prevail in the conflict between the right of a Filipino, Ferdinand E.
own country?; and should national safety and security deny him this Marcos, to return to the Philippines, and the right of the Philippine
right? Government to bar such return in the interest of national security and
public safety. In this context, the issue is clearly justiciable involving, as
There is no dispute that the former President is still a Filipino citizen it does, colliding assertions of individual right and governmental power.
and both under the Universal Declaration of Human Rights and the 1987 Issues of this nature more than explain why the 1986 Constitutional
Constitution of the Philippines, he has the right to return to his own Commission, led by the illustrious former Chief Justice Roberto
country except only if prevented by the demands of national safety and Concepcion, incorporated in the 1987 Constitution, the new provision
national security.
chanrobles virtual lawlibrary on the power of Judicial Review, viz: jgc:chanrobles.com.ph

Our Armed Forces have failed to prove this danger. They are bereft of "Judicial power includes the duty of the courts of justice to settle actual
hard evidence, and all they can rely on is sheer speculation. True, there controversies involving rights which are legally demandable and
is some danger but there is no showing as to the extent. enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
It is incredible that one man alone together with his family, who had part of any branch or instrumentality of the Government." Article VIII,
been ousted from this country by popular will, can arouse an entire Section 1, par. 2; (Emphasis supplied)
country to rise in morbid sympathy for the cause he once espoused.
Mr. Marcos invokes in his favor the specific and precise constitutional
It is therefore clear to me, all other opinions to the contrary right of every Filipino to travel which, in the language of the
notwithstanding, that the former President should be allowed to return to Constitution, shall not be impaired "except in the interest of national
our country under the conditions that he and the members of his family security, public safety, or public health, as may be provided by law"
be under house arrest in his hometown in Ilocos Norte, and should (Art. III, Sec. 6). That the right to travel comprises the right to travel
President Marcos or any member of his family die, the body should not within the country, to travel out of the country and to return to the
be taken out of the municipality of confinement and should be buried country (Philippines), is hardly disputable. Short of all such
within ten (10) days from date. components, the right to travel is meaningless. The real question arises
in the interpretation of the qualifications attached by the Constitution to I have given these questions a searching examination. I have carefully
such right to travel. 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
Petitioners contend that, in the absence of restricting legislation, the vain, for convincing evidence that would defeat and overcome the right
right to travel is absolute. I do not agree. It is my view that, with or of Mr. Marcos as a Filipino to return to this country. It appears to me
without restricting legislation, the interest of national security, public that the apprehensions entertained and expressed by the respondents,
safety or public health can justify and even require restrictions on the including those conveyed through the military, do not, with all due
right to travel, and that the clause "as may be provided by law" respect, escalate to proportions of national security or public safety.
contained in Article III, Section 6 of the 1987 Constitution merely They appear to be more speculative than real, obsessive rather than
declares a constitutional leave or permission for Congress to enact laws factual. Moreover, such apprehensions even if translated into realities,
that may restrict the right to travel in the interest of national security, would be "under control," as admitted to the Court by said military
public safety or public health. I do not, therefore, accept the petitioners’ authorities, given the resources and facilities at the command of
submission that, in the absence of enabling legislation, the Philippine government. But, above all, the Filipino people themselves, in my
Government is powerless to restrict travel even when such restriction is opinion, will know how to handle any situation brought about by a
demanded by national security, public safety or public health. The political recognition of Mr. Marcos’ right to return, and his actual return,
power of the State, in particular cases, to restrict travel of its citizens to this country. The Court, in short, should not accept respondents’
finds abundant support in the police power of the State, which may be general apprehensions, concerns and perceptions at face value, in the
exercised to preserve and maintain government as well as promote the light of a countervailing and even irresistible, specific, clear,
general welfare of the greatest number of people. demandable, and enforceable right asserted by a Filipino.

