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Republic of the Philippines

SUPREME COURT Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR.,IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIOARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINECONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,CONRADO F. ESTRELLA, petitioners,vs.HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ,MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their

capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary ofJustice, Immigration Commissioner, Secretary of National Defense and Chief ofStaff, respectively, respondents.

CORTES, J .:

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

We recall that in February 1986, Ferdinand E. Marcos was deposed from thepresidency via the non-violent "people power" revolution and forced into exile. In hisstead, Corazon C. Aquino was declared President of the Republic under a revolutionarygovernment. Her ascension to and consilidation of power have not been unchallenged.The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeoverof television station Channel 7 by rebel troops led by Col. Canlas with the support of"Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiouslyreturn from Hawii with mercenaries aboard an aircraft chartered by a Lebanese armsdealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of theMarcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their

followers in the country. The ratification of the 1987 Constitution enshrined the victory of"people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino'spresidency. This did not, however, stop bloody challenges to the government. On

August 28, 1987, Col. Gregorio Honasan, one of the major players in the FebruaryRevolution, led a failed coup that left scores of people, both combatants and civilians,dead. There were several other armed sorties of lesser significance, but the messagethey conveyed was the same — a split in the ranks of the military establishment that



thraetened civilian supremacy over military and brought to the fore the realization thatcivilian government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elementsand among rabid followers of Mr. Marcos. There are also the communist insurgency and

the seccessionist movement in Mindanao which gained ground during the rule of Mr.Marcos, to the extent that the communists have set up a parallel government of theirown on the areas they effectively control while the separatist are virtually free to moveabout in armed bands. There has been no let up on this groups' determination to wrestpower from the govermnent. Not only through resort to arms but also to through the useof propaganda have they been successful in dreating chaos and destabilizing thecountry.

Nor are the woes of the Republic purely political. The accumulated foreign debt and theplunder of the nation attributed to Mr. Marcos and his cronies left the economydevastated. The efforts at economic recovery, three years after Mrs. Aquino assumed

office, have yet to show concrete results in alleviating the poverty of the masses, whilethe recovery of the ill-gotten wealth of the Marcoses has remained elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines todie. But Mrs. Aquino, considering the dire consequences to the nation of his return at atime when the stability of government is threatened from various directions and theeconomy is just beginning to rise and move forward, has stood firmly on the decision tobar the return of Mr. Marcos and his family.

The Petition

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

This petition for mandamus and prohibition asks the Courts to order the respondents toissue travel documents to Mr. Marcos and the immediate members of his family and toenjoin the implementation of the President's decision to bar their return to thePhilippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers grantedby the Constitution, the President may prohibit the Marcoses from returning to thePhilippines.

According to the petitioners, the resolution of the case would depend on the resolutionof the following issues:



1. Does the President have the power to bar the return of former PresidentMarcos and family to the Philippines?

a. Is this a political question?

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

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

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied

with in making such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensedwith, has the President's decision, including the groundsupon which it was based, been made known to petitioners sothat they may controvert the same?

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

d. Assuming that the Court may inquire as to whether the return of formerPresident Marcos and his family is a clear and present danger to nationalsecurity, public safety, or public health, have respondents establishedsuch fact?

3. Have the respondents, therefore, in implementing the President'sdecision to bar the return of former President Marcos and his family, acted

and would be acting without jurisdiction, or in excess of jurisdiction, or withgrave abuse of discretion, in performing any act which would effectivelybar the return of former President Marcos and his family to thePhilippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses toreturn to the Philippines is guaranteed under the following provisions of the Bill ofRights, to wit:



Section 1. No person shall be deprived of life, liberty, or property withoutdue process of law, nor shall any person be denied the equal protection ofthe laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limitsprescribed by law shall not be impaired except upon lawful order of thecourt. Neither shall the right to travel be impaired except in the interest ofnational security, public safety, or public health, as may be provided bylaw.

The petitioners contend that the President is without power to impair the liberty of abodeof the Marcoses because only a court may do so "within the limits prescribed by law."Nor may the President impair their right to travel because no law has authorized her todo so. They advance the view that before the right to travel may be impaired by any

authority or agency of the government, there must be legislation to that effect.

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

The Universal Declaration of Human Rights provides:

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

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

return to his country.

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

Article 12

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

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

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



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

On the other hand, the respondents' principal argument is that the issue in this caseinvolves a political question which is non-justiciable. According to the Solicitor General:

As petitioners couch it, the question involved is simply whether or notpetitioners Ferdinand E. Marcos and his family have the right to travel andliberty of abode. Petitioners invoke these constitutional rights in vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether ornot petitioners Ferdinand E. Marcos and family have the right to return tothe Philippines and reside here at this time in the face of the determinationby the President that such return and residence will endanger nationalsecurity and public safety.

It may be conceded that as formulated by petitioners, the question is not apolitical question as it involves merely a determination of what the lawprovides on the matter and application thereof to petitioners Ferdinand E.Marcos and family. But when the question is whether the two rightsclaimed by petitioners Ferdinand E. Marcos and family impinge on orcollide with the more primordial and transcendental right of the State tosecurity and safety of its nationals, the question becomes political and thisHonorable Court can not consider it.

There are thus gradations to the question, to wit:

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

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

Is there danger to national security and public safety if petitionersFerdinand E. Marcos and family shall return to the Philippines and

establish their residence here? This is now a political question which thisHonorable Court can not decide for it falls within the exclusive authorityand competence of the President of the Philippines. [Memorandum forRespondents, pp. 9-11; Rollo, pp. 297-299.]

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



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

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

Respondents also point out that the decision to ban Mr. Marcos and family fromreturning to the Philippines for reasons of national security and public safety hasinternational precedents. Rafael Trujillo of the Dominican Republic, Anastacio SomozaJr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk ofEgypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez ofVenezuela were among the deposed dictators whose return to their homelands was

prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S.Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope ofpresidential power and its limits. We, however, view this issue in a different light.

Although we give due weight to the parties' formulation of the issues, we are not boundby its narrow confines in arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines ofthe right to travel and the import of the decisions of the U.S. Supreme Court in theleading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig

v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to traveland recognized exceptions to the exercise thereof, respectively.

