G.R. No.

94284 April 8, 1991

RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional
Trial Court of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents.
Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:p
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that
the Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C.
Silverio vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the
Resolution of 29 June 1990 denying reconsideration, be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised
Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due
time, he posted bail for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of the Information,
respondent People of the Philippines filed an Urgent ex parte Motion to cancel the passport
of and to issue a hold-departure Order against accused-petitioner on the ground that he
had gone abroad several times without the necessary Court approval resulting in
postponements of the arraignment and scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing
the Department of Foreign Affairs to cancel Petitioner's passport or to deny his application
therefor, and the Commission on Immigration to prevent Petitioner from leaving the
country. This order was based primarily on the Trial Court's finding that since the filing of
the Information on 14 October 1985, "the accused has not yet been arraigned because he
has never appeared in Court on the dates scheduled for his arraignment and there is
evidence to show that accused Ricardo C. Silverio, Sr. has left the country and has gone
abroad without the knowledge and permission of this Court" (Rollo, p. 45). Petitioner's
Motion for Reconsideration was denied on 28 July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January
1990. Hence, this Petition for Review filed on 30 July 1990.
After the respective pleadings required by the Court were filed, we resolved to give due
course and to decide the case.
Petitioner contends that respondent Court of Appeals erred in not finding that the Trial
Court committed grave abuse of discretion amounting to lack of jurisdiction in issuing its
Orders, dated 4 April and 28 July 1988, (1) on the basis of facts allegedly patently
erroneous, claiming that the scheduled arraignments could not be held because there was
a pending Motion to Quash the Information; and (2) finding that the right to travel can be

impaired upon lawful order of the Court, even on grounds other than the "interest of
national security, public safety or public health."
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it
is apparent that it was filed long after the filing of the Information in 1985 and only after
several arraignments had already been scheduled and cancelled due to Petitioner's nonappearance. In fact, said Motion to Quash was set for hearing only on 19 February 1988.
Convincingly shown by the Trial Court and conformed to by respondent Appellate Court is
the concurrence of the following circumstances:
1. The records will show that the information was filed on October 14,
1985. Until this date (28 July 1988), the case had yet to be arraigned.
Several scheduled arraignments were cancelled and reset, mostly due to
the failure of accused Silverio to appear. The reason for accused Silverio's
failure to appear had invariably been because he is abroad in the United
States of America;
2. Since the information was filed, until this date, accused Silverio had
never appeared in person before the Court;
3. The bond posted by accused Silverio had been cancelled twice and
warrants of arrest had been issued against him all for the same reason
failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given
accused Silverio more than enough consideration. The limit had long
been reached (Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu,
p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were
not based on erroneous facts, as Petitioner would want this Court to believe. To all
appearances, the pendency of a Motion to Quash came about only after several settings for
arraignment had been scheduled and cancelled by reason of Petitioner's non-appearance.
2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in
finding that the right to travel can be impaired upon lawful order of the Court, even on
grounds other than the "interest of national security, public safety or public health."
To start with, and this has not been controverted by Petitioner, the bail bond he had posted
had been cancelled and Warrants of Arrest had been issued against him by reason, in both
instances, of his failure to appear at scheduled arraignments. Warrants of Arrest having
been issued against him for violation of the conditions of his bail bond, he should be taken
into custody. "Bail is the security given for the release of a person in custody of the law,
furnished by him or a bondsman, conditioned upon his appearance before any court when
so required by the Court or the Rules (1985 Rules on Criminal Procedure, as amended, Rule
114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available at all times
whenever the Court requires his presence operates as a valid restriction of his right to
travel (Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A
person facing criminal charges may be restrained by the Court from leaving the country or,
if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138).
So it is also that "An accused released on bail may be re-arrested without the necessity of a
warrant if he attempts to depart from the Philippines without prior permission of the Court
where the case is pending (ibid., Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the
power of the Courts to curtail the liberty of abode within the limits prescribed by law, it
restricts the allowable impairment of the right to travel only on grounds of interest of
national security, public safety or public health, as compared to the provisions on freedom
of movement in the 1935 and 1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated under one
provision. Article III, Section 1(4) thereof reads:
The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired.
The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel,
thus:
The liberty of abode and of travel shall not be impaired except upon
lawful order of the court or when necessary in the interest of national
security, public safety, or public health (Article IV, Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences and treats
them differently, to wit:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law.
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to
travel only on the grounds of "national security, public safety, or public health."
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the
liberty of travel may be impaired even without Court Order, the appropriate executive
officers or administrative authorities are not armed with arbitrary discretion to impose
limitations. They can impose limits only on the basis of "national security, public safety, or
public health" and "as may be provided by law," a limitive phrase which did not appear in
the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263).

Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on
international travel imposed under the previous regime when there was a Travel Processing
Center, which issued certificates of eligibility to travel upon application of an interested
party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97
SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be construed as
delimiting the inherent power of the Courts to use all means necessary to carry their orders
into effect in criminal cases pending before them. When by law jurisdiction is conferred on
a Court or judicial officer, all auxillary writs, process and other means necessary to carry it
into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court).
Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to
the effect that the condition imposed upon an accused admitted to bail to make himself
available at all times whenever the Court requires his presence operates as a valid
restriction on the right to travel no longer holds under the 1987 Constitution, is far from
tenable. The nature and function of a bail bond has remained unchanged whether under
the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that point
was but a re-affirmation of that laid down long before in People v. Uy Tuising, 61 Phil. 404
(1935).
Petitioner is facing a criminal charge. He has posted bail but has violated the conditions
thereof by failing to appear before the Court when required. Warrants for his arrest have
been issued. Those orders and processes would be rendered nugatory if an accused were
to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the
country. Holding an accused in a criminal case within the reach of the Courts by preventing
his departure from the Philippines must be considered as a valid restriction on his right to
travel so that he may be dealt with in accordance with law. The offended party in any
criminal proceeding is the People of the Philippines. It is to their best interest that criminal
prosecutions should run their course and proceed to finality without undue delay, with an
accused holding himself amenable at all times to Court Orders and processes.
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner,
Ricardo C. Silverio.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE
M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO
E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity
as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice,

Immigration Commissioner, Secretary of National Defense and Chief of Staff,

respectively, respondents.

just beginning to rise and move forward, has stood firmly on the decision to bar the return
of Mr. Marcos and his family.
The Petition

CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly only legal
issues are involved, the Court's decision in this case would undeniably have a profound
effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via
the non-violent "people power" revolution and forced into exile. In his stead, Corazon C.
Aquino was declared President of the Republic under a revolutionary government. Her
ascension to and consilidation of power have not been unchallenged. The failed Manila
Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station
Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with
mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin,
January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their followers in the country. The
ratification of the 1987 Constitution enshrined the victory of "people power" and also
clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not,
however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio
Honasan, one of the major players in the February Revolution, led a failed coup that left
scores of people, both combatants and civilians, dead. There were several other armed
sorties of lesser significance, but the message they conveyed was the same a split in the
ranks of the military establishment that thraetened civilian supremacy over military and
brought to the fore the realization that civilian government could be at the mercy of a
fractious military.
But the armed threats to the Government were not only found in misguided elements and
among rabid followers of Mr. Marcos. There are also the communist insurgency and the
seccessionist movement in Mindanao which gained ground during the rule of Mr. Marcos, to
the extent that the communists have set up a parallel government of their own on the
areas they effectively control while the separatist are virtually free to move about in armed
bands. There has been no let up on this groups' determination to wrest power from the
govermnent. Not only through resort to arms but also to through the use of propaganda
have they been successful in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated.
The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to
show concrete results in alleviating the poverty of the masses, while the recovery of the illgotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die.
But Mrs. Aquino, considering the dire consequences to the nation of his return at a time
when the stability of government is threatened from various directions and the economy is

This case is unique. It should not create a precedent, for the case of a dictator forced out of
office and into exile after causing twenty years of political, economic and social havoc in
the country and who within the short space of three years seeks to return, is in a class by
itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to
issue travel documents to Mr. Marcos and the immediate members of his family and to
enjoin the implementation of the President's decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of
the following issues:
1. Does the President have the power to bar the return of former
President Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest of
"national security, public safety or public health
a. Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been
complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be
dispensed with, has the President's decision, including
the grounds upon which it was based, been made

known to petitioners so that they may controvert the

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

(2) Everyone has the right to leave any country, including his own, and to
return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified
by the Philippines, provides:
Article 12

d. Assuming that the Court may inquire as to whether the return of

former President Marcos and his family is a clear and present danger to
national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President's
decision to bar the return of former President Marcos and his family,
acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act
which would effectively bar the return of former President Marcos and his
family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp.
234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return
to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection
of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.
The petitioners contend that the President is without power to impair the liberty of abode
of the Marcoses because only a court may do so "within the limits prescribed by law." Nor
may the President impair their right to travel because no law has authorized her to do so.
They advance the view that before the right to travel may be impaired by any authority or
agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his
family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.

1) Everyone lawfully within the territory of a State shall, within that

territory, have the right to liberty of movement and freedom to choose
his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (order public), public health or morals or
the rights and freedoms of others, and are consistent with the other
rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents' principal argument is that the issue in this case
involves a political question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not
petitioners Ferdinand E. Marcos and his family have the right to travel
and liberty of abode. Petitioners invoke these constitutional rights in
vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or
not petitioners Ferdinand E. Marcos and family have the right to return to
the Philippines and reside here at this time in the face of the
determination by the President that such return and residence will
endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not
a political question as it involves merely a determination of what the law
provides on the matter and application thereof to petitioners Ferdinand E.
Marcos and family. But when the question is whether the two rights
claimed by petitioners Ferdinand E. Marcos and family impinge on or
collide with the more primordial and transcendental right of the State to
security and safety of its nationals, the question becomes political and
this Honorable Court can not consider it.
There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to

the Philippines and reestablish their residence here? This is clearly a
justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return
to the Philippines and reestablish their residence here even if their return
and residence here will endanger national security and public safety? this
is still a justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which this
Honorable Court can not decide for it falls within the exclusive authority
and competence of the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over
individual rights. In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State
and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to
the Philippines for reasons of national security and public safety has international
precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua,
Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano
Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among
the deposed dictators whose return to their homelands was prevented by their
governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in
Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential
power and its limits. We, however, view this issue in a different light. Although we give due
weight to the parties' formulation of the issues, we are not bound by its narrow confines in
arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of the
right to travel and the import of the decisions of the U.S. Supreme Court in the leading
cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453
U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized
exceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel
would normally connote. Essentially, the right involved is the right to return to one's
country, a totally distinct right under international law, independent from although related
to the right to travel. Thus, the Universal Declaration of Humans Rights and the
International Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the right to enter
one's country as separate and distinct rights. The Declaration speaks of the "right to
freedom of movement and residence within the borders of each state" [Art. 13(l)]
separately from the "right to leave any country, including his own, and to return to his
country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of
movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to
leave any country, including his own." [Art. 12(2)] which rights may be restricted by such
laws as "are necessary to protect national security, public order, public health or morals or
enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to return to one's
country in the same context as those pertaining to the liberty of abode and the right to
travel.
The right to return to one's country is not among the rights specifically guaranteed in the
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our
well-considered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art.
II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel
and enjoys a different protection under the International Covenant of Civil and Political
Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the
purpose of effectively exercising the right to travel are not determinative of this case and
are only tangentially material insofar as they relate to a conflict between executive action
and the exercise of a protected right. The issue before the Court is novel and without
precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can
be limitations on the right to travel in the absence of legislation to that effect is rendered
unnecessary. An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article VIII,
Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined that the return of the
Marcose's to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral

Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides
that "[the legislative power shall be vested in the Congress of the Philippines" Art VI, Sec.
11, "[t]he executive power shall bevested in the President of the Philippines" [Art. VII, Sec.
11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a
separation of powers by actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject only to limitations provided
in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)]
pointed out "a grant of the legislative power means a grant of all legislative power; and a
grant of the judicial power means a grant of all the judicial power which may be exercised
under the government." [At 631-632.1 If this can be said of the legislative power which is
exercised by two chambers with a combined membership of more than two hundred
members and of the judicial power which is vested in a hierarchy of courts, it can equally
be said of the executive power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in
the President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is
meant by executive power" although in the same article it touches on the exercise of
certain powers by the President, i.e., the power of control over all executive departments,
bureaus and offices, the power to execute the laws, the appointing power, the powers
under the commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or international
agreements, the power to submit the budget to Congress, and the power to address
Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the
framers of the Constitution intend that the President shall exercise those specific powers
and no other? Are these se enumerated powers the breadth and scope of "executive
power"? Petitioners advance the view that the President's powers are limited to those
specifically enumerated in the 1987 Constitution. Thus, they assert: "The President has
enumerated powers, and what is not enumerated is impliedly denied to her. Inclusion unius
est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings
to mind the institution of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the
same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those
who think that a constitution ought to settle everything beforehand it
should be a nightmare; by the same token, to those who think that
constitution makers ought to leave considerable leeway for the future
play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The
executive power shall be vested in a President of the United States of
America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different persons
who held the office from Washington to the early 1900's, and the swing from the
presidency by commission to Lincoln's dictatorship, he concluded that "what the
presidency is at any particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it
remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than most
agencies of government, it changed shape, intensity and ethos according
to the man in charge. Each President's distinctive temperament and
character, his values, standards, style, his habits, expectations,
Idiosyncrasies, compulsions, phobias recast the WhiteHouse and
pervaded the entire government. The executive branch, said Clark
Clifford, was a chameleon, taking its color from the character and
personality of the President. The thrust of the office, its impact on the
constitutional order, therefore altered from President to President. Above
all, the way each President understood it as his personal obligation to
inform and involve the Congress, to earn and hold the confidence of the
electorate and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the constitutional
order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but,
rather, that the consideration of tradition and the development of presidential power under
the different constitutions are essential for a complete understanding of the extent of and
limitations to the President's powers under the 1987 Constitution. The 1935 Constitution
created a strong President with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into the parliamentary type,
with the President as a mere figurehead, but through numerous amendments, the President
became even more powerful, to the point that he was also the de facto Legislature. The
1987 Constitution, however, brought back the presidential system of government and
restored the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is the power to enforce
the laws, for the President is head of state as well as head of government and whatever
powers inhere in such positions pertain to the office unless the Constitution itself withholds
it. Furthermore, the Constitution itself provides that the execution of the laws is only one of
the powers of the President. It also grants the President other powers that do not involve
the execution of any provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise ofspecific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so
enumerated,

It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between
the Governor-General of the Philippines and the Legislature may vote the shares of stock
held by the Government to elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to
do so, said:
...Here the members of the legislature who constitute a majority of the
"board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of anything
which is in aid of performance of any such functions by the legislature.
Putting aside for the moment the question whether the duties devolved
upon these members are vested by the Organic Act in the GovernorGeneral, it is clear that they are not legislative in character, and still
more clear that they are not judicial. The fact that they do not fall within
the authority of either of these two constitutes logical ground for
concluding that they do fall within that of the remaining one among
which the powers of government are divided ....[At 202-203; Emphasis
supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent
we find reinforcement for the view that it would indeed be a folly to construe the powers of
a branch of government to embrace only what are specifically mentioned in the
Constitution:
The great ordinances of the Constitution do not establish and divide fields
of black and white. Even the more specific of them are found to
terminate in a penumbra shading gradually from one extreme to the
other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the distinction
between legislative and executive action with mathematical precision
and divide the branches into watertight compartments, were it ever so
desirable to do so, which I am far from believing that it is, or that the
Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of
theGovernment is to serve and protect the people" and that "[t]he maintenance of peace
and order,the protection of life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the blessings of democracy."
[Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are

essentially ideals to guide governmental action. But such does not mean that they are
empty words. Thus, in the exercise of presidential functions, in drawing a plan of
government, and in directing implementing action for these plans, or from another point of
view, in making any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return
to the Philippines, the President is, under the Constitution, constrained to consider these
basic principles in arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the Constitution to protect
the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers to the State for the common
good. Hence, lest the officers of the Government exercising the powers delegated by the
people forget and the servants of the people become rulers, the Constitution reminds
everyone that "[s]overeignty resides in the people and all government authority emanates
from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to
the country are the deposed dictator and his family at whose door the travails of the
country are laid and from whom billions of dollars believed to be ill-gotten wealth are
sought to be recovered. The constitutional guarantees they invoke are neither absolute nor
inflexible. For the exercise of even the preferred freedoms of speech and ofexpression,
although couched in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the people. It is founded on the
duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not
only the power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It
is a power borne by the President's duty to preserve and defend the Constitution. It also
may be viewed as a power implicit in the President's duty to take care that the laws are
faithfully executed [see Hyman, The American President, where the author advances the
view that an allowance of discretionary power is unavoidable in any government and is
best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector of
the peace. Rossiter The American Presidency].The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of emergency, but is
also tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not
in any way diminished by the relative want of an emergency specified in the commanderin-chief provision. For in making the President commander-in-chief the enumeration of
powers that follow cannot be said to exclude the President's exercising as Commander-inChief powers short of the calling of the armed forces, or suspending the privilege of the

writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain
public order and security.
That the President has the power under the Constitution to bar the Marcose's from
returning has been recognized by memembers of the Legislature, and is manifested by the
Resolution proposed in the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish
gesture for true national reconciliation and as irrevocable proof of our collective adherence
to uncompromising respect for human rights under the Constitution and our laws." [House
Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power
to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's
sense of compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed
to return to the Philippines cannot be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations even remotely
similar to the present one. It must be treated as a matter that is appropriately addressed to
those residual unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader discretion on
the part of the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording,
we cannot agree with the Solicitor General that the issue constitutes a political question
which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide. But nonetheless there remain
issues beyond the Court's jurisdiction the determination of which is exclusively for the
President, for Congress or for the people themselves through a plebiscite or referendum.
We cannot, for example, question the President's recognition of a foreign government, no
matter how premature or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary is totally undeserving
of the grant. Nor can we amend the Constitution under the guise of resolving a dispute
brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the
political question doctrine. The deliberations of the Constitutional Commission cited by
petitioners show that the framers intended to widen the scope of judicial review but they
did not intend courts of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the official whose action is being questioned. If grave abuse is not established, the Court
will not substitute its judgment for that of the official concerned and decide a matter which
by its nature or by law is for the latter alone to decide. In this light, it would appear clear

that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial
power," which specifically empowers the courts to determine whether or not there has
been a grave abuse of discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling inLansang v. Garcia [G.R. No.
L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying
our system of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the Constitution, is not
absolute. What is more, it goes hand in hand with the system of checks
and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial Department,
which, in this respect, is, in turn, constitutionally supreme. In the exercise
of such authority, the function of the Court is merely to check not to
supplant the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to exercise the
power vested in him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual
bases for the President to conclude that it was in the national interest to bar the return of
the Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has
acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar
their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the
facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of
the Philippines and the National Security Adviser, wherein petitioners and respondents
were represented, there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a well-organized communist insurgency, a separatist movement in
Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to mention only a few. The documented
history of the efforts of the Marcose's and their followers to destabilize the country, as
earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at
this time would only exacerbate and intensify the violence directed against the State and
instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return of the Marcoses that may prove
to be the proverbial final straw that would break the camel's back. With these before her,
the President cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the national interest
and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to step in
and exercise the commander-in-chief powers granted her by the Constitution to suppress or
stamp out such violence. The State, acting through the Government, is not precluded from
taking pre- emptive action against threats to its existence if, though still nascent they are
perceived as apt to become serious and direct. Protection of the people is the essence of
the duty of government. The preservation of the State the fruition of the people's
sovereignty is an obligation in the highest order. The President, sworn to preserve and
defend the Constitution and to see the faithful execution the laws, cannot shirk from that
responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from
the hardships brought about by the plunder of the economy attributed to the Marcoses and
their close associates and relatives, many of whom are still here in the Philippines in a
position to destabilize the country, while the Government has barely scratched the surface,
so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on
the economy by the excessive foreign borrowing during the Marcos regime, which stifles
and stagnates development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common knowledge and
is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses
would wipe away the gains achieved during the past few years and lead to total economic
collapse. Given what is within our individual and common knowledge of the state of the
economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former
President Marcos and his family at the present time and under present circumstances
poses a serious threat to national interest and welfare and in prohibiting their return to the
Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