And yet, the power of the State, acting through a government in Deteriorating political, social, economic or exceptional conditions, if
authority at any given time, to restrict travel, even if founded on police any, are not to be used as a pretext to justify derogation of human rights.
power, cannot be absolute and unlimited under all circumstances, much 2
less, can it be arbitrary and irrational.
chanroblesvirtualawlibrary

As a member of the United Nations, the Philippines has obligations

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a under its charter. By adopting the generally accepted principles of
specific constitutional right, i. e., the right to return to the country. 1 international law as part of the law of the land, (Art. II, Sec. 2 of the
Have the respondents presented sufficient evidence to offset or override Constitution), the Philippine government cannot just pay lip service to
the exercise of this right invoked by Mr. Marcos? Stated differently, Art. 13, par. 2 of the Universal Declaration of Human Rights which
have the respondents shown to the Court sufficient factual bases and provides that everyone has the right to leave any country, including his
data which would justify their reliance on national security and public own, and to return to his country. This guarantee is reiterated in Art. XII,
safety in negating the right to return invoked by Mr. Marcos? par. 2 of the International Covenant on Civil and Political Rights which
states that "no one shall be arbitrarily deprived of the right to enter his
own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was 1. Mr. Marcos is a Filipino and, as such, entitled to return to, 5 die and
specifically chosen by the drafters of the Covenant 3 hoping to protect be buried in this country;
an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a 2. respondents have not shown any "hard evidence" or convincing proof
particular sense of justice which falls short of international law or why his right as a Filipino to return should be denied him. All we have
standards. 4 are general conclusions of "national security" and "public safety" in
avoidance of a specific demandable and enforceable constitutional and
The Solicitor General maintains that because the respondents, as alter basic human right to return
egos of the President, have raised the argument of "national security"
and "public safety," it is the duty of this Court to unquestioningly yield 3. the issue of Marcos’ return to the Philippines, perhaps more than any
thereto, thus casting the controversy to the realm of a political question. issue today, requires, of all members of the Court, in what appears to be
I do not agree. I believe that this is one case where the human and an extended political contest, the "cold neutrality of an impartial judge."
constitutional right invoked by one party is so specific, substantial and It is only thus that we fortify the independence of this Court, with
clear that it cannot be overshadowed, much less, nullified by simplistic fidelity, not to any person, party or group but to the Constitution and
generalities; worse, the Court neglects its duty under the Constitution only to the Constitution.
when it allows the theory of political question to serve as a convenient,
and yet, lame excuse for evading what, to me, is its clearly pressing and ACCORDINGLY, I vote to GRANT the petition.
demandable duty to the Constitution.
SARMIENTO, J., dissenting: chanrob1es virtual 1aw library

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, I vote to grant the petition.
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 The only issue that saddles the Court is simply: "whether or not, in the
Philippines in 1989. I still have not found a satisfactory answer to that exercise of the powers granted by the Constitution, the President may
question. Instead, it has become clearer by the day that the drama today prohibit the Marcoses from returning to the Philippines." 1 I therefore
is the same drama in 1983 with the only difference that the actors are in take exception to allusions 2 anent "the capacity of the Marcoses to stir
opposite roles, which really makes one hope, in the national interest, trouble even from afar." 3 I have legitimate reason to fear that my
that the mistake in 1983 should not be made to persist in 1989. brethren, in passing judgment on the Marcoses (insofar as their
"capacity to stir trouble" is concerned), have overstepped the bounds of
To one who owes Mr. Marcos, his wife and followers absolutely judicial restraint, or even worse, convicted them without trial. cralawnad

nothing, personal, political or otherwise, the following are the cogent

and decisive propositions in this case — I also find quite strained what the majority would have as the "real
issues" facing the Court: "The right to return to one’s country," pitted
against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under Faced with the problem of whether or not the time is right to allow the
international law, in truth and in fact exist. There is only one right Marcoses to return to the Philippines, the President is, under the
involved here, whether under municipal or international law: the right of Constitution, constrained to consider these basic principles in arriving at
travel, whether within one’s own country, or to another, and the right to a decision. More than that, having sworn to defend and uphold the
return thereto. The Constitution itself makes no distinctions; let, then, no Constitution, the President has the obligation under the Constitution to
one make a distinction. Ubi lex non distinguit, nec nos distinguere protect the people, promote their welfare and advance the national
debemus. 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
As the majority would indeed have it, the issue is one of power: Does surrendered their sovereign powers to the State for the common good.
the Executive have the power to deny a citizen his right to travel (back Hence, lest the officers of the Government exercising the powers
to the country or to another)? It is a question that, in essence, involves delegated by the people forget and the servants of the people become
the application, and no more, of the provisions of the 1987 rulers, the Constitution reminds everyone that" [s]overeignty resides in
Constitution: chanrob1es virtual 1aw library the people and all government authority emanates from them." [Art. II,
Sec. 1.] 6
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 And finally:chanrob1es virtual 1aw library