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



the right to return to one's country in the same context as those pertaining to the libertyof abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in theBill of Rights, which treats only of the liberty of abode and the right to travel, but it is our

well-considered view that the right to return may be considered, as a generally acceptedprinciple of international law and, under our Constitution, is part of the law of the land[Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right totravel and enjoys a different protection under the International Covenant of Civil andPolitical Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports forthe purpose of effectively exercising the right to travel are not determinative of this caseand are only tangentially material insofar as they relate to a conflict between executiveaction and the exercise of a protected right. The issue before the Court is novel andwithout precedent in Philippine, and even in American jurisprudence.

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

Having clarified the substance of the legal issue, we find now a need to explain themethodology for its resolution. Our resolution of the issue will involve a two-tieredapproach. We shall first resolve whether or not the President has the power under theConstitution, to bar the Marcoses from returning to the Philippines. Then, we shalldetermine, pursuant to the express power of the Court under the Constitution in ArticleVIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of

discretion amounting to lack or excess of jurisdiction when she determined that thereturn of the Marcose's to the Philippines poses a serious threat to national interest andwelfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three greatbranches of government. To recall the words of Justice Laurel in Angara v. ElectoralCommission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokesand in bold lines, allotment of power to the executive, the legislative and the judicialdepartments of the government." [At 157.1 Thus, the 1987 Constitution explicitly

provides that "[the legislative power shall be vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the Philippines"[Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and insuch lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions notonly establish a separation of powers by actual division [Angara v. ElectoralCommission, supra] but also confer plenary legislative, executive and judicial powerssubject only to limitations provided in the Constitution. For as the Supreme Court inOcampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power



means a grant of all legislative power; and a grant of the judicial power means a grant ofall the judicial power which may be exercised under the government." [At 631-632.1 Ifthis can be said of the legislative power which is exercised by two chambers with acombined membership of more than two hundred members and of the judicial powerwhich is vested in a hierarchy of courts, it can equally be said of the executive power

which is vested in one official the President.

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

the power to address Congress [Art. VII, Sec. 14-23].

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

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

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

We encounter this characteristic of Article 11 in its opening words: "Theexecutive power shall be vested in a President of the United States of

America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]

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



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

For the American Presidency was a peculiarly personal institution. itremained of course, an agency of government subject to unvaryingdemands and duties no remained, of cas President. But, more than most

agencies of government, it changed shape, intensity and ethos accordingto the man in charge. Each President's distinctive temperament andcharacter, his values, standards, style, his habits, expectations,Idiosyncrasies, compulsions, phobias recast the WhiteHouse andpervaded the entire government. The executive branch, said ClarkClifford, was a chameleon, taking its color from the character andpersonality of the President. The thrust of the office, its impact on theconstitutional order, therefore altered from President to President. Aboveall, the way each President understood it as his personal obligation toinform and involve the Congress, to earn and hold the confidence of theelectorate and to render an accounting to the nation and posterity

determined whether he strengthened or weakened the constitutionalorder. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but,rather, that the consideration of tradition and the development of presidential powerunder the different constitutions are essential for a complete understanding of the extentof and limitations to the President's powers under the 1987 Constitution. The 1935Constitution created a strong President with explicitly broader powers than the U.S.President. The 1973 Constitution attempted to modify the system of government into theparliamentary type, with the President as a mere figurehead, but through numerousamendments, the President became even more powerful, to the point that he was also

the de facto Legislature. The 1987 Constitution, however, brought back the presidentialsystem of government and restored the separation of legislative, executive and judicialpowers by their actual distribution among three distinct branches of government withprovision for checks and balances.

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

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



It has been advanced that whatever power inherent in the government that is neitherlegislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of whobetween the Governor-General of the Philippines and the Legislature may vote theshares of stock held by the Government to elect directors in the National Coal Company

and the Philippine National Bank, the U.S. Supreme Court, in upholding the power ofthe Governor-General to do so, said:

...Here the members of the legislature who constitute a majority of the"board" and "committee" respectively, are not charged with theperformance of any legislative functions or with the doing of anythingwhich is in aid of performance of any such functions by the legislature.Putting aside for the moment the question whether the duties devolvedupon these members are vested by the Organic Act in the Governor-General, it is clear that they are not legislative in character, and still moreclear that they are not judicial. The fact that they do not fall within the

authority of either of these two constitutes logical ground for concludingthat they do fall within that of the remaining one among which the powersof government are divided ....[At 202-203; Emphasis supplied.]

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

The great ordinances of the Constitution do not establish and divide fieldsof black and white. Even the more specific of them are found to terminate

in a penumbra shading gradually from one extreme to the other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguiseit by veiling words we do not and cannot carry out the distinction betweenlegislative and executive action with mathematical precision and divide thebranches into watertight compartments, were it ever so desirable to do so,which I am far from believing that it is, or that the Constitution requires. [At210- 211.]

The Power Involved

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



Admittedly, service and protection of the people, the maintenance of peace and order,the protection of life, liberty and property, and the promotion of the general welfare areessentially ideals to guide governmental action. But such does not mean that they areempty words. Thus, in the exercise of presidential functions, in drawing a plan ofgovernment, and in directing implementing action for these plans, or from another point

of view, in making any decision as President of the Republic, the President has toconsider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses toreturn to the Philippines, the President is, under the Constitution, constrained toconsider these basic principles in arriving at a decision. More than that, having sworn todefend and uphold the Constitution, the President has the obligation under theConstitution to protect the people, promote their welfare and advance the nationalinterest. It must be borne in mind that the Constitution, aside from being an allocation ofpower is also a social contract whereby the people have surrendered their sovereignpowers to the State for the common good. Hence, lest the officers of the Government

exercising the powers delegated by the people forget and the servants of the peoplebecome rulers, the Constitution reminds everyone that "[s]overeignty resides in thepeople and all government authority emanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to returnto the country are the deposed dictator and his family at whose door the travails of thecountry are laid and from whom billions of dollars believed to be ill-gotten wealth aresought to be recovered. The constitutional guarantees they invoke are neither absolutenor inflexible. For the exercise of even the preferred freedoms of speech andofexpression, although couched in absolute terms, admits of limits and must beadjusted to the requirements of equally important public interests [Zaldivar v.

Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the commongood against the exercise of rights of certain individuals. The power involved is thePresident's residual power to protect the general welfare of the people. It is founded onthe duty of the President, as steward of the people. To paraphrase Theodore Roosevelt,it is not only the power of the President but also his duty to do anything not forbidden bythe Constitution or the laws that the needs of the nation demand [See Corwin, supra, at153]. It is a power borne by the President's duty to preserve and defend theConstitution. It also may be viewed as a power implicit in the President's duty to takecare that the laws are faithfully executed [see Hyman, The American President , wherethe author advances the view that an allowance of discretionary power is unavoidable inany government and is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as protectorof the peace. Rossiter The American Presidency ].The power of the President to keepthe peace is not limited merely to exercising the commander-in-chief powers in times ofemergency or to leading the State against external and internal threats to its existence.The President is not only clothed with extraordinary powers in times of emergency, but



is also tasked with attending to the day-to-day problems of maintaining peace and orderand ensuring domestic tranquility in times when no foreign foe appears on the horizon.Wide discretion, within the bounds of law, in fulfilling presidential duties in times ofpeace is not in any way diminished by the relative want of an emergency specified inthe commander-in-chief provision. For in making the President commander-in-chief the

enumeration of powers that follow cannot be said to exclude the President's exercisingas Commander-in- Chief powers short of the calling of the armed forces, or suspendingthe privilege of the writ of habeas corpus or declaring martial law, in order to keep thepeace, and maintain public order and security.

That the President has the power under the Constitution to bar the Marcose's fromreturning has been recognized by memembers of the Legislature, and is manifested bythe Resolution proposed in the House of Representatives and signed by 103 of itsmembers urging the President to allow Mr. Marcos to return to the Philippines "as agenuine unselfish gesture for true national reconciliation and as irrevocable proof of ourcollective adherence to uncompromising respect for human rights under the Constitution

and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does notquestion the President's power to bar the Marcoses from returning to the Philippines,rather, it appeals to the President's sense of compassion to allow a man to come hometo die in his country.

What we are saying in effect is that the request or demand of the Marcoses to beallowed to return to the Philippines cannot be considered in the light solely of theconstitutional provisions guaranteeing liberty of abode and the right to travel, subject tocertain exceptions, or of case law which clearly never contemplated situations evenremotely similar to the present one. It must be treated as a matter that is appropriatelyaddressed to those residual unstated powers of the President which are implicit in and

correlative to the paramount duty residing in that office to safeguard and protect generalwelfare. In that context, such request or demand should submit to the exercise of abroader discretion on the part of the President to determine whether it must be grantedor denied.

The Extent of Review

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

The present Constitution limits resort to the political question doctrine and broadens thescope of judicial inquiry into areas which the Court, under previous constitutions, wouldhave normally left to the political departments to decide. But nonetheless there remainissues beyond the Court's jurisdiction the determination of which is exclusively for thePresident, for Congress or for the people themselves through a plebiscite orreferendum. We cannot, for example, question the President's recognition of a foreign



government, no matter how premature or improvident such action may appear. Wecannot set aside a presidential pardon though it may appear to us that the beneficiary istotally undeserving of the grant. Nor can we amend the Constitution under the guise ofresolving a dispute brought before us because the power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on thepolitical question doctrine. The deliberations of the Constitutional Commission cited bypetitioners show that the framers intended to widen the scope of judicial review but theydid not intend courts of justice to settle all actual controversies before them. Whenpolitical questions are involved, the Constitution limits the determination to whether ornot there has been a grave abuse of discretion amounting to lack or excess of

jurisdiction on the part of the official whose action is being questioned. If grave abuse isnot established, the Court will not substitute its judgment for that of the officialconcerned and decide a matter which by its nature or by law is for the latter alone todecide. In this light, it would appear clear that the second paragraph of Article VIII,Section 1 of the Constitution, defining "judicial power," which specifically empowers the

courts to determine whether or not there has been a grave abuse of discretion on thepart of any branch or instrumentality of the government, incorporates in the fundamentallaw the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power tosuspend the privilege of the writ of habeas corpus under specifiedconditions. Pursuant to the principle of separation of powers underlyingour system of government, the Executive is supreme within his ownsphere. However, the separation of powers, under the Constitution, is notabsolute. What is more, it goes hand in hand with the system of checks

and balances, under which the Executive is supreme, as regards thesuspension of the privilege, but only if and when he acts within the spherealloted to him by the Basic Law, and the authority to determine whether ornot he has so acted is vested in the Judicial Department, which, in thisrespect, is, in turn, constitutionally supreme. In the exercise of suchauthority, the function of the Court is merely to check — not to supplantthe Executive, or to ascertain merely whether he has gone beyond theconstitutional limits of his jurisdiction, not to exercise the power vested inhim or to determine the wisdom of his act [At 479-480.]

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

We find that from the pleadings filed by the parties, from their oral arguments, and thefacts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces



of the Philippines and the National Security Adviser, wherein petitioners andrespondents were represented, there exist factual bases for the President's decision..

The Court cannot close its eyes to present realities and pretend that the country is notbesieged from within by a well-organized communist insurgency, a separatist movement

in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder withimpunity of military men, police officers and civilian officials, to mention only a few. Thedocumented history of the efforts of the Marcose's and their followers to destabilize thecountry, as earlier narrated in this ponencia bolsters the conclusion that the return of theMarcoses at this time would only exacerbate and intensify the violence directed againstthe State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. Themilitary establishment has given assurances that it could handle the threats posed byparticular groups. But it is the catalytic effect of the return of the Marcoses that mayprove to be the proverbial final straw that would break the camel's back. With these

before her, the President cannot be said to have acted arbitrarily and capriciously andwhimsically in determining that the return of the Marcoses poses a serious threat to thenational interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause theescalation of violence against the State, that would be the time for the President to stepin and exercise the commander-in-chief powers granted her by the Constitution tosuppress or stamp out such violence. The State, acting through the Government, is notprecluded from taking pre- emptive action against threats to its existence if, though stillnascent they are perceived as apt to become serious and direct. Protection of thepeople is the essence of the duty of government. The preservation of the State the

fruition of the people's sovereignty is an obligation in the highest order. The President,sworn to preserve and defend the Constitution and to see the faithful execution thelaws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recoverfrom the hardships brought about by the plunder of the economy attributed to theMarcoses and their close associates and relatives, many of whom are still here in thePhilippines in a position to destabilize the country, while the Government has barelyscratched the surface, so to speak, in its efforts to recover the enormous wealth stashedaway by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continuallyincreasing burden imposed on the economy by the excessive foreign borrowing duringthe Marcos regime, which stifles and stagnates development and is one of the rootcauses of widespread poverty and all its attendant ills. The resulting precarious state ofour economy is of common knowledge and is easily within the ambit of judicial notice.