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

These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to
the exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived
solely from a particular constitutional clause or article or from an express statutory grant.
Their limits are likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law. History and time-honored principles
of constitutional law have conceded to the Executive Branch certain powers in times of
crisis or grave and imperative national emergency. Many terms are applied to these
powers: "residual," "inherent," 44 moral," "implied," "aggregate," "emergency." whatever
they may be called, the fact is that these powers exist, as they must if the governance
function of the Executive Branch is to be carried out effectively and efficiently. It is in this
context that the power of the President to allow or disallow the Marcoses to return to the
Philippines should be viewed. By reason of its impact on national peace and order in these
admittedly critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a
clear and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist
groups during the EDSA Revolution's aftermath to realize this. The most publicized of these
offensives is the Manila Hotel incident which occurred barely five (5) months after the
People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist
soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at
the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila
and Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio
station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group
struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and
his deputy hostage. Troops on board several vehicles attempted to enter Gate I of Camp
Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced
their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but
having failed to convince their incarcerated members to unite in their cause, had to give up
nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the
military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most
serious attempt to wrest control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered
firearms and ammunition from the Camp Crame Armory during a raid conducted in June
1988. Most of the group members were, however, captured in Antipolo, Rizal. The same

group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the
return of Marcos to the country.

qive substance to their meaning. The Court has permitted a basic freedom enshrined in the
Bill of Rights to be taken away by Government.

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

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

While not all of these disruptive incidents may be traced directly to the Marcoses, their
occurrence militates heavily against the wisdom of allowing the Marcoses' return. Not only
will the Marcoses' presence embolden their followers toward similar actions, but any such
action would be seized upon as an opportunity by other enemies of the State, such as the
Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme
rightists of the RAM, to wage an offensive against the government. Certainly, the state
through its executive branch has the power, nay, the responsibility and obligation, to
prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a
valid justification for disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power"
revolution. Millions of our people braved military tanks and firepower, kept vigil, prayed,
and in countless manner and ways contributed time, effort and money to put an end to an
evidently untenable claim to power of a dictator. The removal of the Marcoses from the
Philippines was a moral victory for the Filipino people; and the installation of the present
administration, a realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made
to sympathy, compassion and even Filipino tradition. The political and economic gains we
have achieved during the past three years are however too valuable and precious to
gamble away on purely compassionate considerations. Neither could public peace, order
and safety be sacrificed for an individual's wish to die in his own country. Verily in the
balancing of interests, the scales tilt in favor of presidential prerogative, which we do not
find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever invented by
the wit of man than that any of its provisions can be suspended during any of the great
exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte
Milligan as self-evident truth. But faced with a hard and delicate case, we now hesitate to

I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting him
into a class by himself. The Constitution is a law for all classes of men at all times. To have
a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of
rights and not of power. Mr. Marcos is insensate and would not live if separated from the
machines which have taken over the functions of his kidneys and other organs. To treat him
at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his right to come home and die among
familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law. (Emphasis supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious
of which were totally unrelated to Mr. Marcos and which the military was able to readily
quell, the respondents have not pointed to any grave exigency which permits the use of
untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond
our jurisdiction to consider. They contend that the decision to ban former President Marcos,
and his family on grounds of national security and public safety is vested by the
Constitution in the President alone. The determination should not be questioned before this
Court. The President's finding of danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with
such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define
the phrase political question, nor to determine what matters fall within its
scope. It is frequently used to designate all questions that he outside the
scope of the judicial power. More properly, however, it means those
questions which, under the constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as
follows:
In short, the term 'Political question' connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other words,
in the language of Corpus Juris Secundum (supra), it refers to 'those
questions which, under the Constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of
the Government. It is concerned with issues dependent upon the wisdom,
not legality, of a particular measure.
The most often quoted definition of political question was made by Justice William J.
Brennan Jr., who penned the decision of the United States Supreme Court in Baker v.
Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political
question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political
question, which identifies it as essentially a function of the separation of
powers. Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which claim is
not found in a specific provision is dangerous. Neither should we validate a roving

commission allowing public officials to strike where they please and to override everything
which to them represents evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or
vests the determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law
has been enacted specifying the circumstances when the right may be impaired in the
interest of national security or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be
found in the commander-in-chief clause which allows the President to call out the armed
forces in case of lawless violence, invasion or rebellion and to suspend the privilege of the
writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the
public safety requires it.
There is, however, no showing, not even a claim that the followers of former President
Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it
claimed that there is a need to suspend the privilege of the writ of habeas corpus or
proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there
may be disturbances but not of a magnitude as would compel this Court to resort to a
doctrine of non- justiceability and to ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos
"loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr.
Marcos and his cronies and that the "loyalists" engaging in rallies and demonstrations have
to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they
could not possibly destabilize the government, much less mount a serious attempt to
overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It
is in the best of Filipino customs and traditions to allow a dying person to return to his
home and breath his last in his native surroundings. Out of the 103 Congressmen who
passed the House resolution urging permission for his return, there are those who dislike
Mr. Marcos intensely or who suffered under his regime. There are also many Filipinos who
believe that in the spirit of national unity and reconciliation Mr. Marcos and his family
should be permitted to return to the Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light
of the constitutional guarantee of liberty of abode and the citizen's right to travel as
against the respondents' contention that national security and public safety would be
endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to
the President, there is likewise no dearth of decisional data, no unmanageable standards
which stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing
the same within the limits prescribed by law may be impaired only upon a lawful order of a
court. Not by an executive officer. Not even by the President. Section 6 further provides
that the right to travel, and this obviously includes the right to travelout of or back into the
Philippines, cannot be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country
to another or from the Philippines to a foreign country or from a foreign country to the
Philippines. The laws cited by the Solicitor General immigration, health, quarantine,
passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the
return of Mr. Marcos and family is concerned. There is absolutely no showing how any of
these statutes and regulations could serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation and defense of which all of
us in Government, the President and Congress included, are sworn to participate.
Significantly, the President herself has stated that the Court has the last word when it
comes to constitutional liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation
of the political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile,
121 SCRA 538 [1983]).

This new provision was enacted to preclude this Court from using the political question
doctrine as a means to avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress, inordinately unpopular, or which
may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and strike down an
exercise of authoritarian power. Parenthetically, at least two of the respondents and their
counsel were among the most vigorous critics of Mr. Marcos (the main petitioner) and his
use of the political question doctrine. The Constitution was accordingly amended. We are
now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have
been non-justiceable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one of them.
The Constitution requires the Court "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?

Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a doctrine of
convenience, expediency, utility or subservience. Every major challenge to the acts of
petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial
law, the ratification of a new constitution, the arrest and detention of "enemies of the
State" without charges being filed against them, the dissolution of Congress and the
exercise by the President of legislative powers, the trial of civilians for civil offenses by
military tribunals, the seizure of some of the country's biggest corporations, the taking over
or closure of newspaper offices, radio and television stations and other forms of media, the
proposals to amend the Constitution, etc. was invariably met by an invocation that the
petition involved a political question. It is indeed poetic justice that the political question
doctrine so often invoked by then President Marcos to justify his acts is now being used
against him and his family. Unfortunately, the Court should not and is not allowed to
indulge in such a persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme Court
and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.

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

considerations of national security do not readily lend themselves to the presentation of
proof before a court of justice. The vital information essential to an objective determination
is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with
a similar situation. It posed a rhetorical question. If after investigating conditions in the
Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor General's offer that
the military give us a closed door factual briefing with a lawyer for the petitioners and a
lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos
in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can
ascertain whether or not the president acted arbitrarily in suspending the
writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to
ascertain or evaluate the conditions prevailing in the Archipelago? (At p.
887). The answer is obvious. It must rely on the Executive Branch which
has the appropriate civil and military machinery for the facts. This was

the method which had to be used in Lansang. This Court relied heavily on
classified information supplied by the military. Accordingly, an
incongruous situation obtained. For this Court, relied on the very branch
of the government whose act was in question to obtain the facts. And as
should be expected the Executive Branch supplied information to support
its position and this Court was in no situation to disprove them. It was a
case of the defendant judging the suit. After all is said and done, the
attempt by its Court to determine whether or not the President acted
arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the
Executive Branch. For it is possible that the suspension of the writ lacks
popular support because of one reason or another. But when this Court
declares that the suspension is not arbitrary (because it cannot do
otherwise upon the facts given to it by the Executive Branch) it in effect
participates in the decision-making process. It assumes a task which it is
not equipped to handle; it lends its prestige and credibility to an
unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would
be the only basis for determining the clear and present danger to national security and
public safety. The majority of the Court has taken judicial notice of the Communist
rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is it
fair to blame the present day Marcos for these incidents? All these problems are totally
unrelated to the Marcos of today and, in fact, are led by people who have always opposed
him. If we use the problems of Government as excuses for denying a person's right to come
home, we will never run out of justifying reasons. These problems or others like them will
always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in
order to ascertain whether or not the respondents acted with grave abuse of discretion. Nor
are we forced to fall back upon judicial notice of the implications of a Marcos return to his
home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and
present danger to national security and public safety will arise if Mr. Marcos and his family
are allowed to return to the Philippines. It was only after the present petition was filed that
the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to (1) national welfare and interest and (2) the continuing need to
preserve the gains achieved in terms of recovery and stability. (See page 7, respondents'
Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and
public safety. The President has been quoted as stating that the vast majority of Filipinos
support her position. (The Journal, front page, January 24,1989) We cannot validate their
stance simply because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President's original position
"that it is not in the interest of the nation that Marcos be allowed to return at this time" has
not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the
President is reported to have stated that "considerations of the highest national good
dictate that we preserve the substantial economic and political gains of the past three

years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing
health. (Daily Globe, front page, February 15, 1989). "Interest of the nation national good,"
and "preserving economic and political gains," cannot be equated with national security or
public order. They are too generic and sweeping to serve as grounds for the denial of a
constitutional right. The Bill of Rights commands that the right to travel may not be
impaired except on the stated grounds of national security, public safety, or public
health and with the added requirement that such impairment must be "as provided by law."
The constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding
as it does on injustice, ignorance, poverty, and other aspects at under-development, the
Communist rebellion is the clearest and most present danger to national security and
constitutional freedoms. Nobody has suggested that one way to quell it would be to catch
and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples'
power." Yet, there is no move to arrest and exile the leaders of student groups, teachers'
organizations, pea ant and labor federations, transport workers, and government unions
whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the
hard core loyalists, and other dissatisfied elements would suddenly unite to overthrow the
Republic should a dying Marcos come home is too speculative and unsubstantial a ground
for denying a constitutional right. It is not shown how extremists from the right and the left
who loathe each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect,"
which alone sustains the claim of danger to national security is fraught with perilous
implications. Any difficult problem or any troublesome person can be substituted for the
Marcos threat as the catalysing factor. The alleged confluence of NPAs, secessionists,
radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or
any serious problem, the Government can state that the situation threatens a confluence of
rebel forces and proceed to ride roughshod over civil liberties in the name of national
security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public
assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel
of Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr.
Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's decision
to use the political question doctrine in a situation where it does not apply raises all kinds
of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not
succeed and that the military is on top of the situation. Where then is the clear danger to
national security? The Court has taken judicial notice of something which even the military
denies. There would be severe strains on military capabilities according to General de Villa.
There would be set-backs in the expected eradication of the Communist threat. There
would be other serious problems but all can be successfully contained by the military. I
must stress that no reference was made to a clear and present danger to national security
as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the

President to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law
Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to issue
decrees whenever the Batasang Pambansa failed or was unable to act adequately on any
matter for any reason that in his judgment required immediate action. When the Bill of
Rights provides that a right may not be impaired except in the interest of national security,
public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress
does not give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not
obstruct us from ruling against an unconstitutional assertion of power by Philippine
officials. Let the United States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of
traveling while hooked up to machines which have taken over the functions of his heart,
lungs, and kidneys may hasten his death. The physical condition of Mr. Marcos does not
justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is.
But he invokes a constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so
would run counter to a constitutional guarantee. Besides, the petitioners are not asking for
passports and nothing else. Any travel documents or any formal lifting of the Marcos ban as
would allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to
travel. I do not think we should differentiate the right to return home from the right to go
abroad or to move around in the Philippines. If at all, the right to come home must be more
preferred than any other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of
other "undesirables" and "threats to national security" during that unfortunate period
which led the framers of our present Constitution not only to re-enact but to strengthen the
declaration of this right. Media often asks, "what else is new?" I submit that we now have a
freedom loving and humane regime. I regret that the Court's decision in this case sets back
the gains that our country has achieved in terms of human rights, especially human rights
for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of
former dictators who were barred by their successors from returning to their respective
countries. There is no showing that the countries involved have constitutions which
guarantee the liberty of abode and the freedom to travel and that despite such
constitutional protections, the courts have validated the "ban a return" policy. Neither is it
shown that the successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no matter
how odious or disgusting is, however, insufficient ground to ignore a constitutional
guarantee.

During the protracted deliberations on this case, the question was asked is the Government
helpless to defend itself against a threat to national security? Does the President have to
suspend the privilege of the writ of habeas corpus or proclaim martial law? Can she not
take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one
of those powers because the Bill of Rights says so. There is no law prescribing exile in a
foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and
live and die in his own country. I say this with a heavy heart but say it nonetheless.
That conviction is not diminished one whit simply because many believe Marcos to be
beneath contempt and undeserving of the very liberties he flounted when he was the
absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor
can we resolve it. The question we must answer is whether or not, assuming that Marcos is
permitted to leave Hawaii (which may depend on the action we take today), the
respondents have acted with grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to
offer, but could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if
the government was prepared to prove the justification for opposing the herein petition, i.e.
that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the
classified nature of the information expected, scheduled a closed-door hearing on July
25,1988. The Solicitor General and three representatives from the military appeared for the
respondents, together with former Senator Arturo M. Tolentino, representing the
petitioners.
In about two hours of briefing, the government failed dismally to show that the return of
Marcos dead or alive would pose a threat to the national security as it had alleged. The
fears expressed by its representatives were based on mere conjectures of political and
economic destabilization without any single piece of concrete evidence to back up their
apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual
bases for the President's decision" to bar Marcos's return. That is not my recollection of the
impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the
specific powers granted by the Constitution, the Court is taking a great leap backward and

reinstating the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not
square with the announced policy of the Constitutional Commission, which was precisely
to limit rather than expand presidential powers, as a reaction to the excesses of the past
dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579)
that if it was true that the President had been granted the totality of executive power, "it is
difficult to see why our forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the
generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering
that Marcos is perhaps the most detested man in the entire history of our country. But we
are not concerned here with popularity and personalities. As a judge, I am not swayed by
what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I
must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars that
have not healed. And not even of fear, for fear is a phantom. That phantom did not rise
when the people stood fast at EDSA against the threat of total massacre in defense at last
of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a
professor of Constitutional Law. These principles have not changed simply because I am
now on the Court or a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against
the prohibitions of the government then, Marcos is entitled to the same right to travel and
the liberty of abode that his adversary invoked. These rights are guaranteed by the
Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to
be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he have
the right to return to his own country and should national safety and security deny him this
right?
There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has