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 To the President, the problem is one of balancing the general welfare
by law. 4 and the common good against the exercise of rights of certain
individuals. The power involved is the President’s residual power to
The majority says, with ample help from American precedents, that the protect the general welfare of the people. It is founded on the duty of the
President is possessed of the power, thus: chanrob1es virtual 1aw library 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
On these premises, we hold the view that although the 1987 Constitution not forbiden by the Constitution or the laws that the needs of the nation
imposes limitations on the exercise of specific powers of the President, demanded [See Corwin, supra, at 153]. It is a power borne by the
it maintains intact what is traditionally considered as within the scope of President’s duty to preserve and defend the Constitution. It also may be
"executive power." Corollarily, the powers of the President cannot be viewed as a power implicit in the President’s duty to take care that the
said to be limited only to the specific powers enumerated in the laws are faithfully executed [See Hyman, The American President,
Constitution. In other words, executive power is more than the sum of where the author advances the view that an allowance of discretionary
specific powers so enumerated. 5 power is unavoidable in any government and is best lodged in the
President]. 7
So also:chanrob1es virtual 1aw library
I am not persuaded.
Obviously, none of the twin legal bars exist. There is no law banning the
I. Marcoses from the country; neither is there any court decree banishing
him from Philippine territory.

First: While the Chief Executive exercises powers not found expressly It is to be noted that under the 1973 Constitution, the right to travel is
in the Charter, but has them by constitutional implication, * the latter worded as follows: chanrob1es virtual 1aw library

must yield to the paramountcy of the Bill of Rights. According to

Fernando: "A regime of constitutionalism is thus unthinkable without an Sec. 5. The liberty of abode and of travel shall not be impaired except
assurance of the primacy of a bill of rights. Precisely a constitution upon lawful order of the court, or when necessary in the interest of
exists to assure that in the discharge of the governmental functions, the national security, public safety, or public health. 12
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 Under this provision, the right may be abated: (1) upon a lawful court
boundaries beyond which lies forbidden territory for state action." 8 order, or (2) "when necessary in the interest of national security, public
safety, or public health." 13 Arguably, the provision enabled the Chief
My brethren have not demonstrated, to my satisfaction, how the Executive (Marcos) to moderate movement of citizens, which, Bernas
President may override the direct mandate of the fundamental law. It says, justified such practices as "hamletting", forced relocations, or the
will not suffice, so I submit, to say that the President’s plenitude of establishment of free-fire zones. 14
powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly," so The new Constitution, however, so it clearly appears, has divested the
I borrow J.B.L. Reyes, in his own right, a titan in the field of public law, Executive’s implied power. And, as it so appears the right may be
"this argument . . . rests . . . not upon the text of the [Constitution] .. but impaired only "within the limits provided by law." 15 The President is
upon a mere inference therefrom." 9 For if it were, indeed, the intent of out of the picture.
the Charter to create an exception, that is, by Presidential action, to the
right of travel or liberty of abode and of changing the same other than Admittedly, the Chief Executive is the "sole" judge of all matters
what it explicitly says already ("limits prescribed by law" 10 or "upon affecting national security 16 and foreign affairs; 17 the Bill of Rights
lawful order of the court" 11) — the Charter could have specifically — precisely, a form of check against excesses of officialdom — is, in
declared so. As it is, the lone deterrents to the right in question are: (1) this case, a formidable barrier against Presidential action. (Even on
decree of statute, or (2) lawful judicial mandate. Had the Constitution matters of State security, this Constitution prescribes limits to
intended a third exception, that is, by Presidential initiative, it could Executive’s powers as Commander-in-Chief)
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 Second: Assuming, ex hypothesi, that the President may legally act, the
legislative, judicial, and executive processes. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph 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 The power of the President, so my brethren declaim, "calls for the
public health?" What appears in the records are vehement insistences exercise of the President’s power as protector of peace." 21
that Marcos does pose a threat to the national good — and yet, at the
same time, we have persistent claims, made by the military top brass This is the self-same falsehood Marcos foisted on the Filipino people to
during the lengthy closed-door hearing on July 25, 1989, that "this justify the authoritarian rule. It also means that we are no better than he
Government will not fall" should the former first family in exile step on was.
Philippine soil. Which is which?
That" [t]he power of the President to keep the peace is not limited
At any rate, it is my opinion that we can not leave that determination merely to exercising the commander-in-chief powers in times of
solely to the Chief Executive. The Court itself must be content that the emergency or to leading the State against external and internal threats to
threat is not only clear, but more so, present. 18 its existence," 22 is a bigger fantasy: It not only summons the martial
law decisions of pre- "EDSA" (especially with respect to the detestable
That the President "has the obligation under the Constitution to protect Amendment No. 6), it is inconsistent with the express provisions of the
the people . . . :" 19 is an obligation open to no doubt. But the question, commander-in chief clause of the 1987 Charter, a -Charter that has
and so I ask again and again, is: From whom? If we say "from Marcos," perceptibly reduced the Executive’s power; vis-a-vis its 1973
we unravel chinks in our political armor. It also flies in the face of counterpart. 23
claims, so confidently asserted, that "this Government will not fall" even
if we allowed Marcos to return. II.