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



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

SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

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

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

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

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

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Militaryrebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. Ahundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attackedVillamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air Force



Strike wing commander and his deputy hostage. Troops on board several vehicles attempted to enterGate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

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

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of thegovernment resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms andammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the groupmembers were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessfulplot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR tomobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for the

projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people power"movement was neutralized thru checkpoints set up by the authorities along major road arteries where themembers were arrested or forced to turn back.

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

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is

one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification fordisallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of theMarcoses from the Philippines came about as an unexpected, but certainly welcomed, result of theunprecedented peoples power" revolution. Millions of our people braved military tanks and firepower, keptvigil, prayed, and in countless manner and ways contributed time, effort and money to put an end to anevidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines was amoral victory for the Filipino people; and the installation of the present administration, a realization of andobedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,compassion and even Filipino tradition. The political and economic gains we have achieved during thepast three years are however too valuable and precious to gamble away on purely compassionateconsiderations. Neither could public peace, order and safety be sacrificed for an individual's wish to die in

his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative,which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses fromreturning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shieldof its protection all classes of men, at all times, and under all circumstances. No doctrine involving morepernicious consequences was ever invented by the wit of man than that any of its provisions can be



suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281[1866])

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

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

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We areinterpreting the Constitution for only one person and constituting him into a class by himself. TheConstitution is a law for all classes of men at all times. To have a person as one class by himself smacksof unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and notof power. Mr. Marcos is insensate and would not live if separated from the machines which have takenover the functions of his kidneys and other organs. To treat him at this point as one with full panoply ofpower against whom the forces of Government should be marshalled is totally unrealistic. The

Government has the power to arrest and punish him. But does it have the power to deny him his right tocome home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

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

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

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

conclusive on the Court.

What is a political question?

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

xxx xxx xxx



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

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

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinaryparlance, namely, a question of policy. In other words, in the language of Corpus JurisSecundum (supra), it refers to 'those questions which, under the Constitution, are to bedecided by the people in their sovereign capacity, or in regard to which full discretionaryauthority has been delegated to the Legislature or executive branch of the Government. Itis concerned with issues dependent upon the wisdom, not legality, of a particularmeasure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr., whopenned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L.Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings inwhich the questions arise may describe a political question, which identifies it asessentially a function of the separation of powers. Prominent on the surface of any caseheld to involve a political question is found a textually demonstrable constitutionalcommitment of the issue to a coordinate political department; or a lack of judiciallydiscoverable and manageable standards for resolving it; or the impossibility of decidingwithout an initial policy determination of a kind clearly for non-judicial discretion; or theimpossibility of a court's undertaking independent resolution without expressing lack of

the respect due coordinate branches of government; or an unusual need forunquestioning adherence to a political decision already made; or potentiality ofembarrassment from multifarious pronouncements by various departments on onequestion.

For a political question to exist, there must be in the Constitution a power vested exclusively in thePresident or Congress, the exercise of which the court should not examine or prohibit. A claim of plenaryor inherent power against a civil right which claim is not found in a specific provision is dangerous. Neithershould we validate a roving commission allowing public officials to strike where they please and tooverride everything which to them represents evil. The entire Government is bound by the rule of law.

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

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

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



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

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

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best ofFilipino customs and traditions to allow a dying person to return to his home and breath his last in hisnative surroundings. Out of the 103 Congressmen who passed the House resolution urging permissionfor his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. Thereare also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and

his family should be permitted to return to the Philippines and that such a return would deprive his fanaticfollowers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of theconstitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents'contention that national security and public safety would be endangered by a grant of the petition.

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

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the samewithin the limits prescribed by law may be impaired only upon a lawful order of a court . Not by an

executive officer. Not even by the President. Section 6 further provides that the right to travel, and thisobviously includes the right to travel out of or back into the Philippines, cannot be impaired except in theinterest of national security, public safety, or public health, as may be provided by law .

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

There is also no disrespect for a Presidential determination if we grant the petition. We would simply beapplying the Constitution, in the preservation and defense of which all of us in Government, the Presidentand Congress included, are sworn to participate. Significantly, the President herself has stated that the

Court has the last word when it comes to constitutional liberties and that she would abide by our decision.

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

Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility orsubservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarianregime the proclamation of martial law, the ratification of a new constitution, the arrest and detention of



"enemies of the State" without charges being filed against them, the dissolution of Congress and theexercise by the President of legislative powers, the trial of civilians for civil offenses by military tribunals,the seizure of some of the country's biggest corporations, the taking over or closure of newspaper offices,radio and television stations and other forms of media, the proposals to amend the Constitution, etc. wasinvariably met by an invocation that the petition involved a political question. It is indeed poetic justice thatthe political question doctrine so often invoked by then President Marcos to justify his acts is now beingused against him and his family. Unfortunately, the Court should not and is not allowed to indulge in sucha persiflage. We are bound by the Constitution.

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

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

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

This new provision was enacted to preclude this Court from using the political question doctrine as ameans to avoid having to make decisions simply because they are too controversial, displeasing to thePresident or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed theCourt during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,momentousness of consequences or a fear that it was extravagantly extending judicial power in the caseswhere it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at leasttwo of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the mainpetitioner) and his use of the political question doctrine. The Constitution was accordingly amended. Weare now precluded by its mandate from refusing to invalidate a political use of power through aconvenient resort to the question doctrine. We are compelled to decide what would have been non-

justiceable under our decisions interpreting earlier fundamental charters.

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

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

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of

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



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

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

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

President acted arbitrarily in suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude andrefrain from giving the seal of approval to the act of the Executive Branch. For it ispossible that the suspension of the writ lacks popular support because of one reason oranother. But when this Court declares that the suspension is not arbitrary (because itcannot do otherwise upon the facts given to it by the Executive Branch) it in effectparticipates in the decision-making process. It assumes a task which it is not equipped tohandle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the onlybasis for determining the clear and present danger to national security and public safety. The majority ofthe 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? Allthese problems are totally unrelated to the Marcos of today and, in fact, are led by people who havealways opposed him. If we use the problems of Government as excuses for denying a person's right tocome home, we will never run out of justifying reasons. These problems or others like them will always bewith us.