the right to return to his own country exceptonly if prevented by the demands of national
safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and
all they can rely on is sheer speculation. True, there is some danger but there is no showing
as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this
country by popular will, can arouse an entire country to rise in morbid sympathy for the
cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the
former President should be allowed to return to our country under the conditions that he
and the members of his family be under house arrest in his hometown in Ilocos Norte, and
should President Marcos or any member of his family die, the body should not be taken out
of the municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights,
for national discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict
between the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the
right of the Philippine Government to bar such return in the interest of national security
and public safety. In this context, the issue is clearly justiciable involving, as it does,
colliding assertions of individual right and governmental power. Issues of this nature more
than explain why the 1986 Constitutional Commission, led by the illustrious former Chief
Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new provision on
the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government. Article VIII, Section
1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every
Filipino to travel which, in the language of the Constitution, shall not be impaired "except in
the interest of national security, public safety, or public health, as may be provided by law"
(Art. III, Sec. 6). That the right to travel comprises the right to travel within the country, to
travel out of the country and to return to the country (Philippines), is hardly disputable.
Short of all such components, the right to travel is meaningless. The real question arises in
the interpretation of the qualifications attached by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the
interest of national security, public safety or public health can justify and even require
restrictions on the right to travel, and that the clause "as may be provided by law"
contained in Article III, Section 6 of the 1987 Constitution merely declares a constitutional
leave or permission for Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not, therefore, accept the
petitioners' submission that, in the absence of enabling legislation, the Philippine
Government is powerless to restrict travel even when such restriction is demanded by
national security, public safety or public health, The power of the State, in particular cases,
to restrict travel of its citizens finds abundant support in the police power of the state wich
may be exercised to preserve and maintain government as well as promote the general
welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given
time, to restrict travel, even if founded on police power, cannot be absolute and unlimited
under all circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient
evidence to offset or override the exercise of this right invoked by Mr. Marcos? Stated
differently, have the respondents shown to the Court sufficient factual bases and data
which would justify their reliance on national security and public safety in negating the
right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land last
28 July 1989. 1 have searched, but in vain, for convincing evidence that would defeat and
overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those
conveyed through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would
be "under control," as admitted to the Court by said military authorities, given the
resources and facilities at the command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos' right to return, and his actual return, to this country. The
Court, in short, should not accept respondents' general apprehensions, concerns and
perceptions at face value, in the light of a countervailing and even irresistible, specific,
clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used
as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the
land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip
service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides that
everyone has the right to leave any country, including his own, and to return to his
country. This guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil
and Political Rights which states that "no one shall be arbitrarily deprived of the right to

enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically
chosen by the drafters of the Covenant 3 hoping to protect an individual against
unexpected, irresponsible or excessive encroachment on his rights by the state based on
national traditions or a particular sense of justice which falls short of international law or
standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is the duty
of this Court to unquestioningly yield thereto, thus casting the controversy to the realm of a
political question. I do not agree. I believe that it is one case where the human and
constitutional light invoked by one party is so specific, substantial and clear that it cannot
be overshadowed, much less, nullified by simplistic generalities; worse, the Court neglects
its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the
Philippines in 1983 and, at the same time,credibly deny the right of Mr. Marcos, also a
Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to
that question. Instead, it has become clearer by the day that the drama today is the same
drama in 1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be
buried in this country;
2. respondents have not shown any "hard evidence" or convincing proof
why his right as a Filipino to return should be denied him. All we have are
general conclusions of "national security" and "public safety" in
avoidance of a specific demandable and enforceable constitutional and
basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any
issue today, requires of all members of the Court, in what appears to be
an extended political contest, the "cold neutrality of an impartial judge."
It is only thus that we fortify the independence of this Court, with fidelity,
not to any person, party or group but to the Constitution and only to the
Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.

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

Hence, lest the officers of the Government exercising the powers

delegated by the people forget and the servants of the people become
rulers, the Constitution reminds everyone that "sovereignty resides in the
people and all government authority emanates from them." [Art. II, Sec.
1.]6
And finally:

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

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

As the majority would indeed have it, the issue is one of power: Does the Executive have
the power to deny a citizen his right to travel (back to the country or to another)? It is a
question that, in essence, involves the application, and no more, of the provisions of the
1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law. 4
The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated in the Constitution.
In other words, executive power is more than the sum of specific powers
so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at
a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from being
an allocation of power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common good.

I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter, but
has them by constitutional implication* the latter must yield to the paramountcy of the Bill
of Rights. According to Fernando: "A regime of constitutionalism is thus unthinkable without
an assurance of the primacy of a big of rights. Precisely a constitution exists to assure that
in the discharge of the governmental functions, the dignity that is the birthright of every
human being is duly safeguarded. To be true to its primordial aim a constitution must lay
down the boundaries beyond which he's forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override
the direct mandate of the fundamental law. It will not suffice, so I submit, to say that the
President's plenitude of powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly," so I borrow J.B.L.
Reyes, in his own right, a titan in the field of public law, "this argument ... rests ... not upon
the text of the (Constitution] ... but upon a mere inference therefrom." 9 For if it were,
indeed, the intent of the Charter to create an exception, that is, by Presidential action, to
the right of travel or liberty of abode and of changing the same other than what it explicitly
says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter
could have specifically declared so. As it is, the lone deterrents to the right in question are:
(1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a third
exception, that is, by Presidential initiative, it could have so averred. It would also have
made the Constitution, as far as limits to the said right are concerned, come full circle:
Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the
country; neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of
national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when
necessary in the interest of national security, public safety, or public health. 13 Arguably,
the provision enabled the Chief Executive (Marcos) to moderate movement of citizens,
which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's implied
power. And, as it so appears, the right may be impaired only "within the limits provided by
law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security 16 and foreign affairs; 17the Bill of Rights precisely, a form of check against
excesses of officialdom is, in this case, a formidable barrier against Presidential action.
(Even on matters of State security, this Constitution prescribes limits to Executive's powers
as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to
the national security , public safety, or public health?" What appears in the records are
vehement insistences that Marcos does pose a threat to the national good and yet, at the
same time, we have persistent claims, made by the military top brass during the lengthy
closed-door hearing on July 25, 1989, that "this Government will not fall" should the former
first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive. The Court itself must be content that the threat is not only clear, but more so,
present. 18
That the President "has the obligation under the Constitution to protect the people ... " 19 is
an obligation open to no doubt. But the question, and so I ask again and again, is: From
whom? If we say "from Marcos," we unravel chinks in our political armor. It also flies in the
face of claims, so confidently asserted, that "this Government will not fall" even if we
allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than
surmises of possibilities, has been shown to justify the 'balancing act" referred to. Worse,
these conjectures contradict contentions that as far as Philippine society is concerned,
Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial
law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it
is inconsistent with the express provisions of the commander-in-chief clause of the 1987
Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for
Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was
that he openly and unabatedly criticized the dictator, his associates, and his military
machinery. He would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was held incommunicado a
greater part of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic
asthma. The deplorable conditions of his imprisonment exacerbated his delicate health
beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki.
On August 14, 1979, he was, along with former President Diosdado Macapagal, and
Congressmen Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed
under house arrest, for "inciting to sedition" and "rumor mongering " 24in the midst of the
distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book
extremely critical of martial rule, published by him and former Congressman Concordia,
authored by President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having
violated the human rights of dissenters, and for other crimes, in the office of the Provincial
Fiscal of Rizal. It had to take the events at "EDSA" to set them free from house arrest and
these political offenses. I am for Marcos' return not because I have a score to settle with
him. Ditto's death or my arrest are scores that can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave
him 'unpunished for his crimes to country and countrymen. If punishment is due, let this
leadership inflict it. But let him stand trial and accord him due process.

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

groups during the EDSA Revolution's aftermath to realize this. The most publicized of these
offensives is the Manila Hotel incident which occurred barely five (5) months after the
People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist
soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at
the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this
event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.

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

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

Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced
their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but
having failed to convince their incarcerated members to unite in their cause, had to give up
nine (9) hours later.
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient in a
steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to
the exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived
solely from a particular constitutional clause or article or from an express statutory grant.
Their limits are likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law. History and time-honored principles
of constitutional law have conceded to the Executive Branch certain powers in times of
crisis or grave and imperative national emergency. Many terms are applied to these
powers: "residual," "inherent," 44 moral," "implied," "aggregate," 'emergency." whatever
they may be called, the fact is that these powers exist, as they must if the governance
function of the Executive Branch is to be carried out effectively and efficiently. It is in this
context that the power of the President to allow or disallow the Marcoses to return to the
Philippines should be viewed. By reason of its impact on national peace and order in these
admittedly critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a
clear and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the
military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most
serious attempt to wrest control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered
firearms and ammunition from the Camp Crame Armory during a raid conducted in June
1988. Most of the group members were, however, captured in Antipolo, Rizal. The same
group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the
return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at
different Metro Manila areas for the projected link-up of Marcos military loyalist troops with
the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were
arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their
occurrence militates heavily against the wisdom of allowing the Marcoses' return. Not only
will the Marcoses' presence embolden their followers toward similar actions, but any such
action would be seized upon as an opportunity by other enemies of the State, such as the
Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme
rightists of the RAM, to wage an offensive against the government. Certainly, the state
through its executive branch has the power, nay, the responsibility and obligation, to
prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a

valid justification for disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power"
revolution. Millions of our people braved military tanks and firepower, kept vigil, prayed,
and in countless manner and ways contributed time, effort and money to put an end to an
evidently untenable claim to power of a dictator. The removal of the Marcoses from the
Philippines was a moral victory for the Filipino people; and the installation of the present
administration, a realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made
to sympathy, compassion and even Filipino tradition. The political and economic gains we
have achieved during the past three years are however too valuable and precious to
gamble away on purely compassionate considerations. Neither could public peace, order
and safety be sacrificed for an individual's wish to die in his own country. Verily in the
balancing of interests, the scales tilt in favor of presidential prerogative, which we do not
find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever invented by
the wit of man than that any of its provisions can be suspended during any of the great
exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte
Milligan as self-evident truth. But faced with a hard and delicate case, we now hesitate to
qive substance to their meaning. The Court has permitted a basic freedom enshrined in the
Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the rest
who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting him
into a class by himself. The Constitution is a law for all classes of men at all times. To have
a person as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of
rights and not of power. Mr. Marcos is insensate and would not live if separated from the
machines which have taken over the functions of his kidneys and other organs. To treat him
at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his right to come home and die among
familiar surroundings?
Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law. (Emphasis supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious
of which were totally unrelated to Mr. Marcos and which the military was able to readily
quell, the respondents have not pointed to any grave exigency which permits the use of
untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond
our jurisdiction to consider. They contend that the decision to ban former President Marcos,
and his family on grounds of national security and public safety is vested by the
Constitution in the President alone. The determination should not be questioned before this
Court. The President's finding of danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with
such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define
the phrase political question, nor to determine what matters fall within its
scope. It is frequently used to designate all questions that he outside the
scope of the judicial power. More properly, however, it means those
questions which, under the constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as
follows:
In short, the term 'Political question' connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other words,
in the language of Corpus Juris Secundum (supra), it refers to 'those
questions which, under the Constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary

authority has been delegated to the Legislature or executive branch of

the Government. It is concerned with issues dependent upon the wisdom,
not legality, of a particular measure.
The most often quoted definition of political question was made by Justice Wilham J.
Brennan Jr., who penned the decision of the United States Supreme Court in Baker v.
Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political
question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to
the settings in which the questions arise may describe a political
question, which Identifies it as essentially a function of the separation of
powers. Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
For a political question to exist, there must be in the Constitution a power vested
exclusively in the President or Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power against a civil right which claim is
not found in a specific provision is dangerous. Neither should we validate a roving
commission allowing public officials to strike where they please and to override everything
which to them represents evil. The entire Govern ment is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or
vests the determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law
has been enacted specifying the circumstances when the right may be impaired in the
interest of national security or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be
found in the commander-in-chief clause which allows the President to call out the armed
forces in case of lawless violence, invasion or rebellion and to suspend the privilege of the
writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the
public safety requires it.
There is, however, no showing, not even a claim that the followers of former President
Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it
claimed that there is a need to suspend the privilege of the writ of habeas corpus or
proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there
may be disturbances but not of a magnitude as would compel this Court to resort to a

doctrine of non- justiceability and to ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos
"loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr.
Marcos and his cronies and that the "loyalists" engaging in rallies and demonstrations have
to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they
could not possibly destabilize the government, much less mount a serious attempt to
overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It
is in the best of Filipino customs and traditions to allow a dying person to return to his
home and breath his last in his native surroundings. Out of the 103 Congressmen who
passed the House resolution urging permission for his return, there are those who dislike
Mr. Marcos intensely or who suffered under his regime. There are also many Filipinos who
believe that in the spirit of national unity and reconciliation Mr. Marcos and his family
should be permitted to return to the Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light
of the constitutional guarantee of liberty of abode and the citizen's right to travel as
against the respondents' contention that national security and public safety would be
endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to
the President, there is likewise no dearth of decisional data, no unmanageable standards
which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing
the same within the limits prescribed by law may be impaired only upon a lawful order of a
court. Not by an executive officer. Not even by the President. Section 6 further provides
that the right to travel, and this obviously includes the right to travelout of or back into the
Philippines, cannot be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country
to another or from the Philippines to a foreign country or from a foreign country to the
Philippines. The laws cited by the Solicitor General immigration, health, quarantine,
passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the
return of Mr. Marcos and family is concerned. There is absolutely no showing how any of
these statutes and regulations could serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation and defense of which all of
us in Government, the President and Congress included, are sworn to participate.
Significantly, the President herself has stated that the Court has the last word when it
comes to constitutional liberties and that she would abide by our decision.

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

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

Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a doctrine of
convenience, expediency, utility or subservience. Every major challenge to the acts of
petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial
law, the ratification of a new constitution, the arrest and detention of "enemies of the
State" without charges being filed against them, the dissolution of Congress and the
exercise by the President of legislative powers, the trial of civilians for civil offenses by
military tribunals, the seizure of some of the country's biggest corporations, the taking over
or closure of newspaper offices, radio and television stations and other forms of media, the
proposals to amend the Constitution, etc. was invariably met by an invocation that the
petition involved a political question. It is indeed poetic justice that the political question
doctrine so often invoked by then President Marcos to justify his acts is now being used
against him and his family. Unfortunately, the Court should not and is not allowed to
indulge in such a persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme Court
and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political question
doctrine as a means to avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress, inordinately unpopular, or which
may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and strike down an
exercise of authoritarian power. Parenthetically, at least two of the respondents and their
counsel were among the most vigorous critics of Mr. Marcos (the main petitioner) and his
use of the political question doctrine. The Constitution was accordingly amended. We are
now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have
been non-justiceable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one of them.

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

considerations of national security do not readily lend themselves to the presentation of
proof before a court of justice. The vital information essential to an objective determination
is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with
a similar situation. It posed a rhetorical question. If after investigating conditions in the
Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor General's offer that
the military give us a closed door factual briefing with a lawyer for the petitioners and a
lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos
in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can
ascertain whether or not the president acted arbitrarily in suspending the
writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to
ascertain or evaluate the conditions prevailing in the Archipelago? (At p.
887). The answer is obvious. It must rely on the Executive Branch which
has the appropriate civil and military machinery for the facts. This was
the method which had to be used in Lansang. This Court relied heavily on
classified information supplied by the military. Accordingly, an
incongruous situation obtained. For this Court, relied on the very branch
of the government whose act was in question to obtain the facts. And as
should be expected the Executive Branch supplied information to support
its position and this Court was in no situation to disprove them. It was a
case of the defendant judging the suit. After all is said and done, the
attempt by its Court to determine whether or not the President acted
arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the
Executive Branch. For it is possible that the suspension of the writ lacks
popular support because of one reason or another. But when this Court
declares that the suspension is not arbitrary (because it cannot do
otherwise upon the facts given to it by the Executive Branch) it in effect
participates in the decision-making process. It assumes a task which it is
not equipped to handle; it lends its prestige and credibility to an
unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would
be the only basis for determining the clear and present danger to national security and
public safety. The majority of the Court has taken judicial notice of the Communist
rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is it
fair to blame the present day Marcos for these incidents? All these problems are totally
unrelated to the Marcos of today and, in fact, are led by people who have always opposed
him. If we use the problems of Government as excuses for denying a person's right to come
home, we will never run out of justifying reasons. These problems or others like them will
always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in
order to ascertain whether or not the respondents acted with grave abuse of discretion. Nor
are we forced to fall back upon judicial notice of the implications of a Marcos return to his
home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and
present danger to national security and public safety will arise if Mr. Marcos and his family
are allowed to return to the Philippines. It was only after the present petition was filed that
the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to-41) national welfare and interest and (2) the continuing need to preserve
the gains achieved in terms of recovery and stability. (See page 7, respondents' Comment
at page 73 of Rollo). Neither ground satisfies the criteria of national security and public
safety. The President has been quoted as stating that the vast majority of Filipinos support
her position. (The Journal, front page, January 24,1989) We cannot validate their stance
simply because it is a popular one. Supreme Court decisions do not have to be popular as
long as they follow the Constitution and the law. The President's original position "that it is
not in the interest of the nation that Marcos be allowed to return at this time" has not
changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the
President is reported to have stated that "considerations of the highest national good
dictate that we preserve the substantial economic and political gains of the past three
years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing
health. (Daily Globe, front page, February 15, 1989). "Interest of the nation national good,"
and "preserving economic and political gains," cannot be equated with national security or
public order. They are too generic and sweeping to serve as grounds for the denial of a
constitutional right. The Bill of Rights commands that the right to travel may not be
impaired except on the stated grounds of national security, public safety, or public
health and with the added requirement that such impairment must be "as provided by law."
The constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding
as it does on injustice, ignorance, poverty, and other aspects at under-development, the
Communist rebellion is the clearest and most present danger to national security and
constitutional freedoms. Nobody has suggested that one way to quell it would be to catch
and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples'
power." Yet, there is no move to arrest and exile the leaders of student groups, teachers'
organizations, pea ant and labor federations, transport workers, and government unions
whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the
hard core loyalists, and other dissatisfied elements would suddenly unite to overthrow the
Republic should a dying Marcos come home is too speculative and unsubstantial a ground
for denying a constitutional right. It is not shown how extremists from the right and the left
who loathe each other could find a rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect,"
which alone sustains the claim of danger to national security is fraught with perilous
implications. Any difficult problem or any troublesome person can be substituted for the
Marcos threat as the catalysing factor. The alleged confluence of NPAS, secessionists,
radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or
any serious problem, the Government can state that the situation threatens a confluence of
rebel forces and proceed to ride roughshod over civil liberties in the name of national
security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public
assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel
of Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr.
Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's decision
to use the political question doctrine in a situation where it does not apply raises all kinds
of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not
succeed and that the military is on top of the situation. Where then is the clear danger to
national security? The Court has taken judicial notice of something which even the military
denies. There would be severe strains on military capabilities according to General de Villa.
There would be set-backs in the expected eradication of the Communist threat. There
would be other serious problems but all can be successfully contained by the military. I
must stress that no reference was made to a clear and present danger to national security
as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the
President to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law
Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to issue
decrees whenever the Batasang Pambansa failed or was unable to act adequately on any
matter for any reason that in his judgment required immediate action. When the Bill of
Rights provides that a right may not be impaired except in the interest of national security,
public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress
does not give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not
obstruct us from ruling against an unconstitutional assertion of power by Philippine
officials. Let the United States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of
traveling while hooked up to machines which have taken over the functions of his heart,
lungs, and kidneys may hasten his death. The physical condition of Mr. Marcos does not
justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is.
But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so

would run counter to a constitutional guarantee. Besides, the petitioners are not asking for
passports and nothing else. Any travel documents or any formal lifting of the Marcos ban as
would allow international airlines to sell them tickets would suffice.