It flies, finally, in the face of the fact that a good number of the
henchmen, trusted allies, implementors of martial law, and pathetic The undersigned would be lacking in candor to conceal his dislike, to
parasites of the ex-first couple are, in fact, in the Government, in the say the least, for Marcos. Because of Marcos, the writer of this dissent
comfort of its offices, and or at the helm of its key agencies. Let us not, lost a son. ** His son’s only "offense" was that he openly and
therefore, joke ourselves of moral factors warranting the continued unabatedly criticized the dictator, his associates, and his military
banishment of Marcos. Morality is the last refuge of the self-righteous. machinery. He would pay dearly for it; he was arrested and detained,
without judicial warrant or decision, for seven months and seven days.
Third: The problem is not of balancing the general welfare against the He was held incommunicado a greater part of the time, in the military
exercise of individual liberties. 20 As I indicated, not one shred of stockade of Camp Crame. In his last week in detention, he was,
evidence, let alone solid evidence, other than surmises of possibilities, grudgingly, hospitalized (prison hospital) and confined for chronic
has been shown to justify the "balancing act" referred to. Worse, these asthma. The deplorable conditions of his imprisonment exacerbated his
conjectures contradict contentions that as far as Philippine society is delicate health beyond cure. He died, on November 11, 1977, a martyr
concerned, Marcos is "history." on the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos’ The majority started this inquiry on the question of power. I hold that
ruthless apparatchiki. On August 14, 1979, he was, along with former the President, under the present Constitution and existing laws, does not
President Diosdado Macapagal, and Congressmen Rogaciano Mercado have it. Mandamus, I submit, lies.
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 Endnotes:
Philippines), a book extremely critical of martial rule, published by him
and former Congressman Concordia, authored by President Macapagal
** The Philippine presidency under the 1935 Constitution
and translated into Tagalog by Congressman Rogaciano Mercado. In
was patterned in large measure after the American
addition, they were also all accused of libel in more than two dozens of
presidency. But at the outset, it must be pointed out that
criminal complaints filed by the several military officers named in the
the Philippine government established under the
"condemned" book as having violated the human rights of dissenters,
constitutions of 1935, 1973 and 1987 is a unitary
and for other crimes, in the office of the Provincial Fiscal of Rizal. It
government with general powers unlike that of the United
had to take the events at "EDSA" to set them free from house arrest and
States which is a federal government with limited and
these political offenses. I am for Marcos’ return not because I have a
enumerated powers. Even so, the powers of the president
score to settle with him. Ditto’s death or my arrest are scores that can
of the United States have through the years grown,
not be settled.
developed and taken shape as students of that presidency
have demonstrated.
I feel the ex-President’s death abroad (presented in the dailies as
"imminent") would leave him "unpunished" for his crimes to country
FERNAN, C.J., concurring:
and countrymen. If punishment is due, let this leadership inflict it. But
chanrob1es virtual 1aw library

let him stand trial and accord him due process.