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

In the first place, there has never been a pronouncement by the President that a clear and presentdanger to national security and public safety will arise if Mr. Marcos and his family are allowed to return tothe Philippines. It was only after the present petition was filed that the alleged danger to national security

and public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquinoherself limits the reason for the ban Marcos policy to — (1) national welfare and interest and (2) thecontinuing need to preserve the gains achieved in terms of recovery and stability. (See page 7,respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security andpublic safety. The President has been quoted as stating that the vast majority of Filipinos support herposition. (The Journal , front page, January 24,1989) We cannot validate their stance simply because it isa popular one. Supreme Court decisions do not have to be popular as long as they follow the Constitutionand the law. The President's original position "that it is not in the interest of the nation that Marcos beallowed to return at this time" has not changed. (Manila Times, front page, February 7, 1989). OnFebruary 11, 1989, the President is reported to have stated that "considerations of the highest national



good dictate that we preserve the substantial economic and political gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, frontpage, February 15, 1989). "Interest of the nation national good," and "preserving economic and politicalgains," cannot be equated with national security or public order. They are too generic and sweeping toserve as grounds for the denial of a constitutional right. The Bill of Rights commands that the right totravel may not be impaired except on the stated grounds of national security, public safety, or publichealth and with the added requirement that such impairment must be "as provided by law." Theconstitutional command cannot be negated by mere generalizations.

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

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core

loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dyingMarcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It isnot shown how extremists from the right and the left who loathe each other could find a rallying point inthe coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alonesustains the claim of danger to national security is fraught with perilous implications. Any difficult problemor any troublesome person can be substituted for the Marcos threat as the catalysing factor. The allegedconfluence of NPAs, secessionists, radical elements, renegade soldiers, etc., would still be present.Challenged by any critic or any serious problem, the Government can state that the situation threatens aconfluence of rebel forces and proceed to ride roughshod over civil liberties in the name of nationalsecurity. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may beprohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr.

and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow'spariahs I deeply regret that the Court's decision to use the political question doctrine in a situation where itdoes not apply raises all kinds of disturbing possibilities.

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

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



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

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling whilehooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten

his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his claimto a basic right which is legally demandable and enforceable. For his own good, it might be preferable tostay where he is. But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would runcounter to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothingelse. Any travel documents or any formal lifting of the Marcos ban as would allow international airlines tosell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not thinkwe should differentiate the right to return home from the right to go abroad or to move around in thePhilippines. If at all, the right to come home must be more preferred than any other aspect of the right totravel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr.,

Jovito Salonga, and scores of other "undesirables" and "threats to national security" during thatunfortunate period which led the framers of our present Constitution not only to re-enact but to strengthenthe declaration of this right. Media often asks, "what else is new?" I submit that we now have a freedomloving and humane regime. I regret that the Court's decision in this case sets back the gains that ourcountry has achieved in terms of human rights, especially human rights for those whom we do not like orthose who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictatorswho were barred by their successors from returning to their respective countries. There is no showing thatthe countries involved have constitutions which guarantee the liberty of abode and the freedom to traveland that despite such constitutional protections, the courts have validated the "ban a return" policy.Neither is it shown that the successors of the listed dictators are as deeply committed to democraticprinciples and as observant of constitutional protections as President Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sowdiscord and to divide the nation. Opposition to the government no matter how odious or disgusting is,however, insufficient ground to ignore a constitutional guarantee.

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

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

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

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live — and die— in his own country. I say this with a heavy heart but say it nonetheless. That conviction is notdiminished one whit simply because many believe Marcos to be beneath contempt and undeserving ofthe very liberties he flounted when he was the absolute ruler of this land.



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

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but

could not, that the petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if thegovernment was prepared to prove the justification for opposing the herein petition, i.e. that it had notacted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of theinformation expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and threerepresentatives from the military appeared for the respondents, together with former Senator Arturo M.Tolentino, representing the petitioners.

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

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

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

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it wastrue that the President had been granted the totality of executive power, "it is difficult to see why our

forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept theview that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation tothe presidential office of the generic powers thereafter stated."

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

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

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

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitionsof the government then, Marcos is entitled to the same right to travel and the liberty of abode that hisadversary invoked. These rights are guaranteed by the Constitution to all individuals, including the patriot



and the homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of everystripe.

I vote to grant the petition.

PARAS, J., dissenting:

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

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

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

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

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

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

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

discipline, and for human compassion.

PADILLA, J., dissenting:

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

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

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travelwhich, in the language of the Constitution, shall not be impaired "except in the interest of national



security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right totravel comprises the right to travel within the country, to travel out of the country and to return to thecountry (Philippines), is hardly disputable. Short of all such components, the right to travel ismeaningless. The real question arises in the interpretation of the qualifications attached by theConstitution to such right to travel.

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

And yet, the power of the State, acting through a government in authority at any given time, to restrict

travel, even if founded on police power, cannot be absolute and unlimited under all circumstances, muchless, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., theright to return to the country.

1 Have the respondents presented sufficient evidence to offset or override

the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to theCourt sufficient factual bases and data which would justify their reliance on national security and publicsafety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 havesearched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos asa Filipino to return to this country. It appears to me that the apprehensions entertained and expressed by

the respondents, including those conveyed through the military, do not, with all due respect, escalate toproportions of national security or public safety. They appear to be more speculative than real, obsessiverather than factual. Moreover, such apprehensions even if translated into realities, would be "undercontrol," as admitted to the Court by said military authorities, given the resources and facilities at thecommand of government. But, above all, the Filipino people themselves, in my opinion, will know how tohandle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actualreturn, to this country. The Court, in short, should not accept respondents' general apprehensions,concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific,clear, demandable, and enforceable right asserted by a Filipino.

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

2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting thegenerally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of theConstitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the UniversalDeclaration of Human Rights which provides that everyone has the right to leave any country, includinghis own, and to return to his country . This guarantee is reiterated in Art. XII, par. 2 of the InternationalCovenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right toenter his own country ." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by thedrafters of the Covenant

3 hoping to protect an individual against unexpected, irresponsible or excessive

encroachment on his rights by the state based on national traditions or a particular sense of justice whichfalls short of international law or standards.