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

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

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.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of
former dictators who were barred by their successors from returning to their respective
countries. There is no showing that the countries involved have constitutions which
guarantee the liberty of abode and the freedom to travel and that despite such
constitutional protections, the courts have validated the "ban a return" policy. Neither is it
shown that the successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no matter
how odious or disgusting is, however, insufficient ground to ignore a constitutional
guarantee.
During the protracted deliberations on this case, the question was asked is the Government
helpless to defend itself against a threat to national security? Does the President have to
suspend the privilege of the writ of habeas corpus or proclaim martial law? Can she not
take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one
of those powers because the Bill of Rights says so. There is no law prescribing exile in a
foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and
live-and die-in his own country. I say this with a heavy heart but say it nonetheless. That
conviction is not diminished one whit simply because many believe Marcos to be beneath
contempt and undeserving of the very liberties he flounted when he was the absolute ruler
of this land.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if
the government was prepared to prove the justification for opposing the herein petition, i.
that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the
classified nature of the information expected, scheduled a closed-door hearing on July
25,1988. The Solicitor General and three representatives from the military appeared for the
respondents, together with former Senator Arturo M. Tolentino, representing the
petitioners.
In about two hours of briefing, the government failed dismally to show that the return of
Marcos dead or alive would pose a threat to the national security as it had alleged. The
fears expressed by its representatives were based on mere conjectures of political and
economic destabilization without any single piece of concrete evidence to back up their
apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual
bases for the President's decision" to bar Marcos's return. That is not my recollection of the
impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the
specific powers granted by the Constitution, the Court is taking a great leap backward and
reinstating the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not
square with the announced policy of the Constitutional Commission, which was precisely
to limit rather than expand presidential powers, as a reaction to the excesses of the past
dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579)
that if it was true that the President had been granted the totality of executive power, "it is
difficult to see why our forefathers bothered to add several specific items, including some
trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the
generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering
that Marcos is perhaps the most detested man in the entire history of our country. But we
are not concerned here with popularity and personalities. As a judge, I am not swayed by
what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I
must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars that
have not healed. And not even of fear, for fear is a phantom. That phantom did not rise

when the people stood fast at EDSA against the threat of total massacre in defense at last
of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a
professor of Constitutional Law. These principles have not changed simply because I am
now on the Court or a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against
the prohibitions of the government then, Marcos is entitled to the same right to travel and
the liberty of abode that his adversary invoked. These rights are guaranteed by the
Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to
be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he have
the right to return to his own country and should national safety and security deny him this
right?
There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has
the right to return to his own country exceptonly if prevented by the demands of national
safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and
all they can rely on is sheer speculation. True, there is some danger but there is no showing
as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this
country by popular will, can arouse an entire country to rise in morbid sympathy for the
cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the
former President should be allowed to return to our country under the conditions that he
and the members of his family be under house arrest in his hometown in Ilocos Norte, and
should President Marcos or any member of his family die, the body should not be taken out
of the municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights,
for national discipline, and for human compassion.
PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict
between the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the
right of the Philippine Government to bar such return in the interest of national security
and public safety. In this context, the issue is clearly justiciable involving, as it does,
colliding assertions of individual right and governmental power. Issues of this nature more
than explain why the 1986 Constitutional Commission, led by the illustrious former Chief
Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new provision on
the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government. Article VIII, Section
1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every
Filipino to travel which, in the language of the Constitution, shall not be impaired "except in
the interest of national security, public safety, or public health, as may be provided by law"
(Art. III, Sec. 6). That the right to travel comprises the right to travel within the country, to
travel out of the country and to return to the country (Philippines), is hardly disputable.
Short of all such components, the right to travel is meaningless. The real question arises in
the interpretation of the qualifications attached by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the
interest of national security, public safety or public health can justify and even require
restrictions on the right to travel, and that the clause "as may be provided by law"
contained in Article III, Section 6 of the 1987 Constitution merely declares a constitutional
leave or permission for Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not, therefore, accept the
petitioners' submission that, in the absence of enabling legislation, the Philippine
Government is powerless to restrict travel even when such restriction is demanded by
national security, public safety or public health, The power of the State, in particular cases,
to restrict travel of its citizens finds abundant support in the police power of the state wich
may be exercised to preserve and maintain government as well as promote the general
welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given
time, to restrict travel, even if founded on police power, cannot be absolute and unlimited
under all circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient
evidence to offset or override the exercise of this right invoked by Mr. Marcos? Stated
differently, have the respondents shown to the Court sufficient factual bases and data
which would justify their reliance on national security and public safety in negating the
right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and
assessed the "briefing" given the Court by the highest military authorities of the land last

28 July 1989. 1 have searched, but in vain, for convincing evidence that would defeat and
overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those
conveyed through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would
be "under control," as admitted to the Court by said military authorities, given the
resources and facilities at the command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos' right to return, and his actual return, to this country. The
Court, in short, should not accept respondents' general apprehensions, concerns and
perceptions at face value, in the light of a countervailing and even irresistible, specific,
clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used
as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the
land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip
service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides that
everyone has the right to leave any country, including his own, and to return to his
country. This guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil
and Political Rights which states that "no one shall be arbitrarily deprived of the right to
enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically
chosen by the drafters of the Covenant 3 hoping to protect an individual against
unexpected, irresponsible or excessive encroachment on his rights by the state based on
national traditions or a particular sense of justice which falls short of international law or
standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of "national security" and "public safety," it is the duty
of this Court to unquestioningly yield thereto, thus casting the controversy to the realm of a
political question. I do not agree. I believe that it is one case where the human and
constitutional light invoked by one party is so specific, substantial and clear that it cannot
be overshadowed, much less, nullified by simplistic generalities; worse, the Court neglects
its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the
Philippines in 1983 and, at the same time,credibly deny the right of Mr. Marcos, also a
Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to
that question. Instead, it has become clearer by the day that the drama today is the same
drama in 1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case-

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

buried in this country;
2. respondents have not shown any "hard evidence" or con- vincing proof
why his right as a Filipinoto return should be denied him. All we have are
general conclusions of "national security" and "public safety" in
avoidance of a specific demandable and enforceable constitutional and
basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any
issue today, requires of all members of the Court, in what appears to be
an extended political contest, the "cold neutrality of an impartial judge."
It is only thus that we fortify the independence of this Court, with fidelity,
not to any person, party or group but to the Constitution and only to the
Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses from
returning to the Philippines." 1 I therefore take exception to allusions 2 anent "the capacity
of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my
brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble" is
concerned), have overstepped the bounds of judicial restraint, or even worse, convicted
them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court:
"The right to return to one's country," pitted against "the right of travel and freedom of
abode", and their supposed distinctions under international law, as if such distinctions,
under international law in truth and in fact exist. There is only one right involved here,
whether under municipal or international law: the light of travel, whether within one's own
country, or to another, and the right to return thereto. The Constitution itself makes no
distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos distinguere
debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have
the power to deny a citizen his right to travel (back to the country or to another)? It is a
question that, in essence, involves the application, and no more, of the provisions of the
1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law. 4

The majority says, with ample help from American precedents, that the President is
possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated in the Constitution.
In other words, executive power is more than the sum of specific powers
so enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at
a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from being
an allocation of power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common good.
Hence, lest the officers of the Government exercising the powers
delegated by the people forget and the servants of the people become
rulers, the Constitution reminds everyone that "sovereignty resides in the
people and all government authority emanates from them." [Art. II, Sec.
1.]6
And finally:
To the President, the problem is one of balancing the general welfare and
the common good against the exercise of rights of certain individuals.
The power involved is the President's residual power to protect the
general welfare of the people. It is founded on the duty of the President,
as steward of the people. To paraphrase Theodore Roosevelt, it is not
only the power of the President but also his duty to do anything not
forbidden by the Constitution or the laws that the needs of the nation
demanded [See Corwin, supra, at 153]. It is a power borne by the
President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the
laws are faithfully executed [See Hyman, The American President, where
the author advances the view that an allowance of discretionary power is
unavoidable in any government and is best lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter, but
has them by constitutional implication* the latter must yield to the paramountcy of the Bill

of Rights. According to Fernando: "A regime of constitutionalism is thus unthinkable without

an assurance of the primacy of a big of rights. Precisely a constitution exists to assure that
in the discharge of the governmental functions, the dignity that is the birthright of every
human being is duly safeguarded. To be true to its primordial aim a constitution must lay
down the boundaries beyond which he's forbidden territory for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override
the direct mandate of the fundamental law. It will not suffice, so I submit, to say that the
President's plenitude of powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands. "Clearly," so I borrow J.B.L.
Reyes, in Ms own right, a titan in the field of public law, "this argument ... rests ... not upon
the text of the (Constitution] ... but upon a mere inference therefrom." 9 For if it were,
indeed, the intent of the Charter to create an exception, that is, by Presidential action, to
the right of travel or liberty of abode and of changing the same other than what it explicitly
says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter
could have specifically declared so. As it is, the lone deterrents to the right in question are:
(1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a third
exception, that is, by Presidential initiative, it could have so averred. It would also have
made the Constitution, as far as limits to the said right are concerned, come full circle:
Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the
country; neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except
upon lawful order of the court, or when necessary in the interest of
national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when
necessary in the interest of national security, public safety, or public health. 13 Arguably,
the provision enabled the Chief Executive (Marcos) to moderate movement of citizens,
which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14
The new Constitution, however, so it clearly appears, has divested the Executive's implied
power. And, as it so appears, the right may be impaired only "within the limits provided by
law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security 16 and foreign affairs; 17the Bill of Rights precisely, a form of check against
excesses of officialdom is, in this case, a formidable barrier against Presidential action.
(Even on matters of State security, this Constitution prescribes limits to Executive's powers
as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to
the national security , public safety, or public health?" What appears in the records are
vehement insistences that Marcos does pose a threat to the national good and yet, at the

same time, we have persistent claims, made by the military top brass during the lengthy
closed-door hearing on July 25, 1989, that "this Government will not fall" should the former
first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive. The Court itself must be content that the threat is not only clear, but more so,
present. 18
That the President "has the obligation under the Constitution to protect the people ... " 19 is
an obligation open to no doubt. But the question, and so I ask again and again, is: From
whom? If we say "from Marcos," we unravel chinks in our political armor. It also flies in the
face of claims, so confidently asserted, that "this Government will not fall" even if we
allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than
surmises of possibilities, has been shown to justify the 'balancing act" referred to. Worse,
these conjectures contradict contentions that as far as Philippine society is concerned,
Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the
President's power as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial
law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it
is inconsistent with the express provisions of the commander-in-chief clause of the 1987
Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for
Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was
that he openly and unabatedly criticized the dictator, his associates, and his military
machinery. He would pay dearly for it; he was arrested and detained, without judicial
warrant or decision, for seven months and seven days. He was held incommunicado a
greater part of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic
asthma. The deplorable conditions of his imprisonment exacerbated his delicate health

beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki.
On August 14, 1979, he was, along with former President Diosdado Macapagal, and
Congressmen Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed
under house arrest, for "inciting to sedition" and "rumor mongering " 24in the midst of the
distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book
extremely critical of martial rule, published by him and former Congressman Concordia,
authored by President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having
violated the human rights of dissenters, and for other crimes, in the office of the Provincial
Fiscal of Rizal. It had to take the events at "EDSA" to set them free from house arrest and
these political offenses. I am for Marcos' return not because I have a score to settle with
him. Ditto's death or my arrest are scores that can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave
him 'unpunished for Ms crimes to country and countrymen. If punishment is due, let this
leadership inflict it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of abode. 25 We would have betrayed our own Ideals if we
denied Marcos his rights. It is his constitutional right, a right that can not be abridged by
personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity"
"to stir trouble" Now that the shoe is on the other foot, let no more of human rights
violations be repeated against any one, friend or foe. In a democratic framwork, there is no
this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under
the present Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.
G.R. No. L-62100 May 30, 1986
RICARDO L. MANOTOC, JR., petitioner,
vs.
THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE,
JR., as Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE
OF THE PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO
M. REYES, as Commissioner of Immigration, and the Chief of the Aviation
Security Command (AVSECOM), respondents.

FERNAN, J.:

The issue posed for resolution in this petition for review may be stated thus: Does a person
facing a criminal indictment and provisionally released on bail have an unrestricted right to
travel?
Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular
Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having
transferred the management of the latter into the hands of professional men, he holds no
officer-position in said business, but acts as president of the former corporation.
Following the "run" on stock brokerages caused by stock broker Santamaria's flight from
this jurisdiction, petitioner, who was then in the United States, came home, and together
with his co-stockholders, filed a petition with the Securities and Exchange Commission for
the appointment of a management committee, not only for Manotoc Securities, Inc., but
likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities,
Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the Appointment of a
Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc,
Jr., Petitioners", was granted and a management committee was organized and appointed.
Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission
requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner
for departure and a memorandum to this effect was issued by the Commissioner on
February 4, 1980 to the Chief of the Immigration Regulation Division.
When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected
to be a fake, six of its clients filed six separate criminal complaints against petitioner and
one Raul Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities,
Inc. In due course, corresponding criminal charges for estafa were filed by the investigating
fiscal before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos.
45399 and 45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542
to 45545, raffled off to Judge Pronove. In all cases, petitioner has been admitted to bail in
the total amount of P105,000.00, with FGU Instance Corporation as surety.
On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion
for permission to leave the country," stating as ground therefor his desire to go to the
United States, "relative to his business transactions and opportunities." 1 The prosecution
opposed said motion and after due hearing, both trial judges denied the same. The order of
Judge Camilon dated March 9, 1982, reads:
Accused Ricardo Manotoc Jr. desires to leave for the United States on the
all embracing ground that his trip is ... relative to his business
transactions and opportunities.
The Court sees no urgency from this statement. No matter of any
magnitude is discerned to warrant judicial imprimatur on the proposed
trip.
In view thereof, permission to leave the country is denied Ricardo
Manotoc, Jr. now or in the future until these two (2) cases are
terminated . 2

On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:
6.-Finally, there is also merit in the prosecution's contention that if the
Court would allow the accused to leave the Philippines the surety
companies that filed the bail bonds in his behalf might claim that they
could no longer be held liable in their undertakings because it was the
Court which allowed the accused to go outside the territorial jurisdiction
of the Philippine Court, should the accused fail or decide not to return.
WHEREFORE, the motion of the accused is DENIED.

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting
the recall or withdrawal of the latter's memorandum dated February 4, 1980, but said
request was also denied in a letter dated May 27, 1982.
Petitioner thus filed a petition for certiorari and mandamus before the then Court of
Appeals 4 seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon and
Pronove, respectively, as well as the communication-request of the Securities and
Exchange Commission, denying his leave to travel abroad. He likewise prayed for the
issuance of the appropriate writ commanding the Immigration Commissioner and the Chief
of the Aviation Security Command (AVSECOM) to clear him for departure.
On October 5, 1982, the appellate court rendered a decision
lack of merit.

dismissing the petition for

Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review
on certiorari. Pending resolution of the petition to which we gave due course on April 14,
1983 6 petitioner filed on August 15, 1984 a motion for leave to go abroad pendente
lite. 7 In his motion, petitioner stated that his presence in Louisiana, U.S.A. is needed in
connection "with the obtention of foreign investment in Manotoc Securities, Inc." 8 He
attached the letter dated August 9, 1984 of the chief executive officer of the Exploration
Company of Louisiana, Inc., Mr. Marsden W. Miller 9 requesting his presence in the United
States to "meet the people and companies who would be involved in its investments."
Petitioner, likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933 to 4936 of
the Regional Trial Court of Makati (formerly Nos. 45542-45545) had been dismissed as to
him "on motion of the prosecution on the ground that after verification of the records of the
Securities and Exchange Commission ... (he) was not in any way connected with the
Manotoc Securities, Inc. as of the date of the commission of the offenses imputed to
him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati,
however, remained pending as Judge Camilon, when notified of the dismissal of the other
cases against petitioner, instead of dismissing the cases before him, ordered merely the
informations amended so as to delete the allegation that petitioner was president and to
substitute that he was "controlling/majority stockholder,'' 11 of Manotoc Securities, Inc. On
September 20, 1984, the Court in a resolution en banc denied petitioner's motion for leave
to go abroad pendente lite. 12
Petitioner contends that having been admitted to bail as a matter of right, neither the
courts which granted him bail nor the Securities and Exchange Commission which has no
jurisdiction over his liberty, could prevent him from exercising his constitutional right to
travel.

Petitioner's contention is untenable.