1. From the speech "Restrictions on Human Rights -
States of Emergency, National Security, Public Safety and
Modesty aside, I have staunchly and consistently advocated the human
Public Order" delivered at the Lawasia Seminar on
right of travel and movement and the liberty of abode. 25 We would
Human Rights, Today and Tomorrow: The Role of
have betrayed our own ideals if we denied Marcos his rights. It is his
Human Rights Commissions and Other Organs, at the
constitutional right, a right that can not be abridged by personal hatred,
Manila Hotel on August 27, 1988.
fear, founded or unfounded, and by speculations of the man’s "capacity"
"to stir trouble." Now that the shoe is on the other foot, let no more of
PADILLA, J.: dissenting:
human rights violations be repeated against any one, friend or foe. In a
chanrob1es virtual 1aw library

democratic framework, there is no such thing as getting even. chanrobles virtual lawlibrary

1. In addition, he invokes the right as a basic human right

recognized by the Universal Declaration of Human
Rights.
 6. Supra, 20-21.
2. S.P. Marks, Principles and Norms of Human Rights
Applicable in Emergency Situations: Underdevelopment, 7. Supra, 21-22.
Catastrophies and Armed Conficts, The International
Dimensions of Human Rights, Vol. 1 Unesco, 1982, pp. *. But see Cruz, J., Dissenting.
175-204.
8. FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.)
3. P. Hassan, The Word "Arbitrary" as used in the
Universal Declaration of Human Rights: "Illegal or 9. Republic v. Quasha, No. L-30299, August 17, 1972, 46
Unjust", 10 Harv. Int. L.J., p. 225 (1969). SCRA 160, 169.

4. F.C. Newman and K. Vasak, Civil and Political Rights, 10. CONST., supra.
The International Dimensions of Human Rights, pp.
135-166. 11. Supra.

5. As to whether the U.S. Federal Government will allow 12. CONST. (1973), art. IV, sec. 5.
Mr. Marcos to leave the United States, is beyond the
issues in this case; similarly, as to how the Philippine 13. Supra.
government should deal with Mr. Marcos upon his return
is also outside of the issues in this case. 14. See BERNAS, THE CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES, 263 (1987 ed.).
SARMIENTO, J.: dissenting: chanrob1es virtual 1aw library

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

1. Decision, 4.
16. See supra, art. VlI, sec. 18.
2. See supra, 1-4.
17. See Go Tek v. Deportation Board, No L-23846,
3. Supra, 2. September 9, 1977, 79 SCRA 17.

4. CONST., art. III, sec. 6. 18. See Lansang v. Garcia, Nos. L-33964, 33965, 33973,
33982, 34004, 34013, 34039, 34265, and 34339,
5. Decision, supra, 18; emphasis in the original. December 11, 1971, 42 SCRA 448, 480.
19. Decision, supra, 21.

20. Supra.

21. Supra.

22. Supra, 22.

23. See CONST. (1987), art. VII, sec. 18, supra.

**. Abraham ("Ditto") Sarmiento, Jr., then

Editor-in-Chief, Philippine Collegian (1975-1976),
official student organ of the University of the Philippines.
He was detained in the military stockade for common
criminals from January to August, 1976.

24. SPI No. 79-347 ("For: Violation of Presidential

Decree No. 90 and Article 142 of the Revised Penal Code,
as amended" - The Judge Advocate General’s Office,
AFP), Special Civil Action, G.R. No. 54180, Diosdado
Macapagal, Rogaciano M. Mercado, Manuel A.
Concordia, and Abraham F. Sarmiento, Petitioners, v. The
Preliminary Investigating Panel in SPI No. 79-347
[Hamilton B. Dimaya, Brigadier General, AFP, The Judge
Advocate General, Chairman; Leon O. Ridao, Colonel,
JAGS (GSC), Deputy Judge Advocate General, Member;
and Amor B. Felipe, Colonel, JAGS (GSC) Executive
Officer, Member], and the Minister of National Defense,
Respondents - Supreme Court.

25. See Santos v. The Special Committee on Travel, Et

Al., G.R. No. L-45748, June 28, 1977, of which the
undersigned was the counsel of the petitioner.