4



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

During the oral arguments in this case, I asked the Solicitor General how one could validly defend theright of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at thesame time, credibly deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I stillhave not found a satisfactory answer to that question. Instead, it has become clearer by the day that thedrama today is the same drama in 1983 with the only difference that the actors are in opposite roles,which really makes one hope, in the national interest, that the mistake in 1983 should not be made topersist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise,the following are the cogent and decisive propositions in this case —

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in thiscountry;

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

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

only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:


The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted bythe Constitution, the President may prohibit the Marcoses from returning to the Philippines."

1 I therefore

take exception to allusions2 anent "the capacity of the Marcoses to stir trouble even from afar."

3 I have

legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar as their

"capacity to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or even worse,convicted them without trial.

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



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

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by lawshall not be impaired except upon lawful order of the court. Neither shall the right to travel

be impaired except in the interest of national security, public safety, or public health, asmay be provided by law.4

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

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

5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to returnto the Philippines, the President is, under the Constitution, constrained to consider thesebasic principles in arriving at a decision. More than that, having sworn to defend anduphold the Constitution, the President has the obligation under the Constitution to protectthe people, promote their welfare and advance the national interest. It must be borne inmind that the Constitution, aside from being an allocation of power is also a socialcontract whereby the people have surrendered their sovereign powers to the State for thecommon good. Hence, lest the officers of the Government exercising the powersdelegated by the people forget and the servants of the people become rulers, theConstitution reminds everyone that "sovereignty resides in the people and all governmentauthority emanates from them." [Art. II, Sec. 1 . ]

6

And finally:

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

government and is best lodged in the President]. 7

I am not persuaded.

I

First : While the Chief Executive exercises powers not found expressly in the Charter, but has them byconstitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According toFernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a big



of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, thedignity that is the birthright of every human being is duly safeguarded. To be true to its primordial aim aconstitution must lay down the boundaries beyond which he's forbidden territory for state action"

8

My brethren have not demonstrated, to my satisfaction, how the President may override the directmandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude of

powers, as provided in the Constitution, or by sheer constitutional implication, prevail over expressconstitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of publiclaw, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere inferencetherefrom."

9 For if it were, indeed, the intent of the Charter to create an exception, that is, by Presidentialaction, to the right of travel or liberty of abode and of changing the same other than what it explicitly saysalready ("limits prescribed by law"

10 or "upon lawful order of the court"11

the Charter could havespecifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or(2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by Presidentialinitiative, it could have so averred. It would also have made the Constitution, as far as limits to the saidright are concerned, come full circle: Limits by legislative, judicial, and executive processes.

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

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

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

12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in theinterest of national security, public safety, or public health.

13 Arguably, the provision enabled the ChiefExecutive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices as"hamletting", forced relocations, or the establishment of free-fire zones.

14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as

it so appears, the right may be impaired only "within the limits provided by law . 15 The President is out ofthe picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security16

and foreignaffairs;

17 the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a

formidable barrier against Presidential action. (Even on matters of State security, this Constitutionprescribes limits to Executive's powers as Commander-in-Chief.)

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

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

18

That the President "has the obligation under the Constitution to protect the people ... "19 is an obligation

open to no doubt. But the question, and so I ask again and again, is: From whom? If we say "fromMarcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidentlyasserted, that "this Government will not fall" even if we allowed Marcos to return.



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

Third : The problem is not of balancing the general welfare against the exercise of individual liberties.20

As

I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities, hasbeen shown to justify the 'balancing act" referred to. Worse, these conjectures contradict contentions thatas far as Philippine society is concerned, Marcos is "history".

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

21

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

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to itsexistence"

22 is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially

with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of thecommander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive'spowers vis-a-vis its 1973 counterpart.

23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Becauseof Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedlycriticized the dictator, his associates, and his military machinery. He would pay dearly for it; he wasarrested and detained, without judicial warrant or decision, for seven months and seven days. He washeld incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last weekin detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. Thedeplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on

November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki . On August14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen RogacianoMercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting tosedition" and "rumor mongering "

24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas(Democracy In the Philippines), a book extremely critical of martial rule, published by him and formerCongressman Concordia, authored by President Macapagal and translated into Tagalog byCongressman Rogaciano Mercado. In addition, they were also all accused of libel in more than twodozens of criminal complaints filed by the several military officers named in the "condemned" book ashaving violated the human rights of dissenters, and for other crimes, in the office of the Provincial Fiscalof Rizal. It had to take the events at "EDSA" to set them free from house arrest and these politicaloffenses. I am for Marcos' return not because I have a score to settle with him. Ditto's death or my arrest

are scores that can not be settled.

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

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement andthe liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is hisconstitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded, and



by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let nomore of human rights violations be repeated against any one, friend or foe. In a democratic framework,there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the presentConstitution and existing laws, does not have it. Mandamus, I submit, lies.

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

Feliciano, J., is on leave.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, asimmering separatist movement, a restive studentry, widespread labor disputes, militant farmer groups. . .. Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if nothandled properly."

1

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

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from aparticular constitutional clause or article or from an express statutory grant. Their limits are likely todepend on the imperatives of events and contemporary imponderables rather than on abstract theories of

law. History and time-honored principles of constitutional law have conceded to the Executive Branchcertain powers in times of crisis or grave and imperative national emergency. Many terms are applied tothese powers: "residual," "inherent," 44 moral," "implied," "aggregate," 'emergency." whatever they maybe called, the fact is that these powers exist, as they must if the governance function of the ExecutiveBranch is to be carried out effectively and efficiently. It is in this context that the power of the President toallow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact onnational peace and order in these admittedly critical times, said question cannot be withdrawn from thecompetence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear andpresent danger to public order and safety. One needs only to recall the series of destabilizing actionsattempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSARevolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel incident

which occurred barely five (5) months after the People's Power Revolution. Around 10,000 Marcossupporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col. ReynaldoCabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as actingpresident of the Philippines. The public disorder and peril to life and limb of the citizens engendered bythis event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Militaryrebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. Ahundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked



Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air ForceStrike wing commander and his deputy hostage. Troops on board several vehicles attempted to enterGate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their waythrough Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince their

incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of thegovernment resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms andammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the groupmembers were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessfulplot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to

mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for theprojected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people power"movement was neutralized thru checkpoints set up by the authorities along major road arteries where themembers were arrested or forced to turn back.