A court has the power to prohibit a person admitted to bail from leaving the Philippines.
This is a necessary consequence of the nature and function of a bail bond.
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for
the release of a person who is in the custody of the law, that he will appear before any
court in which his appearance may be required as stipulated in the bail bond or
recognizance.
Its object is to relieve the accused of imprisonment and the state of the
burden of keeping him, pending the trial, and at the same time, to put
the accused as much under the power of the court as if he were in
custody of the proper officer, and to secure the appearance of the
accused so as to answer the call of the court and do what the law may
require of him. 13
The condition imposed upon petitioner to make himself available at all times whenever the
court requires his presence operates as a valid restriction on his right to travel. As we have
held in People vs. Uy Tuising, 61 Phil. 404 (1935).
... the result of the obligation assumed by appellee (surety) to hold the
accused amenable at all times to the orders and processes of the lower
court, was to prohibit said accused from leaving the jurisdiction of the
Philippines, because, otherwise, said orders and processes will be
nugatory, and inasmuch as the jurisdiction of the courts from which they
issued does not extend beyond that of the Philippines they would have
no binding force outside of said jurisdiction.
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he
may be placed beyond the reach of the courts.
The effect of a recognizance or bail bond, when fully executed or filed of
record, and the prisoner released thereunder, is to transfer the custody of
the accused from the public officials who have him in their charge to
keepers of his own selection. Such custody has been regarded merely as
a continuation of the original imprisonment. The sureties become
invested with full authority over the person of the principal and have the
right to prevent the principal from leaving the state. 14
If the sureties have the right to prevent the principal from leaving the state, more so then
has the court from which the sureties merely derive such right, and whose jurisdiction over
the person of the principal remains unaffected despite the grant of bail to the latter. In fact,
this inherent right of the court is recognized by petitioner himself, notwithstanding his
allegation that he is at total liberty to leave the country, for he would not have filed the
motion for permission to leave the country in the first place, if it were otherwise.
To support his contention, petitioner places reliance upon the then Court of Appeals' ruling
in People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the
following passage:

... The law obliges the bondsmen to produce the person of the appellants
at the pleasure of the Court. ... The law does not limit such undertaking
of the bondsmen as demandable only when the appellants are in the
territorial confines of the Philippines and not demandable if the
appellants are out of the country. Liberty, the most important
consequence of bail, albeit provisional, is indivisible. If granted at all,
liberty operates as fully within as without the boundaries of the granting
state. This principle perhaps accounts for the absence of any law or
jurisprudence expressly declaring that liberty under bail does not
transcend the territorial boundaries of the country.
The faith reposed by petitioner on the above-quoted opinion of the appellate court is
misplaced. The rather broad and generalized statement suffers from a serious fallacy; for
while there is, indeed, neither law nor jurisprudence expressly declaring that liberty under
bail does not transcend the territorial boundaries of the country, it is not for the reason
suggested by the appellate court.
Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the
accused was able to show the urgent necessity for her travel abroad, the duration thereof
and the conforme of her sureties to the proposed travel thereby satisfying the court that
she would comply with the conditions of her bail bond. in contrast, petitioner in this case
has not satisfactorily shown any of the above. As aptly observed by the Solicitor General in
his comment:
A perusal of petitioner's 'Motion for Permission to Leave the Country' will
show that it is solely predicated on petitioner's wish to travel to the
United States where he will, allegedly attend to some business
transactions and search for business opportunities. From the tenor and
import of petitioner's motion, no urgent or compelling reason can be
discerned to justify the grant of judicial imprimatur thereto. Petitioner has
not sufficiently shown that there is absolute necessity for him to travel
abroad. Petitioner's motion bears no indication that the alleged business
transactions could not be undertaken by any other person in his behalf.
Neither is there any hint that petitioner's absence from the United States
would absolutely preclude him from taking advantage of business
opportunities therein, nor is there any showing that petitioner's nonpresence in the United States would cause him irreparable damage or
prejudice. 15
Petitioner has not specified the duration of the proposed travel or shown that his surety has
agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had
posted cash indemnities. The court cannot allow the accused to leave the country without
the assent of the surety because in accepting a bail bond or recognizance, the government
impliedly agrees "that it will not take any proceedings with the principal that will increase
the risks of the sureties or affect their remedies against him. Under this rule, the surety on
a bail bond or recognizance may be discharged by a stipulation inconsistent with the
conditions thereof, which is made without his assent. This result has been reached as to a
stipulation or agreement to postpone the trial until after the final disposition of other cases,
or to permit the principal to leave the state or country." 16 Thus, although the order of
March 26, 1982 issued by Judge Pronove has been rendered moot and academic by the

dismissal as to petitioner of the criminal cases pending before said judge, We see the
rationale behind said order.
As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of
his travel, the duration thereof, as well as the consent of his surety to the proposed travel,
We find no abuse of judicial discretion in their having denied petitioner's motion for
permission to leave the country, in much the same way, albeit with contrary results, that
We found no reversible error to have been committed by the appellate court in allowing
Shepherd to leave the country after it had satisfied itself that she would comply with the
conditions of her bail bond.
The constitutional right to travel being invoked by petitioner is not an absolute right.
Section 5, Article IV of the 1973 Constitution states:
The liberty of abode and of travel shall not be impaired except upon
lawful order of the court, or when necessary in the interest of national
security, public safety or public health.

The legislative power of state, the controlling power of the constitution and laws, the rights
if they have any, the political existence of a people, the personal liberty of a citizen, are all
involved in the subject now to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed
first, to introduce the facts and the issues, next to give a history of the so called "nonChristians," next to compare the status of the "non-Christians" with that of the American
Indians, and, lastly, to resolve the constitutional questions presented.
I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other Manguianes of the
Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of their
liberty by the provincial officials of that province. Rubi and his companions are said to be
held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos
is said to be held under the custody of the provincial sheriff in the prison at Calapan for
having run away form the reservation.
The return of the Solicitor-General alleges:

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

1. That on February 1, 1917, the provincial board of Mindoro adopted resolution

No. 25 which is as follows:

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

The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:

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

"Whereas several attempts and schemes have been made for the
advancement of the non-Christian people of Mindoro, which were all a
failure,
"Whereas it has been found out and proved that unless some other
measure is taken for the Mangyan work of this province, no successful
result will be obtained toward educating these people.

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

"Whereas it is deemed necessary to obliged them to live in one place in

order to make a permanent settlement,

Feria, J., took no part.

G.R. No. L-14078

March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,

vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:
In one of the cases which denote a landmark in American Constitutional History
(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of
American jurisprudence, began his opinion (relating to the status of an Indian) with words
which, with a slight change in phraseology, can be made to introduce the present opinion
This cause, in every point of view in which it can be placed, is of the deepest interest.

"Whereas the provincial governor of any province in which non-Christian

inhabitants are found is authorized, when such a course is deemed
necessary in the interest of law and order, to direct such inhabitants to
take up their habitation on sites on unoccupied public lands to be
selected by him and approved by the provincial board.
"Whereas the provincial governor is of the opinion that the sitio of Tigbao
on Lake Naujan is a place most convenient for the Mangyanes to live on,
Now, therefore be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares of
public land in the sitio of Tigbao on Naujan Lake be selected as a site for the
permanent settlement of Mangyanes in Mindoro subject to the approval of the
Honorable Secretary of the Interior, and
"Resolved further, That Mangyans may only solicit homesteads on this reservation
providing that said homestead applications are previously recommended by the
provincial governor."

2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was
approved by the Secretary of the Interior of February 21, 1917.
3. That on December 4, 1917, the provincial governor of Mindoro issued executive
order No. 2 which says:
"Whereas the provincial board, by Resolution No. 25, current series, has
selected a site in the sitio of Tigbao on Naujan Lake for the permanent
settlement of Mangyanes in Mindoro.
"Whereas said resolution has been duly approve by the Honorable, the
Secretary of the Interior, on February 21, 1917.
"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro,
pursuant to the provisions of section 2145 of the revised Administrative
Code, do hereby direct that all the Mangyans in the townships of Naujan
and Pola and the Mangyans east of the Baco River including those in the
districts of Dulangan and Rubi's place in Calapan, to take up their
habitation on the site of Tigbao, Naujan Lake, not later than December
31, 1917.
"Any Mangyan who shall refuse to comply with this order shall upon
conviction be imprisoned not exceed in sixty days, in accordance with
section 2759 of the revised Administrative Code."
4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and
the executive order of the governor of the same province copied in paragraph 3,
were necessary measures for the protection of the Mangyanes of Mindoro as well
as the protection of public forests in which they roam, and to introduce civilized
customs among them.

In connection with the above-quoted provisions, there should be noted section 2759 of the
same Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any nonChristian who shall refuse to comply with the directions lawfully given by a
provincial governor, pursuant to section two thousand one hundred and forty-five
of this Code, to take up habitation upon a site designated by said governor shall
upon conviction be imprisonment for a period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to Philippine law. The
genealogical tree of this section, if we may be permitted to use such terminology, would
read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of
various special provincial laws, notably of Act No. 547, specifically relating to the
Manguianes; section 69, Act No. 387.
Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as
will later be disclosed, is also found in varying forms in other laws of the Philippine Islands.
In order to put the phrase in its proper category, and in order to understand the policy of
the Government of the Philippine Islands with reference to the uncivilized elements of the
Islands, it is well first of all to set down a skeleton history of the attitude assumed by the
authorities towards these "non-Christians," with particular regard for the legislation on the
subject.
II. HISTORY.
A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.
The most important of the laws of the Indies having reference to the subject at hand are
compiled in Book VI, Title III, in the following language.
LAW I.

5. That Rubi and those living in his rancheria have not fixed their dwelling within
the reservation of Tigbao and are liable to be punished in accordance with section
2759 of Act No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being
detained by the sheriff of Mindoro but if he is so detained it must be by virtue of
the provisions of articles Nos. 2145 and 2759 of Act No. 2711.
It thus appears that the provincial governor of Mindoro and the provincial board thereof
directed the Manguianes in question to take up their habitation in Tigbao, a site on the
shore of Lake Naujan, selected by the provincial governor and approved by the provincial
board. The action was taken in accordance with section 2145 of the Administrative Code of
1917, and was duly approved by the Secretary of the Interior as required by said action.
Petitioners, however, challenge the validity of this section of the Administrative Code. This,
therefore, becomes the paramount question which the court is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial
governor. With the prior approval of the Department Head, the provincial
governor of any province in which non-Christian inhabitants are found is
authorized, when such a course is deemed necessary in the interest of law and
order, to direct such inhabitants to take up their habitation on sites on unoccupied
public lands to be selected by him an approved by the provincial board.

The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551.
Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13,
1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of
1573. In San Lorenzo, on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and the
evangelical law, and in order that they may forget the blunders of their ancient
rites and ceremonies to the end that they may live in harmony and in a civilized
manner, it has always been endeavored, with great care and special attention, to
use all the means most convenient to the attainment of these purposes. To carry
out this work with success, our Council of the Indies and other religious persons
met at various times; the prelates of new Spain assembled by order of Emperor
Charles V of glorious memory in the year one thousand five hundred and forty-six
all of which meetings were actuated with a desire to serve God an our Kingdom.
At these meetings it was resolved that indios be made to live in communities, and
not to live in places divided and separated from one another by sierras and
mountains, wherein they are deprived of all spiritual and temporal benefits and
wherein they cannot profit from the aid of our ministers and from that which gives
rise to those human necessities which men are obliged to give one another.
Having realized that convenience of this resolution, our kings, our predecessors,
by different orders, have entrusted and ordered the viceroys, presidents, and

governors to execute with great care and moderation the concentration of

the indios into reducciones; and to deal with their doctrine with such forbearance
and gentleness, without causing inconveniences, so that those who would not
presently settle and who would see the good treatment and the protection of
those already in settlements would, of their own accord, present themselves, and
it is ordained that they be not required to pay taxes more than what is ordered.
Because the above has been executed in the greater part of our Indies, we hereby
order and decree that the same be complied with in all the remaining parts of the
Indies, and the encomederos shall entreat compliance thereof in the manner and
form prescribed by the laws of this title.
xxx

xxx

xxx

LAW VIII.
Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.
THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.
The places wherein the pueblos and reducciones shall be formed should have the
facilities of waters. lands, and mountains, ingress and egress, husbandry and
passageway of one league long, wherein the indioscan have their live stock that
they may not be mixed with those of the Spaniards.
LAW IX.
Philip II at Toledo, on February 19, 1956.

With more good-will and promptness, the indios shall be concentrated

in reducciones. Provided they shall not be deprived of the lands and granaries
which they may have in the places left by them. We hereby order that no change
shall be made in this respect, and that they be allowed to retain the lands held by
them previously so that they may cultivate them and profit therefrom.
xxx

LAW XV.
Philip III at Madrid, on October 10, 1618.
THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE
"INDIOS."
We order that in each town and reduccion there be a mayor, who should be
an indio of the samereduccion; if there be more than eighty houses, there should
be two mayors and two aldermen, also indios; and, even if the town be a big one,
there should, nevertheless, be more than two mayors and four aldermen, If there
be less than eighty indios but not less than forty, there should be not more than
one mayor and one alderman, who should annually elect nine others, in the
presence of the priests , as is the practice in town inhabited by Spaniards
and indios.
LAW XXI.
Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May
8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600.
Philip IV, at Madrid, on October 1 and December 17, 1646. For this law and the
one following, see Law I, Tit. 4, Book 7.
THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES,
"MESTIZOS," AND MULATTOES.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY

HELD BY THEM.

xxx

be considered fraudulently obtained. The penalty of one thousand pesos shall be

imposed upon the judge or encomendero who should violate this law.

xxx

LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR
COURT.
No governor, or magistrate, or alcalde mayor, or any other court, has the right to
alter or to remove thepueblos or the reducciones once constituted and founded,
without our express order or that of the viceroy, president, or the royal district
court, provided, however, that the encomenderos, priests, or indios request such a
change or consent to it by offering or giving information to that en. And, because
these claims are often made for private interests and not for those of the indios,
we hereby order that this law be always complied with, otherwise the change will

We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live

to live in the reduccionesand towns and towns of the indios, because it has been
found that some Spaniards who deal, trade, live, and associate with the indios are
men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious
and useless men; and, to avoid the wrongs done them, the indios would leave
their towns and provinces; and the negroes, mestizos, and mulattoes, besides
maltreating them and utilizing their services, contaminate them with their bad
customs, idleness, and also some of their blunders and vices which may corrupt
and pervert the goal which we desire to reach with regard to their salvation,
increase, and tranquillity. We hereby order the imposition of grave penalties upon
the commission of the acts above-mentioned which should not be tolerated in the
towns, and that the viceroys, presidents, governors, and courts take great care in
executing the law within their powers and avail themselves of the cooperation of
the ministers who are truly honest. As regards the mestizos and Indian and
Chinese half-breeds (zambaigos), who are children of indias and born among
them, and who are to inherit their houses andhaciendas, they all not be affected
by this law, it appearing to be a harsh thing to separate them from their parents.
(Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to improve the
condition of the less advanced inhabitants of the Islands by concentrating them in
"reducciones," is found in the Decree of the Governor-General of the Philippine Islands of
January 14, 1881, reading as follows:
It is a legal principle as well as a national right that every inhabitant of a territory
recognized as an integral part of a nation should respect and obey the laws in

force therein; while, on other hand, it is the duty to conscience and to humanity
for all governments to civilize those backward races that might exist in the nation,
and which living in the obscurity of ignorance, lack of all the nations which enable
them to grasp the moral and material advantages that may be acquired in those
towns under the protection and vigilance afforded them by the same laws.
It is equally highly depressive to our national honor to tolerate any longer the
separation and isolation of the non-Christian races from the social life of the
civilized and Christian towns; to allow any longer the commission of depredations,
precisely in the Island of Luzon wherein is located the seat of the representative of
the Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves
with this most important question, and that much has been heretofore
accomplished with the help and self-denial of the missionary fathers who have
even sacrificed their lives to the end that those degenerate races might be
brought to the principles of Christianity, but the means and the preaching
employed to allure them have been insufficient to complete the work undertaken.
Neither have the punishments imposed been sufficient in certain cases and in
those which have not been guarded against, thus giving and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state of
things, taking into account the prestige which the country demands and the
inevitable duty which every government has in enforcing respect and obedience
to the national laws on the part of all who reside within the territory under its
control, I have proceeded in the premises by giving the most careful study of this
serious question which involves important interests for civilization, from the moral
and material as well as the political standpoints. After hearing the illustrious
opinions of all the local authorities, ecclesiastics, and missionaries of the
provinces of Northern Luzon, and also after finding the unanimous conformity of
the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and
the provincial prelates of the orders of the Dominicans, Agustinians, Recoletos,
Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held
for the object so indicated, I have arrived at an intimate conviction of the
inevitable necessity of proceeding in a practical manner for the submission of the
said pagan and isolated races, as well as of the manner and the only form of
accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these objects, I
hereby promulgate the following:
DECREE.
1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to
be governed by the common law, save those exceptions prescribed in this decree
which are bases upon the differences of instructions, of the customs, and of the
necessities of the different pagan races which occupy a part of its territory.
2. The diverse rules which should be promulgated for each of these races which
may be divided into three classes; one, which comprises those which live isolated
and roaming about without forming a town nor a home; another, made up of those
subdued pagans who have not as yet entered completely the social life; and the
third, of those mountain and rebellious pagans shall be published in their
respective dialects, and the officials, priests, and missionaries of the provinces
wherein they are found are hereby entrusted in the work of having these races
learn these rules. These rules shall have executive character, beginning with the