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

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

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,compassion and even Filipino tradition. The political and economic gains we have achieved during thepast three years are however too valuable and precious to gamble away on purely compassionate

considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die inhis own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative,which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses fromreturning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shieldof its protection all classes of men, at all times, and under all circumstances. No doctrine involving more



pernicious consequences was ever invented by the wit of man than that any of its provisions can besuspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281[1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evidenttruth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The

Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.

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

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We areinterpreting the Constitution for only one person and constituting him into a class by himself. TheConstitution is a law for all classes of men at all times. To have a person as one class by himself smacksof unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and notof power. Mr. Marcos is insensate and would not live if separated from the machines which have takenover the functions of his kidneys and other organs. To treat him at this point as one with full panoply of

power against whom the forces of Government should be marshalled is totally unrealistic. TheGovernment has the power to arrest and punish him. But does it have the power to deny him his right tocome home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

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

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

The respondents' basic argument is that the issue before us is a political question beyond our jurisdictionto consider. They contend that the decision to ban former President Marcos, and his family on grounds ofnational security and public safety is vested by the Constitution in the President alone. The determination

should not be questioned before this Court. The President's finding of danger to the nation should beconclusive on the Court.

What is a political question?

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

x x x x x x x x x



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

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

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinaryparlance, namely, a question of policy. In other words, in the language of Corpus JurisSecundum (supra), it refers to 'those questions which, under the Constitution, are to bedecided by the people in their sovereign capacity, or in regard to which full discretionaryauthority has been delegated to the Legislature or executive branch of the Government. Itis concerned with issues dependent upon the wisdom, not legality, of a particularmeasure.

The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr., whopenned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L.Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings inwhich the questions arise may describe a political question, which Identifies it asessentially a function of the separation of powers. Prominent on the surface of any caseheld to involve a political question is found a textually demonstrable constitutionalcommitment of the issue to a coordinate political department; or a lack of judiciallydiscoverable and manageable standards for resolving it; or the impossibility of decidingwithout an initial policy determination of a kind clearly for non-judicial discretion; or theimpossibility of a court's undertaking independent resolution without expressing lack of

the respect due coordinate branches of government; or an unusual need forunquestioning adherence to a political decision already made; or potentiality ofembarrassment from multifarious pronouncements by various departments on onequestion.

For a political question to exist, there must be in the Constitution a power vested exclusively in thePresident or Congress, the exercise of which the court should not examine or prohibit. A claim of plenaryor inherent power against a civil right which claim is not found in a specific provision is dangerous. Neithershould we validate a roving commission allowing public officials to strike where they please and tooverride everything which to them represents evil. The entire Govern ment is bound by the rule of law.

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

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

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



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

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

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best ofFilipino customs and traditions to allow a dying person to return to his home and breath his last in hisnative surroundings. Out of the 103 Congressmen who passed the House resolution urging permissionfor his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. Thereare also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and

his family should be permitted to return to the Philippines and that such a return would deprive his fanaticfollowers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of theconstitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents'contention that national security and public safety would be endangered by a grant of the petition.

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

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the samewithin the limits prescribed by law may be impaired only upon a lawful order of a court . Not by an

executive officer. Not even by the President. Section 6 further provides that the right to travel, and thisobviously includes the right to travel out of or back into the Philippines, cannot be impaired except in theinterest of national security, public safety, or public health, as may be provided by law .

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

There is also no disrespect for a Presidential determination if we grant the petition. We would simply beapplying the Constitution, in the preservation and defense of which all of us in Government, the Presidentand Congress included, are sworn to participate. Significantly, the President herself has stated that the

Court has the last word when it comes to constitutional liberties and that she would abide by our decision.

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

Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, uti lity orsubservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarianregime the proclamation of martial law, the ratification of a new constitution, the arrest and detention of



"enemies of the State" without charges being filed against them, the dissolution of Congress and theexercise by the President of legislative powers, the trial of civilians for civil offenses by military tribunals,the seizure of some of the country's biggest corporations, the taking over or closure of newspaper offices,radio and television stations and other forms of media, the proposals to amend the Constitution, etc. wasinvariably met by an invocation that the petition involved a political question. It is indeed poetic justice thatthe political question doctrine so often invoked by then President Marcos to justify his acts is now beingused against him and his family. Unfortunately, the Court should not and is not allowed to indulge in sucha persiflage. We are bound by the Constitution.

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

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

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

This new provision was enacted to preclude this Court from using the political question doctrine as ameans to avoid having to make decisions simply because they are too controversial, displeasing to thePresident or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed theCourt during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,momentousness of consequences or a fear that it was extravagantly extending judicial power in the caseswhere it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at leasttwo of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the mainpetitioner) and his use of the political question doctrine. The Constitution was accordingly amended. Weare now precluded by its mandate from refusing to invalidate a political use of power through aconvenient resort to the question doctrine. We are compelled to decide what would have been non-

justiceable under our decisions interpreting earlier fundamental charters.

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

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

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of

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



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

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

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

President acted arbitrarily in suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude andrefrain from giving the seal of approval to the act of the Executive Branch. For it ispossible that the suspension of the writ lacks popular support because of one reason oranother. But when this Court declares that the suspension is not arbitrary (because itcannot do otherwise upon the facts given to it by the Executive Branch) it in effectparticipates in the decision-making process. It assumes a task which it is not equipped tohandle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the onlybasis for determining the clear and present danger to national security and public safety. The majority ofthe 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? Allthese problems are totally unrelated to the Marcos of today and, in fact, are led by people who havealways opposed him. If we use the problems of Government as excuses for denying a person's right tocome home, we will never run out of justifying reasons. These problems or others like them will always bewith us.