first day of next April, and, as to their compliance, they must be observed in the
manner prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed, from
now on, with all the means which their zeal may suggest to them, to the taking of
the census of the inhabitants of the towns or settlement already subdued, and
shall adopt the necessary regulations for the appointment of local authorities, if
there be none as yet; for the construction of courts and schools, and for the
opening or fixing up of means of communication, endeavoring, as regards the
administrative organization of the said towns or settlements, that this be finished
before the first day of next July, so that at the beginning of the fiscal year they
shall have the same rights and obligations which affect the remaining towns of the
archipelago, with the only exception that in the first two years they shall not be
obliged to render personal services other than those previously indicated.
4. So long as these subdued towns or settlements are located infertile lands
appropriate for cultivation, the inhabitants thereof shall not be obliged to move
their dwelling-houses; and only in case of absolute necessity shall a new residence
be fixed for them, choosing for this purpose the place most convenient for them
and which prejudices the least their interest; and, in either of these cases, an
effort must be made to establish their homes with the reach of the sound of the
bell.
5. For the protection and defense of these new towns, there shall be established
an armed force composed precisely of native Christian, the organization and
service of which shall be determined in a regulations based upon that of the
abolished Tercios de Policia (division of the Guardia Civil).
6. The authorities shall see to it that the inhabitants of the new towns understand
all the rights and duties affecting them and the liberty which they have as to
where and now they shall till their lands and sell the products thereof, with the
only exception of the tobacco which shall be bought by the Hacienda at the same
price and conditions allowed other producers, and with the prohibition against
these new towns as well as the others from engaging in commerce of any other
transaction with the rebellious indios, the violation of which shall be punished with
deportation.
7. In order to properly carry out this express prohibition, the limits of the territory
of the rebellious indiosshall be fixed; and whoever should go beyond the said
limits shall be detained and assigned governmentally wherever convenient.
8. For the purpose of assisting in the conversion of the pagans into the fraternity
of the Catholic Church, all by this fact along be exempt for eight years from
rendering personal labor.
9. The authorities shall offer in the name of the State to the races not subdued
(aetas and mountains igorrots the following advantages in returns for their
voluntary submission: to live in towns; unity among their families; concession of
good lands and the right to cultivate them in the manner they wish and in the way
them deem most productive; support during a year, and clothes upon effecting
submission; respect for their habits and customs in so far as the same are not
opposed to natural law; freedom to decide of their own accord as to whether they
want to be Christians or not; the establishment of missions and families of
recognized honesty who shall teach, direct, protect, and give them security and
trust them; the purchase or facility of the sale of their harvests; the exemption
from contributions and tributes for ten years and from thequintas (a kind of tax)
for twenty years; and lastly, that those who are governed by the local authorities

as the ones who elect such officials under the direct charge of the authorities of
the province or district.
10. The races indicated in the preceding article, who voluntarily admit the
advantages offered, shall, in return, have the obligation of constituting their new
towns, of constructing their town hall, schools, and country roads which place
them in communication with one another and with the Christians; provided, the
location of these towns be distant from their actual residences, when the latter do
not have the good conditions of location and cultivations, and provided further the
putting of families in a place so selected by them be authorized in the towns
already constituted.
11. The armed force shall proceed to the prosecution and punishment of the
tribes, that, disregarding the peace, protection, and advantages offered them,
continue in their rebellious attitude on the first of next April, committing from now
on the crimes and vexations against the Christian towns; and for the this
purposes, the Captain General's Office shall proceed with the organization of the
divisions of the Army which, in conjunction with the rural guards (cuadrilleros),
shall have to enter the territory of such tribes. On the expiration of the term, they
shall destroy their dwelling-houses, labors, and implements, and confiscate their
products and cattle. Such a punishment shall necessarily be repeated twice a
year, and for this purpose the military headquarters shall immediately order a
detachment of the military staff to study the zones where such operations shall
take place and everything conducive to the successful accomplishment of the
same.
12. The chiefs of provinces, priests, and missioners, local authorities, and other
subordinates to my authorities, local authorities, and other subordinates to may
authority, civil as well as military authorities, shall give the most effective aid and
cooperation to the said forces in all that is within the attributes and the scope of
the authority of each.
13. With respect to the reduccion of the pagan races found in some of the
provinces in the southern part of the Archipelago, which I intend to visit, the
preceding provisions shall conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-Royal
Patron, a council or permanent commission which shall attend to and decide all
the questions relative to the application of the foregoing regulations that may be
brought to it for consultations by the chiefs of provinces and priests and
missionaries.
15. The secondary provisions which may be necessary, as a complement to the
foregoing, in brining about due compliance with this decree, shall be promulgated
by the respective official centers within their respective jurisdictions. (Gaceta de
Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.)
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the question as to
the best method for dealing with the primitive inhabitants has been a perplexing one.
1. Organic law.

The first order of an organic character after the inauguration of the American Government
in the Philippines was President McKinley's Instructions to the Commission of April 7, 1900,
later expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress
of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent
congressional legislation. One paragraph of particular interest should here be quoted,
namely:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt
the same course followed by Congress in permitting the tribes of our North
American Indians to maintain their tribal organization and government and under
which many of these tribes are now living in peace and contentment, surrounded
by civilization to which they are unable or unwilling to conform. Such tribal
governments should, however, be subjected to wise and firm regulation; and,
without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an
Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to provide
for a legislative body and, with this end in view, to name the prerequisites for the
organization of the Philippine Assembly. The Philippine Legislature, composed of the
Philippine Commission and the Philippine Assembly, was to have jurisdiction over the
Christian portion of the Islands. The Philippine Commission was to retain exclusive
jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of
Congress of August 29, 1916, commonly known as the Jones Law. This transferred the
exclusive legislative jurisdiction and authority theretofore exercised by the Philippine
Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into
twelve senatorial districts, the twelfth district to be composed of the Mountain Province,
Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The Governor-General
of the Philippine Islands was authorized to appoint senators and representatives for the
territory which, at the time of the passage of the Jones Law, was not represented in the
Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a bureau to
be known as the "Bureau of non-Christian Tribes" which shall have general supervision over
the public affairs of the inhabitants which are represented in the Legislature by appointed
senators and representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line between the
territory not inhabited by Moros or other non-Christian tribes, and the territory which Moros
or other non-Christian tribes, and the territory which is inhabited by Moros or other nonChristian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts of the
Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49
concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act
no. 83, the Provincial Government Act; Act No. 183, the Character of the city of Manila; Act
No. 7887, providing for the organization and government of the Moro Province; Act No.
1396, the Special Provincial Government Act; Act No. 1397, the Township Government Act;
Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio charger;
and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The major
portion of these laws have been carried forward into the Administrative Codes of 1916 an
d1917.
Of more particular interest are certain special laws concerning the government of the
primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by

the United States Philippine Commission, having reference to the Province of Nueva
Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145,
4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos
Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua
(Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring
to the Manguianes, we insert Act No. 547:
No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL
GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.
By authority of the United States, be it enacted by the Philippine Commission,
that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not
progressed sufficiently in civilization to make it practicable to bring them under
any form of municipal government, the provincial governor is authorized, subject
to the approval of the Secretary of the Interior, in dealing with these Manguianes
to appoint officers from among them, to fix their designations and badges of
office, and to prescribe their powers and duties: Provided, That the powers and
duties thus prescribed shall not be in excess of those conferred upon township
officers by Act Numbered Three hundred and eighty-seven entitled "An Act
providing for the establishment of local civil Governments in the townships and
settlements of Nueva Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial
governor is further authorized, when he deems such a course necessary in the
interest of law and order, to direct such Manguianes to take up their habitation on
sites on unoccupied public lands to be selected by him and approved by the
provincial board. Manguianes who refuse to comply with such directions shall upon
conviction be imprisonment for a period not exceeding sixty days.
SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his
province to acquire the knowledge and experience necessary for successful local
popular government, and his supervision and control over them shall be exercised
to this end, an to the end that law and order and individual freedom shall be
maintained.
SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may
be organized under the provisions of sections one to sixty-seven, inclusive, of Act
Numbered three hundred and eighty-seven, as a township, and the geographical
limits of such township shall be fixed by the provincial board.
SEC. 5. The public good requiring the speedy enactment of this bill, the passage of
the same is hereby expedited in accordance with section two of 'An Act
prescribing the order of procedure by the Commission in the enactment of laws,'
passed September twenty-sixth, nineteen hundred.

language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two
Administrative Codes retained the provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines and a settled
and consistent practice with reference to the methods to be followed for their
advancement.
C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in varying forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to the
Commission.
The most commonly accepted usage has sanctioned the term "non-Christian tribes." These
words are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law.
They are also to be found in Act No. 253 of the Philippines Commission, establishing a
Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine Legislature, carried
forward into sections 701-705 of the Administrative Code of 1917, reestablishing this
Bureau. Among other laws which contain the phrase, there can be mentioned Acts Nos.
127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been
the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into
being of a Filipinized legislature. These terms can be found in sections 2076, 2077, 2390,
2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative
Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as
well as in Act No. 1667 of the Philippine Commission.
The Administrative Code specifically provides that the term "non-Christian" shall include
Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561,
Administrative Code of 1916, taken from Act No. 2408, sec. 3.)
D. MEANING OF TERM "NON-CHRISTIAN."
If we were to follow the literal meaning of the word "non-Christian," it would of course
result in giving to it a religious signification. Obviously, Christian would be those who
profess the Christian religion, and non-Christians, would be those who do not profess the
Christian religion. In partial corroboration of this view, there could also be cited section
2576 of the last Administrative Code and certain well-known authorities, as Zuiga,
"Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and
Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair &
Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez,
"Philippine Progress prior to 1898," vol. I. p. 107.)
Not content with the apparent definition of the word, we shall investigate further to
ascertain what is its true meaning.

SEC. 6. This Act shall take effect on its passage.

Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396
and 1397. The last named Act incorporated and embodied the provisions in general

In one sense, the word can have a geographical signification. This is plainly to be seen by
the provisions of many laws. Thus, according to the Philippine Bill, the authority of the
Philippine Assembly was recognized in the "territory" of the Islands not inhabited by Moros
or other non-Christian tribes. Again, the Jones Law confers similar recognition in the
authorization of the twelfth senatorial district for the "territory not now represented in the
Philippine Assembly." The Philippines Legislature has, time and again, adopted acts making

certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or
other non-Christian tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The
first section of this article, preceding section 2145, makes the provisions of the article
applicable only in specially organized provinces. The specially organized provinces are the
Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the
provinces to which the Philippine Legislature has never seen fit to give all the powers of
local self-government. They do not, however, exactly coincide with the portion of the
Philippines which is not granted popular representation. Nevertheless, it is still a
geographical description.
It is well-known that within the specially organized provinces, there live persons some of
who are Christians and some of whom are not Christians. In fact, the law specifically
recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)
If the religious conception is not satisfactory, so against the geographical conception is
likewise inadquate. The reason it that the motive of the law relates not to a particular
people, because of their religion, or to a particular province because of its location, but the
whole intent of the law is predicated n the civilization or lack of civilization of the
inhabitants.
At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually
introduce the term. "The so-called non-Christian" is a favorite expression. The Secretary of
the Interior who for so many years had these people under his jurisdiction, recognizing the
difficulty of selecting an exact designation, speaks of the "backward Philippine peoples,
commonly known as the 'non-Christian tribes."' (See Hearings before the Committee on the
Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An Act
to declare the purpose of the People of the United States as to the future political status of
the Philippine Islands and to provide a more autonomous government for the Islands, pp.
346, 351; letter of the Secretary of the Interior of June 30, 1906, circulated by the
Executive Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of civilization, is
substantiated by reference to legislative, judicial, and executive authority.
The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections
701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act
No. 253 charged the Bureau of non-Christian tribes to conduct "systematic investigations
with reference to non-Christian tribes . . . with special view to determining the most
practicable means for bringing about their advancement in civilization and material
property prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the case of United
States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect
of a tribal marriage in connection with article 423 of the Penal code concerning the
husband who surprises his wife in the act of adultery. In discussing the point, the court
makes use of the following language:
. . . we are not advised of any provision of law which recognizes as legal a tribal
marriage of so-called non-Christians or members of uncivilized tribes, celebrated
within that province without compliance with the requisites prescribed by General
Orders no. 68. . . . We hold also that the fact that the accused is shown to be a
member of an uncivilized tribe, of a low order of intelligence, uncultured and
uneducated, should be taken into consideration as a second marked extenuating
circumstance.

Of much more moment is the uniform construction of execution officials who have been
called upon to interpret and enforce the law. The official who, as a member of the
Philippine Commission, drafted much of the legislation relating to the so-called Christians
and who had these people under his authority, was the former Secretary of the Interior.
Under date of June 30, 1906, this official addressed a letter to all governor of provinces,
organized under the Special Provincial Government Act, a letter which later received
recognition by the Governor-General and was circulated by the Executive Secretary,
reading as follows:
Sir: Within the past few months, the question has arisen as to whether people who
were originally non-Christian but have recently been baptized or who are children
of persons who have been recently baptized are, for the purposes of Act 1396 and
1397, to be considered Christian or non-Christians.
It has been extremely difficult, in framing legislation for the tribes in these islands
which are not advanced far in civilization, to hit upon any suitable designation
which will fit all cases. The number of individual tribes is so great that it is almost
out of the question to enumerate all of them in an Act. It was finally decided to
adopt the designation 'non-Christians' as the one most satisfactory, but the real
purpose of the Commission was not so much to legislate for people having any
particular religious belief as for those lacking sufficient advancement so that they
could, to their own advantage, be brought under the Provincial Government Act
and the Municipal Code.
The mere act of baptism does not, of course, in itself change the degree of
civilization to which the person baptized has attained at the time the act of
baptism is performed. For practical purposes, therefore, you will give the member
of so-called "wild tribes" of your province the benefit of the doubt even though
they may recently have embraced Christianity.
The determining factor in deciding whether they are to be allowed to remain
under the jurisdiction of regularly organized municipalities or what form of
government shall be afforded to them should be the degree of civilization to which
they have attained and you are requested to govern yourself accordingly.
I have discussed this matter with the Honorable, the Governor-General, who
concurs in the opinion above expressed and who will have the necessary
instructions given to the governors of the provinces organized under the Provincial
Government Act. (Internal Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member of this court,
has the following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but while
no other better classification has as yet been made the present classification
should be allowed to stand . . . I believe the term carries the same meaning as the
expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein
quoted). It is indicative of the degree of civilization rather than of religious
denomination, for the hold that it is indicative of religious denomination will make
the law invalid as against that Constitutional guaranty of religious freedom.
Another official who was concerned with the status of the non-Christians, was the Collector
of Internal Revenue. The question arose for ruling relatives to the cedula taxation of the
Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior was requested
on the point, who, by return indorsement, agreed with the interpretation of the Collector of
Internal Revenue. This Construction of the Collector of Internal Revenue can be found in

circular letter No. 188 of the Bureau of Internal Revenue, dated June 11, 1907, reading as
follows (Internal Revenue Manual, p. 214):
The internal revenue law exempts "members of non-Christian tribes" from the
payment of cedula taxes. The Collector of Internal Revenue has interpreted this
provision of law to mean not that persons who profess some form of Christian
worship are alone subject to the cedula tax, and that all other person are exempt;
he has interpreted it to mean that all persons preserving tribal relations with the
so-called non-Christian tribes are exempt from the cedula tax, and that all others,
including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax
so long as they live in cities or towns, or in the country in a civilized condition. In
other words, it is not so much a matter of a man's form of religious worship or
profession that decides whether or not he is subject to the cedula tax; it is more
dependent on whether he is living in a civilized manner or is associated with the
mountain tribes, either as a member thereof or as a recruit. So far, this question
has not come up as to whether a Christian, maintaining his religious belief, but
throwing his lot and living with a non-Christian tribe, would or would not be
subject to the cedula tax. On one occasion a prominent Hebrew of Manila claimed
to this office that he was exempt from the cedula tax, inasmuch as he was not a
Christian. This Office, however, continued to collect cedula taxes from all the Jews,
East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of
the cedula taxes paid in this city are paid by men belonging to the nationalities
mentioned. Chinamen, Arabs and other s are quite widely scattered throughout
the Islands, and a condition similar to that which exist in Manila also exists in most
of the large provincial towns. Cedula taxes are therefore being collected by this
Office in all parts of these Islands on the broad ground that civilized people are
subject to such taxes, and non-civilized people preserving their tribal relations are
not subject thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.
On September 17, 1910, the Collector of Internal Revenue addressed circular letter No.
327, approved by the Secretary of Finance and Justice, to all provincial treasurers. This
letter in part reads:
In view of the many questions that have been raised by provincial treasurers
regarding cedula taxes due from members of non-Christian tribes when they come
in from the hills for the purposes of settling down and becoming members of the
body politic of the Philippine Islands, the following clarification of the laws
governing such questions and digest of rulings thereunder is hereby published for
the information of all concerned:
Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of
the fact that they do not profess Christianity, but because of their uncivilized
mode of life and low state of development. All inhabitants of the Philippine Islands
classed as members of non-Christian tribes may be divided into three classes in so
far as the cedula tax law is concerned . . .

reaching the age of eighteen subsequent to the expiration of such period, and a
regular class A, D, F, or H cedula, as the case may be, should be furnished him
without penalty and without requiring him to pay the tax for former years.
In conclusion, it should be borne in mind that the prime factors in determining
whether or not a man is subject to the regular cedula tax is not the circumstance
that he does or does not profess Christianity, nor even his maintenance of or
failure to maintain tribal relations with some of the well known wild tribes, but his
mode of life, degree of advancement in civilization and connection or lack of
connection with some civilized community. For this reason so called "Remontados"
and "Montescos" will be classed by this office as members of non-Christian tribes
in so far as the application of the Internal Revenue Law is concerned, since, even
though they belong to no well recognized tribe, their mode of life, degree of
advancement and so forth are practically the same as those of the Igorrots and
members of other recognized non-Christina tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.
The two circular above quoted have since been repealed by Bureau of Internal Revenue
Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal
Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of
Finance and Justice. Section 30 of the regulations is practically a transcript of Circular
Letter No. 327.
The subject has come before the Attorney-General for consideration. The Chief of
Constabulary request the opinion of the Attorney-General as to the status of a nonChristian who has been baptized by a minister of the Gospel. The precise questions were
these: "Does he remain non-Christian or is he entitled to the privileges of a Christian? By
purchasing intoxicating liquors, does he commit an infraction of the law and does the
person selling same lay himself liable under the provision of Act No. 1639?" The opinion of
Attorney-General Avancea, after quoting the same authorities hereinbefore set out,
concludes:
In conformity with the above quoted constructions, it is probable that is probable
that the person in question remains a non-Christian, so that, in purchasing
intoxicating liquors both he and the person selling the same make themselves
liable to prosecution under the provisions of Act No. 1639. At least, I advise you
that these should be the constructions place upon the law until a court shall hold
otherwise.
Solicitor-General Paredes in his brief in this case says:

Whenever any member of an non-Christian tribe leaves his wild and uncivilized
mode of life, severs whatever tribal relations he may have had and attaches
himself civilized community, belonging a member of the body politic, he thereby
makes himself subject to precisely the same law that governs the other members
of that community and from and after the date when he so attaches himself to the
community the same cedula and other taxes are due from him as from other
members thereof. If he comes in after the expiration of the delinquency period the
same rule should apply to him as to persons arriving from foreign countries or

With respect to the meaning which the phrase non-Christian inhabitants has in the
provisions of the Administrative code which we are studying, we submit that said
phrase does not have its natural meaning which would include all non-Christian
inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but
simply refers to those uncivilized members of the non-Christian tribes of the
Philippines who, living without home or fixed residence, roam in the mountains,
beyond the reach of law and order . . .

The Philippine Commission in denominating in its laws that portion of the

inhabitants of the Philippines which live in tribes as non-Christian tribes, as
distinguished from the common Filipinos which carry on a social and civilized life,
did not intended to establish a distinction based on the religious beliefs of the
individual, but, without dwelling on the difficulties which later would be
occasioned by the phrase, adopted the expression which the Spanish legislation
employed to designate the uncivilized portion of the inhabitants of the Philippines.
The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and
2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent
to members of uncivilized tribes of the Philippines, not only because this is the
evident intention of the law, but because to give it its lateral meaning would make
the law null and unconstitutional as making distinctions base the religion of the
individual.
The Official Census of 1903, in the portion written by no less an authority than De. David P.
Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population in the
Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine
Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio
Villamor, writes that the classification likely to be used in the Census now being taken is:
"Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary
of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a subdivision under the title non-Christian tribes is, "Physical and Political Characteristics of the
non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to
religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive
officials, specifically, join in the proposition that the term "non-Christian" refers, not to
religious belief, but, in a way , to geographical area, and, more directly, to natives of the
Philippine Islands of a law grade of civilization, usually living in tribal relationship apart
from settled communities.
E. THE MANGUIANES.
The so-called non-Christians are in various state approaching civilization. The Philippine
Census of 1903 divided them into four classes. Of the third class, are the Manguianes (or
Mangyans) of Mindoro.
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los
nombres de Rozas de Filipinas, says:
In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan,"
"negro." It may be that the use of this word is applicable to a great number of
Filipinos, but nevertheless it has been applied only to certain inhabitants of
Mindoro. Even in primitive times without doubt this name was given to those of
that island who bear it to-day, but its employed in three Filipino languages shows
that the radical ngian had in all these languages a sense to-day forgotten. In
Pampango this ending still exists and signifies "ancient," from which we can
deduce that the name was applied to men considered to be the ancient
inhabitants, and that these men were pushed back into the interior by the modern
invaders, in whose language they were called the "ancients."
The Manguianes are very low in culture. They have considerable Negrito blood and have
not advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive,
semi-nomadic people. They number approximately 15,000. The manguianes have shown
no desire for community life, and, as indicated in the preamble to Act No. 547, have not

progressed sufficiently in civilization to make it practicable to bring them under any form of
municipal government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23,
460.)
III. COMPARATIVE THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the policy
adopted by the United States for the Indian Tribes. The methods followed by the
Government of the Philippines Islands in its dealings with the so-called non-Christian
people is said, on argument, to be practically identical with that followed by the United
States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can
be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been treated as
"in a state of pupilage." The recognized relation between the Government of the United
States and the Indians may be described as that of guardian and ward. It is for the
Congress to determine when and how the guardianship shall be terminated. The Indians
are always subject to the plenary authority of the United States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells
how the Congress passed an Act in 1819 "for promoting those humane designs of civilizing
the neighboring Indians." After quoting the Act, the opinion goes on "This act avowedly
contemplates the preservation of the Indian nations as an object sought by the United
States, and proposes to effect this object by civilizing and converting them from hunters
into agriculturists."
A leading case which discusses the status of the Indians is that of the United
States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the
United States Constitution which gives Congress "power to regulate commerce with foreign
nations, and among the several States, and with the Indian tribes." The court then
proceeds to indicate a brief history of the position of the Indians in the United States (a
more extended account of which can be found in Marshall's opinion in
Worcester vs. Georgia, supra), as follows:
The relation of the Indian tribes living within the borders of the United States, both
before and since the Revolution, to the people of the United States, has always
been an anomalous one and of a complex character.
Following the policy of the European Governments in the discovery of American
towards the Indians who were found here, the colonies before the Revolution and
the States and the United States since, have recognized in the Indians a
possessory right to the soil over which they roamed and hunted and established
occasional villages. But they asserted an ultimate title in the land itself, by which
the Indian tribes were forbidden to sell or transfer it to other nations or peoples
without the consent of this paramount authority. When a tribe wished to dispose of
its lands, or any part of it, or the State or the United States wished to purchase it,
a treaty with the tribe was the only mode in which this could be done. The United
States recognized no right in private persons, or in other nations, to make such a
purchase by treaty or otherwise. With the Indians themselves these relation are
equally difficult to define. They were, and always have been, regarded as having a
semi-independent position when they preserved their tribal relations; not as
States, not as nation not a possessed of the fall attributes of sovereignty, but as a
separate people, with the power of regulating their internal and social relations,
and thus far not brought under the laws of the Union or of the State within whose
limits they resided.

The opinion then continues:

It seems to us that this (effect of the law) is within the competency of Congress.
These Indian tribes are the wards of the nation. The are
communities dependent on the United States. dependent largely for their daily
food. Dependent for their political rights. They owe no allegiance to the States,
and receive from the no protection. Because of the local ill feeling, the people of
the States where they are found are often their deadliest enemies. From their very
weakness and helplessness, so largely due to the course of dealing of the Federal
Government with them and the treaties in which it has been promised, there arise
the duty of protection, and with it the power. This has always been recognized by
the Executive and by Congress, and by this court, whenever the question has
arisen . . . The power of the General Government over these remnants of race
once powerful, now weak and diminished in numbers, is necessary to their
protection, as well as to the safety of those among whom they dwell. it must exist
in that government, because it never has existed anywhere else, because the
theater of its exercise is within the geographical limits of the United States,
because it has never been denied, and because it alone can enforce its laws on all
the tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be
considered was whether the status of the Pueblo Indians and their lands was such that
Congress could prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood. The court looked to the reports
of the different superintendent charged with guarding their interests and founds that these
Indians are dependent upon the fostering care and protection of the government "like
reservation Indians in general." Continuing, the court said "that during the Spanish
dominion, the Indians of the pueblos were treated as wards requiring special protection,
where subjected to restraints and official supervisions in the alienation of their property."
And finally, we not the following: "Not only does the Constitution expressly authorize
Congress to regulate commerce with the Indians tribes, but long-continued legislative and
executive usage and an unbroken current of judicial decisions have attributed to the United
States as a superior and civilized nation the power and the duty of exercising a fostering
care and protection over all dependent Indian communities within its borders, whether
within its original territory or territory subsequently acquired, and whether within or
without the limits of a state."
With reference to laws affecting the Indians, it has been held that it is not within the power
of the courts to overrule the judgment of Congress. For very good reason, the subject has
always been deemed political in nature, not subject to the jurisdiction of the judicial
department of the government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine
[1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra;
U.S.vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall, 616;
Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169 U.S.., 264; Lone
Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204 U.S., 415;
Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S.,
286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N.
S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian
reservation, it has full authority to pass such laws and authorize such measures as may be
necessary to give to the Indians thereon full protection in their persons and property.
(U.S. vs. Thomas [1894], 151 U.S., 577.)
All this borne out by long-continued legislative and executive usage, and an unbroken line
of judicial decisions.
The only case which is even remotely in point and which, if followed literally, might result in
the issuance ofhabeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No.
14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier

General George Crook at the relation of Standing Bear and other Indians, formerly
belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators
are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the
Indian Territory; that they had some time previously withdrawn from the tribe, and
completely severed their tribal relations therewith, and had adopted the general habits of
the whites, and were then endeavoring to maintain themselves by their own exertions, and
without aid or assistance from the general government; that whilst they were thus
engaged, and without being guilty of violating any of the laws of the United States, they
were arrested and restrained of their liberty by order of the respondent, George Crook. The
substance of the return to the writ was that the relators are individual members of, and
connected with, the Ponca tribe of Indians; that they had fled or escaped form a
reservation situated some place within the limits of the Indian Territory had departed
therefrom without permission from the Government; and, at the request of the Secretary of
the Interior, the General of the Army had issued an order which required the respondent to
arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the
said order, he had caused the relators to be arrested on the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal imprisonment
by habeas corpus. The second question, of much greater importance, related to the right of
the Government to arrest and hold the relators for a time, for the purpose of being returned
to the Indian Territory from which it was alleged the Indian escaped. In discussing this
question, the court reviewed the policy the Government had adopted in its dealing with the
friendly tribe of Poncase. Then, continuing, the court said: "Laws passed for the
government of the Indian country, and for the purpose of regulating trade and intercourse
with the Indian tribes, confer upon certain officers of the Government almost unlimited
power over the persons who go upon the reservations without lawful authority . . . Whether
such an extensive discretionary power is wisely vested in the commissioner of Indian
affairs or not , need not be questioned. It is enough to know that the power rightfully
exists, and, where existing, the exercise of the power must be upheld." The decision
concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United States,
and has, therefore, the right to sue out a writ of habeas corpus in a federal court,
or before a federal judge, in all cases where he may be confined or in custody
under color of authority of the United States or where he is restrained of liberty in
violation of the constitution or laws of the United States.
2. That General George Crook, the respondent, being commander of the military
department of the Platte, has the custody of the relators, under color of authority
of the United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to the
Indian Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the more
fortunate white race, and have the inalienable right to "life, liberty, and the
pursuit of happiness," so long as they obey the laws and do not trespass on
forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States, and in
violation of the laws thereof, the relators must be discharged from custody, and it
is so ordered.

As far as the first point is concerned, the decision just quoted could be used as authority to
determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine
Islands, is a "person" within the meaning of theHabeas Corpus Act, and as such, entitled to
sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We
so decide.
As to the second point the facts in the Standing Bear case an the Rubi case are not exactly
identical. But even admitting similarity of facts, yet it is known to all that Indian
reservations do exist in the United States, that Indians have been taken from different parts
of the country and placed on these reservation, without any previous consultation as to
their own wishes, and that, when once so located, they have been made to remain on the
reservation for their own good and for the general good of the country. If any lesson can be
drawn form the Indian policy of the United States, it is that the determination of this policy
is for the legislative and executive branches of the government and that when once so
decided upon, the courts should not interfere to upset a carefully planned governmental
system. Perhaps, just as may forceful reasons exists for the segregation as existed for the
segregation of the different Indian tribes in the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.
The first constitutional objection which confronts us is that the Legislature could not
delegate this power to provincial authorities. In so attempting, it is contended, the
Philippine Legislature has abdicated its authority and avoided its full responsibility.
That the maxim of Constitutional Law forbidding the delegation of legislative power should
be zealously protected, we agree. An understanding of the rule will, however, disclose that
it has not bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided by Judge
Ranney, and since followed in a multitude of case, namely: "The true distinction therefore is
between the delegation of power to make the law, which necessarily involves a discretion
as to what it shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the later no valid
objection can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1
Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard ([1825],
10 Wheat., 1) may be committed by the Legislature to an executive department or official.
The Legislature may make decisions of executive departments of subordinate official
thereof, to whom t has committed the execution of certain acts, final on questions of fact.
(U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give
prominence to the "necessity" of the case.
Is not all this exactly what the Legislature has attempted to accomplish by the enactment
of section 21454 of the Administrative Code? Has not the Legislature merely conferred
upon the provincial governor, with the approval of the provincial board and the Department
Head, discretionary authority as to the execution of the law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to
require the Secretary of the Interior to approve the selection and taking of one hundred
and sixty acres by the relator out of the lands ceded to the United States by the Wichita
and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided:
"The Commissioner of Indian Affairs shall, under the direction of the Secretary of the
Interior, and agreeably to such regulations as the President may prescribe, have the
management of all Indian affairs, and of all matters arising out to the Indian relations."
Justice Holmes said: "We should hesitate a good deal, especially in view of the long

established practice of the Department, before saying that this language was not broad
enough to warrant a regulation obviously made for the welfare of the rather helpless
people concerned. The power of Congress is not doubted. The Indians have been treated as
wards of the nation. Some such supervision was necessary, and has been exercised. In the
absence of special provisions naturally it would be exercised by the Indian Department."
(See also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204
U.S.., 364, reviewing the previous decisions of the United States Supreme Court:
U.S. vs. Lane [1914], 232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An exception to
the general rule. sanctioned by immemorial practice, permits the central legislative body to
delegate legislative powers to local authorities. The Philippine Legislature has here
conferred authority upon the Province of Mindoro, to be exercised by the provincial
governor and the provincial board.
Who but the provincial governor and the provincial board, as the official representatives of
the province, are better qualified to judge "when such as course is deemed necessary in
the interest of law and order?" As officials charged with the administration of the province
and the protection of its inhabitants, who but they are better fitted to select sites which
have the conditions most favorable for improving the people who have the misfortune of
being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative
power by the Philippine Legislature to provincial official and a department head.
B. RELIGIOUS DISCRIMINATION
The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of
his unknown clients, says that "The statute is perfectly clear and unambiguous. In limpid
English, and in words as plain and unequivocal as language can express, it provides for the
segregation of 'non-Christians' and none other." The inevitable result, them, is that the law
"constitutes an attempt by the Legislature to discriminate between individuals because of
their religious beliefs, and is, consequently, unconstitutional."
Counsel's premise once being conceded, his arguments is answerable the Legislature
must be understood to mean what it has plainly expressed; judicial construction is then
excluded; religious equality is demanded by the Organic Law; the statute has violated this
constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel
free to discard the long continued meaning given to a common expression, especially as
classification of inhabitants according to religious belief leads the court to what it should
avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to
natives of the Philippines Islands of a low grade of civilization, and that section 2145 of the
Administrative Code of 1917, does not discriminate between individuals an account of
religious differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the President's
instructions of to the Commission, the Philippine Bill, and the Jones Law, providing "That no
law shall be enacted in said Islands which shall deprive any person of life, liberty, or
property without due process of law, or deny to any person therein the equal protection of
the laws." This constitutional limitation is derived from the Fourteenth Amendment to the
United States Constitution and these provisions, it has been said "are universal in their
application, to all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.)

The protection afforded the individual is then as much for the non-Christian as for the
Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible with
the possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)
Liberty is the creature of law, essentially different from that authorized
licentiousness that trespasses on right. That authorized licentiousness that
trespasses on right. It is a legal and a refined idea, the offspring of high
civilization, which the savage never understood, and never can understand.
Liberty exists in proportion to wholesome restraint; the more restraint on others to
keep off from us, the more liberty we have . . . that man is free who is protected
from injury. (II Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not being
forced to do what one ought not do desire. (Montesque, spirit of the Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac
according to one's own will. It is only freedom from restraint under conditions
essential to the equal enjoyment of the same right by others. (Field, J., in
Crowley vs. Christensen [1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times and in
all circumstances, wholly freed from restraint. There are manifold restraints to
which every person is necessarily subject for the common good. On any other
basis, organized society could not exist with safety to its members. Society based
on the rule that each one is a law unto himself would soon be confronted with
disorder and anarchy. Real liberty for all could not exist under the operation of a
principle which recognizes the right of each individual person to use his own,
whether in respect of his person or his property, regardless of the injury that may
be done to others . . . There is, of course, a sphere with which the individual may
asserts the supremacy of his own will, and rightfully dispute the authority of any
human government especially of any free government existing under a written
Constitution to interfere with the exercise of that will. But it is equally true that
in very well-ordered society charged with the duty of conserving the safety of its
members, the rights of the individual in respect of his liberty may at times, under
the pressure of great dangers, be subjected to such restraint to be enforced by
reasonable regulations, as the safety of the general public may demand." (Harlan,
J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason and the
upright and honorable conscience of the individual. (Apolinario Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a
civilized community, consistently with the peaceful enjoyment of like freedom in others.
The right to Liberty guaranteed by the Constitution includes the right to exist and the right
to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the faculties with which he has been endowed by this
Creator, subject only to such restraints as are necessary for the common welfare. As
enunciated in a long array of authorities including epoch-making decisions of the United
States Supreme Court, Liberty includes the right of the citizens to be free to use his
faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful
calling; to pursue any avocations, an for that purpose. to enter into all contracts which may