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

In the first place, there has never been a pronouncement by the President that a clear and presentdanger to national security and public safety will arise if Mr. Marcos and his family are allowed to return tothe Philippines. It was only after the present petition was filed that the alleged danger to national security

and public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquinoherself limits the reason for the ban Marcos policy to-41) national welfare and interest and (2) thecontinuing need to preserve the gains achieved in terms of recovery and stability. (See page 7,respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security andpublic safety. The President has been quoted as stating that the vast majority of Filipinos support herposition. (The Journal , front page, January 24,1989) We cannot validate their stance simply because it isa popular one. Supreme Court decisions do not have to be popular as long as they follow the Constitutionand the law. The President's original position "that it is not in the interest of the nation that Marcos beallowed to return at this time" has not changed. (Manila Times, front page, February 7, 1989). OnFebruary 11, 1989, the President is reported to have stated that "considerations of the highest national



good dictate that we preserve the substantial economic and political gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, frontpage, February 15, 1989). "Interest of the nation national good," and "preserving economic and politicalgains," cannot be equated with national security or public order. They are too generic and sweeping toserve as grounds for the denial of a constitutional right. The Bill of Rights commands that the right totravel may not be impaired except on the stated grounds of national security, public safety, or publichealth and with the added requirement that such impairment must be "as provided by law." Theconstitutional command cannot be negated by mere generalizations.

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

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core

loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dyingMarcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It isnot shown how extremists from the right and the left who loathe each other could find a rallying point inthe coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alonesustains the claim of danger to national security is fraught with perilous implications. Any difficult problemor any troublesome person can be substituted for the Marcos threat as the catalysing factor. The allegedconfluence of NPAS, secessionists, radical elements, renegade soldiers, etc., would still be present.Challenged by any critic or any serious problem, the Government can state that the situation threatens aconfluence of rebel forces and proceed to ride roughshod over civil liberties in the name of nationalsecurity. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may beprohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr.

and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow'spariahs I deeply regret that the Court's decision to use the political question doctrine in a situation where itdoes not apply raises all kinds of disturbing possibilities.

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

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



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

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling whilehooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten

his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his claimto a basic right which is legally demandable and enforceable. For his own good, it might be preferable tostay where he is. But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would runcounter to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothingelse. Any travel documents or any formal lifting of the Marcos ban as would allow international airlines tosell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not thinkwe should differentiate the right to return home from the right to go abroad or to move around in thePhilippines. If at all, the right to come home must be more preferred than any other aspect of the right totravel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr.,

Jovito Salonga, and scores of other "undesirables" and "threats to national security" during thatunfortunate period which led the framers of our present Constitution not only to re-enact but to strengthenthe declaration of this right. Media often asks, "what else is new?" I submit that we now have a freedomloving and humane regime. I regret that the Court's decision in this case sets back the gains that ourcountry has achieved in terms of human rights, especially human rights for those whom we do not like orthose who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictatorswho were barred by their successors from returning to their respective countries. There is no showing thatthe countries involved have constitutions which guarantee the liberty of abode and the freedom to traveland that despite such constitutional protections, the courts have validated the "ban a return" policy.Neither is it shown that the successors of the listed dictators are as deeply committed to democraticprinciples and as observant of constitutional protections as President Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sowdiscord and to divide the nation. Opposition to the government no matter how odious or disgusting is,however, insufficient ground to ignore a constitutional guarantee.

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

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

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

CRUZ, J., dissenting:

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



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

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but

could not, that the petitioner's return would prejudice the security of the State.

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

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

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

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

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it wastrue that the President had been granted the totality of executive power, "it is difficult to see why our

forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept theview that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation tothe presidential office of the generic powers thereafter stated."

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

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

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

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitionsof the government then, Marcos is entitled to the same right to travel and the liberty of abode that hisadversary invoked. These rights are guaranteed by the Constitution to all individuals, including the patriot



and the homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of everystripe.


PARAS, J., dissenting:

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

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

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

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

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

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

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

discipline, and for human compassion.

PADILLA, J., dissenting:

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

Judicial power includes the duty of the courts of justice to settle actual controversies

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

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travelwhich, in the language of the Constitution, shall not be impaired "except in the interest of nationalsecurity, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right totravel comprises the right to travel within the country, to travel out of the country and to return to the



country (Philippines), is hardly disputable. Short of all such components, the right to travel ismeaningless. The real question arises in the interpretation of the qualifications attached by theConstitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do notagree. It is my view that, with or without restricting legislation, the interest of national security, public

safety or public health can justify and even require restrictions on the right to travel, and that the clause"as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution merely declares aconstitutional leave or permission for Congress to enact laws that may restrict the right to travel in theinterest of national security, public safety or public health. I do not, therefore, accept the petitioners'submission that, in the absence of enabling legislation, the Philippine Government is powerless to restricttravel even when such restriction is demanded by national security, public safety or public health, Thepower of the State, in particular cases, to restrict travel of its citizens finds abundant support in the policepower of the state wich may be exercised to preserve and maintain government as well as promote thegeneral welfare of the greatest number of people.

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

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., theright to return to the country.

1 Have the respondents presented sufficient evidence to offset or override

the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to theCourt sufficient factual bases and data which would justify their reliance on national security and publicsafety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 havesearched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos asa Filipino to return to this country. It appears to me that the apprehensions entertained and expressed bythe respondents, including those conveyed through the military, do not, with all due respect, escalate toproportions of national security or public safety. They appear to be more speculative than real, obsessive

rather than factual. Moreover, such apprehensions even if translated into realities, would be "undercontrol," as admitted to the Court by said military authorities, given the resources and facilities at thecommand of government. But, above all, the Filipino people themselves, in my opinion, will know how tohandle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actualreturn, to this country. The Court, in short, should not accept respondents' general apprehensions,concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific,clear, demandable, and enforceable right asserted by a Filipino.

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

2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting thegenerally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the

Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the UniversalDeclaration of Human Rights which provides that everyone has the right to leave any country, includinghis own, and to return to his country . This guarantee is reiterated in Art. XII, par. 2 of the InternationalCovenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right toenter his own country ." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by thedrafters of the Covenant

3 hoping to protect an individual against unexpected, irresponsible or excessive

encroachment on his rights by the state based on national traditions or a particular sense of justice whichfalls short of international law or standards.

4



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

During the oral arguments in this case, I asked the Solicitor General how one could validly defend theright of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at thesame time, credibly deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I stillhave not found a satisfactory answer to that question. Instead, it has become clearer by the day that thedrama today is the same drama in 1983 with the only difference that the actors are in opposite roles,which really makes one hope, in the national interest, that the mistake in 1983 should not be made topersist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise,the following are the cogent and decisive propositions in this case-

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in thiscountry;

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

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

only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

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