be proper, necessary, and essential to his carrying out these purposes to a successful
conclusion. The chief elements of the guaranty are the right to contract, the right to choose
one's employment, the right to labor, and the right of locomotion.
In general, it may be said that Liberty means the opportunity to do those things which are
ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall,
277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274;
Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530.
See 6 R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is plainly
apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty
regulated by law." Implied in the term is restraint by law for the good of the individual and
for the greater good of the peace and order of society and the general well-being. No man
can do exactly as he pleases. Every man must renounce unbridled license. The right of the
individual is necessarily subject to reasonable restraint by general law for the common
good. Whenever and wherever the natural rights of citizen would, if exercises without
restraint, deprive other citizens of rights which are also and equally natural, such assumed
rights must yield to the regulation of law. The Liberty of the citizens may be restrained in
the interest of the public health, or of the public order and safety, or otherwise within the
proper scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; HardieTynes Manufacturing Co. vs.Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law. Daniel
Webster, in the course of the argument in the Dartmouth College Case before the United
States Supreme Court, since a classic in forensic literature, said that the meaning of "due
process of law" is, that "every citizen shall hold his life, liberty, property, an immunities
under the protection of the general rules which govern society." To constitute "due process
of law," as has been often held, a judicial proceeding is not always necessary. In some
instances, even a hearing and notice are not requisite a rule which is especially true where
much must be left to the discretion of the administrative officers in applying a law to
particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a
stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority,
whether sanctioned by age and customs, or newly devised in the discretion of the
legislative power, in furtherance of the public good, which regards and preserves these
principles of liberty and justice, must be held to be due process of law."
(Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . .
"first, that there shall be a law prescribed in harmony with the general powers of the
legislative department of the Government; second, that this law shall be reasonable in its
operation; third, that it shall be enforced according to the regular methods of procedure
prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to
all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United
States Supreme Court. 1) "What is due process of law depends on circumstances. It varies
with the subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212
U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not infringed
by a statute which is applicable to all of a class. The classification must have a reasonable
basis and cannot be purely arbitrary in nature.
We break off with the foregoing statement, leaving the logical deductions to be made later
on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the
United States Constitution particularly as found in those portions of Philippine Organic Law

providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist
except as a punishment for crime whereof the party shall have been duly convicted." It is
quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the
"jurisdiction" of the United States, has force in the Philippine. However this may be, the
Philippine Legislature has, by adoption, with necessary modifications, of sections 268 to
271 inclusive of the United States Criminal Code, prescribed the punishment for these
crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all denote
"a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906],
203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been
applied to any servitude in fact involuntary, no matter under what form such servitude may
have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)
So much for an analysis of those constitutional provisions on which petitioners rely for their
freedom. Next must come a description of the police power under which the State must act
if section 2145 is to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary to note at this
moment is the farreaching scope of the power, that it has become almost possible to limit
its weep, and that among its purposes is the power to prescribe regulations to promote the
health, peace, morals, education, and good order of the people, and to legislate so as to
increase the industries of the State, develop its resources and add to is wealth and
prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is
the right of the government to restrain liberty by the exercise of the police power.
"The police power of the State," one court has said, . . . "is a power coextensive with selfprotection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be
that inherent and plenary power in the State which enables it to prohibit all things hurtful
to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873],
70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely attempt to
dam the on rushing power of legislative discretion, provided the purposes of the law do not
go beyond the great principles that mean security for the public welfare or do not
arbitrarily interfere with the right of the individual.
The Government of the Philippine Islands has both on reason and authority the right to
exercise the sovereign police power in the promotion of the general welfare and the public
interest. "There can be not doubt that the exercise of the police power of the Philippine
Government belongs to the Legislature and that this power is limited only by the Acts of
Congress and those fundamental principles which lie at the foundation of all republican
forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580;
U.S. vs. Pompeya [1915], 31 Phil., 245.)
With the foregoing approximation of the applicable basic principles before us, before finally
deciding whether any constitutional provision has indeed been violated by section 2145 of
the Administrative Code, we should endeavor to ascertain the intention of the Legislature
in enacting this section. If legally possible, such legislative intention should be effectuated.
F. LEGISLATIVE INTENT.

The preamble of the resolution of the provincial board of Mindoro which set apart the
Tigbao reservation, it will be remembered, assigned as reasons fort the action, the
following: (1) The failure of former attempts for the advancement of the non-Christian
people of the province; and (2) the only successfully method for educating the Manguianes
was to oblige them to live in a permanent settlement. The Solicitor-General adds the
following; (3) The protection of the Manguianes; (4) the protection of the public forests in
which they roam; (5) the necessity of introducing civilized customs among the Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of the motives for
its selection, the following:
To inform himself of the conditions of those Manguianes who were taken together
to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the
place. There he found that the site selected is a good one; that creditable progress
has been made in the clearing of forests, construction of buildings, etc., that there
appears to be encouraging reaction by the boys to the work of the school the
requirements of which they appear to meet with enthusiastic interest after the
first weeks which are necessarily a somewhat trying period for children wholly
unaccustomed to orderly behaviour and habit of life. He also gathered the
impression that the results obtained during the period of less than one year since
the beginning of the institution definitely justify its continuance and development.
Of course, there were many who were protesting against that segregation. Such
was naturally to be expected. But the Secretary of the Interior, upon his return to
Manila, made the following statement to the press:
"It is not deemed wise to abandon the present policy over those who
prefer to live a nomadic life and evade the influence of civilization. The
Government will follow its policy to organize them into political
communities and to educate their children with the object of making
them useful citizens of this country. To permit them to live a wayfaring
life will ultimately result in a burden to the state and on account of their
ignorance, they will commit crimes and make depredation, or if not they
will be subject to involuntary servitude by those who may want to abuse
them."
The Secretary of the Interior, who is the official charged with the supervision of all the nonChristian people, has adopted as the polaris of his administration "the advancement of
the non-Christian elements of our population to equality and unification with the highly
civilized Christian inhabitants." This is carried on by the adoption of the following
measures:
(a) Pursuance of the closer settlement policy whereby people of seminomadic race
are induced to leave their wild habitat and settle in organized communities.
(b) The extension of the public school system and the system of public health
throughout the regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to
facilitate their development and the extention of government control.
(d) Construction of roads and trials between one place and another among nonChristians, to promote social and commercial intercourse and maintain amicable
relations among them and with the Christian people.

(e) Pursuance of the development of natural economic resources, especially

agriculture.
( f ) The encouragement of immigration into, and of the investment of private
capital in, the fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued
among the non-Christian people. These people are being taught and guided to
improve their living conditions in order that they may fully appreciate the benefits
of civilization. Those of them who are still given to nomadic habits are being
persuaded to abandon their wild habitat and settle in organized settlements. They
are being made to understand that it is the purpose of the Government to
organize them politically into fixed and per manent communities, thus bringing
them under the control of the Government, to aid them to live and work, protect
them from involuntary servitude and abuse, educate their children, and show
them the advantages of leading a civilized life with their civilized brothers. In
short, they are being impressed with the purposes and objectives of the
Government of leading them to economic, social, and political equality, and
unification with the more highly civilized inhabitants of the country. (See Report of
the Department for 1917.)
The fundamental objective of governmental policy is to establish friendly relations with the
so-called non-Christians, and to promote their educational, agricultural, industrial, and
economic development and advancement in civilization. (Note Acts Nos. 2208, 2404,
2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of
the Government towards the non-Christian people in the following unequivocal terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos
and foster by all adequate means and in a systematical, rapid, and complete
manner the moral, material, economic, social, and political development of those
regions, always having in view the aim of rendering permanent the mutual
intelligence between, and complete fusion of, all the Christian and non-Christian
elements populating the provinces of the Archipelago. (Sec. 3.)
May the Manguianes not be considered, as are the Indians in the United States, proper
wards of the Filipino people? By the fostering care of a wise Government, may not these
unfortunates advance in the "habits and arts of civilization?" Would it be advisable for the
courts to intrude upon a plan, carefully formulated, and apparently working out for the
ultimate good of these people?
In so far as the Manguianes themselves are concerned, the purpose of the Government is
evident. Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life,
making depredations on their more fortunate neighbors, uneducated in the ways of
civilization, and doing nothing for the advancement of the Philippine Islands. What the
Government wished to do by bringing than into a reservation was to gather together the
children for educational purposes, and to improve the health and morals was in fine, to
begin the process of civilization. this method was termed in Spanish times, "bringing under
the bells." The same idea adapted to the existing situation, has been followed with
reference to the Manguianes and other peoples of the same class, because it required, if
they are to be improved, that they be gathered together. On these few reservations there
live under restraint in some cases, and in other instances voluntarily, a few thousands of
the uncivilized people. Segregation really constitutes protection for the manguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we know
that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as
civilized men are free, and they are not the equals of their more fortunate brothers. True,
indeed, they are citizens, with many but not all the rights which citizenship implies. And
true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low
degree of intelligence, and Filipinos who are a drag upon the progress of the State.
In so far as the relation of the Manguianes to the State is concerned, the purposes of the
Legislature in enacting the law, and of the executive branch in enforcing it, are again plain.
Settlers in Mindoro must have their crops and persons protected from predatory men, or
they will leave the country. It is no argument to say that such crimes are punished by the
Penal Code, because these penalties are imposed after commission of the offense and not
before. If immigrants are to be encouraged to develop the resources of the great Islands of
Mindoro, and its, as yet, unproductive regions, the Government must be in a position to
guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the State.
Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself
from destruction must prod on the laggard and the sluggard. The great law of
overwhelming necessity is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:
Living a nomadic and a wayfaring life and evading the influence of civilization,
they (the manguianes) are engaged in the works of destruction burning and
destroying the forests and making illegal caigins thereon. Not bringing any
benefit to the State but instead injuring and damaging its interests, what will
ultimately become of these people with the sort of liberty they wish to preserve
and for which they are now fighting in court? They will ultimately become a heavy
burden to the State and on account of their ignorance they will commit crimes and
make depredations, or if not they will be subjected to involuntary servitude by
those who may want to abuse them.
There is no doubt in my mind that this people a right conception of liberty and
does not practice liberty in a rightful way. They understand liberty as the right to
do anything they will going from one place to another in the mountains, burning
and destroying forests and making illegal caigins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can
they allege that they are being deprived thereof without due process of law?
xxx

xxx

xxx

But does the Constitutional guaranty that 'no person shall be deprived of his
liberty without due process of law' apply to a class of persons who do not have a
correct idea of what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such
class of persons as to what liberty is. It will mean, in the case at bar, that the
Government should not adopt any measures looking to the welfare and
advancement of the class of persons in question. It will mean that this people
should be let along in the mountains and in a permanent state of savagery
without even the remotest hope of coming to understand liberty in its true and
noble sense.

In dealing with the backward population, like the Manguianes, the Government
has been placed in the alternative of either letting them alone or guiding them in
the path of civilization. The latter measure was adopted as the one more in accord
with humanity and with national conscience.
xxx

xxx

xxx

The national legislation on the subject of non-Christian people has tended more
and more towards the education and civilization of such people and fitting them to
be citizens. The progress of those people under the tutelage of the Government is
indeed encouraging and the signs of the times point to a day which is not far
distant when they will become useful citizens. In the light of what has already
been accomplished which has been winning the gratitude of most of the backward
people, shall we give up the noble work simply because a certain element,
believing that their personal interests would be injured by such a measure has
come forward and challenged the authority of the Government to lead this people
in the pat of civilization? Shall we, after expending sweat, treasure, and even
blood only to redeem this people from the claws of ignorance and superstition,
now willingly retire because there has been erroneously invoked in their favor that
Constitutional guaranty that no person shall be deprived of his liberty without due
process of law? To allow them to successfully invoke that Constitutional guaranty
at this time will leave the Government without recourse to pursue the works of
civilizing them and making them useful citizens. They will thus left in a permanent
state of savagery and become a vulnerable point to attack by those who doubt,
nay challenge, the ability of the nation to deal with our backward brothers.
The manguianes in question have been directed to live together at Tigbao. There
they are being taught and guided to improve their living conditions. They are
being made to understand that they object of the government is to organize them
politically into fixed and permanent communities. They are being aided to live and
work. Their children are being educated in a school especially established for
them. In short, everything is being done from them in order that their
advancement in civilization and material prosperity may be assured. Certainly
their living together in Tigbao does not make them slaves or put them in a
condition compelled to do services for another. They do not work for anybody but
for themselves. There is, therefore, no involuntary servitude.
But they are compelled to live there and prohibited from emigrating to some other
places under penalty of imprisonment. Attention in this connection is invited to
the fact that this people, living a nomadic and wayfaring life, do not have
permanent individual property. They move from one place to another as the
conditions of living warrants, and the entire space where they are roving about is
the property of the nation, the greater part being lands of public domain.
Wandering from one place to another on the public lands, why can not the
government adopt a measure to concentrate them in a certain fixed place on the
public lands, instead of permitting them to roam all over the entire territory? This
measure is necessary both in the interest of the public as owner of the lands
about which they are roving and for the proper accomplishment of the purposes
and objectives of the government. For as people accustomed to nomadic habit,
they will always long to return to the mountains and follow a wayfaring life, and
unless a penalty is provinced for, you can not make them live together and the
noble intention of the Government of organizing them politically will come to
naught.
G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to
reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to go where
he pleases. Could be not, however, be kept away from certain localities ? To furnish an
example from the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p.
141) Indian reservation. Those citizens certainly did not possess absolute freedom of
locomotion. Again the same law provided for the apprehension of marauding Indians.
Without any doubt, this law and other similar were accepted and followed time and again
without question.
It is said that, if we hold this section to be constitutional, we leave this weak and
defenseless people confined as in a prison at the mercy of unscrupulous official. What, it is
asked, would be the remedy of any oppressed Manguian? The answer would naturally be
that the official into whose hands are given the enforcement of the law would have little or
not motive to oppress these people; on the contrary, the presumption would all be that
they would endeavor to carry out the purposes of the law intelligently and patriotically. If,
indeed, they did ill-treat any person thus confined, there always exists the power of
removal in the hands of superior officers, and the courts are always open for a redress of
grievances. When, however, only the validity of the law is generally challenged and no
particular case of oppression is called to the attention of the courts, it would seems that
the Judiciary should not unnecessarily hamper the Government in the accomplishment of
its laudable purpose.
The question is above all one of sociology. How far, consistently with freedom, may the
right and liberties of the individual members of society be subordinated to the will of the
Government? It is a question which has assailed the very existence of government from the
beginning of time. Now purely an ethical or philosophical subject, nor now to be decided by
force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an
issue, the Judiciary must realize that the very existence of government renders imperatives
a power to restrain the individual to some extent, dependent, of course, on the necessities
of the class attempted to be benefited. As to the particular degree to which the Legislature
and the Executive can go in interfering with the rights of the citizen, this is, and for a along
time to come will be, impossible for the courts to determine.
The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of
economics and political theory, are of the past. The modern period has shown as
widespread belief in the amplest possible demonstration of governmental activity. The
courts unfortunately have sometimes seemed to trial after the other two branches of the
government in this progressive march.
Considered, therefore, purely as an exercise of the police power, the courts cannot fairly
say that the Legislature has exceeded its rightful authority. it is, indeed, an unusual
exercise of that power. But a great malady requires an equally drastic remedy.
Further, one cannot hold that the liberty of the citizen is unduly interfered without when
the degree of civilization of the Manguianes is considered. They are restrained for their own
good and the general good of the Philippines. Nor can one say that due process of law has
not been followed. To go back to our definition of due process of law and equal protection
of the law, there exists a law ; the law seems to be reasonable; it is enforced according to
the regular methods of procedure prescribed; and it applies alike to all of a class.
As a point which has been left for the end of this decision and which, in case of doubt,
would lead to the determination that section 2145 is valid. it the attitude which the courts
should assume towards the settled policy of the Government. In a late decision with which
we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510)
the Chief Justice of the Supreme Court of Tennessee writes:

We can seen objection to the application of public policy as a ratio decidendi. Every really
new question that comes before the courts is, in the last analysis, determined on that
theory, when not determined by differentiation of the principle of a prior case or line of
cases, or by the aid of analogies furnished by such prior case. In balancing conflicting
solutions, that one is perceived to tip the scales which the court believes will best promote
the public welfare in its probable operation as a general rule or principle. But public policy
is not a thing inflexible. No court is wise enough to forecast its influence in all possible
contingencies. Distinctions must be made from time to time as sound reason and a true
sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the so-called nonChristians has been in vain, if we fail to realize that a consistent governmental policy has
been effective in the Philippines from early days to the present. The idea to unify the
people of the Philippines so that they may approach the highest conception of nationality. If
all are to be equal before the law, all must be approximately equal in intelligence. If the
Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile
regions must be developed. The public policy of the Government of the Philippine Islands is
shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to
fulfill this governmental policy, must be confined for a time, as we have said, for their own
good and the good of the country.
Most cautiously should the power of this court to overrule the judgment of the Philippine
Legislature, a coordinate branch, be exercised. The whole tendency of the best considered
case is toward non-interference on the part of the courts whenever political ideas are the
moving consideration. Justice Holmes, in one of the aphorisms for which he is justly
famous, said that "constitutional law, like other mortal contrivances, has to take some
chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the many grave
questions which this case presents, the courts must take "a chance," it should be with a
view to upholding the law, with a view to the effectuation of the general governmental
policy, and with a view to the court's performing its duty in no narrow and bigoted sense,
but with that broad conception which will make the courts as progressive and effective a
force as are the other departments of the Government.
We are of the opinion that action pursuant to section 2145 of the Administrative Code does
not deprive a person of his liberty without due process of law and does not deny to him the
equal protection of the laws, and that confinement in reservations in accordance with said
section does not constitute slavery and involuntary servitude. We are further of the opinion
that section 2145 of the Administrative Code is a legitimate exertion of the police power,
somewhat analogous to the Indian policy of the United States. Section 2145 of the
Administrative Code of 1917 is constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can,
therefore, not issue. This is the true ruling of the court. Costs shall be taxes against
petitioners. So ordered.
Arellano, C.J., Torres and Avancea, JJ., concur.

Separate Opinions
CARSON, J., concurring:

I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the
prevailing, opinion.
The words "non-Christian' have a clear, definite and well settled signification when used in
the Philippine statute-book as a descriptive adjective, applied to "tribes," "people," or
"inhabitants," dwelling in more or less remote districts and provinces throughout the
Islands.
Justice Malcolm, as I think, correctly finds that these words, as used in this connection in
our statute-book, denote the 'low grace of civilization" of the individuals included in the
class to which they are applied. To this I would add that the tests for the determination of
the fact that an individual or tribes is, or is not of the "non-Christian" are, and throughout
the period of American occupation always have been, "the mode of life, the degree of
advancement in civilization, and connection or lack of connection with some civilized
community." (Cf. letter of Collector of Internal Revenue dated September 17, 1910, and set
out in the principal opinion.)
The legislative and administrative history of the Philippine Islands clearly discloses that the
standard of civilization to which a specific tribe must be found to have advanced, to justify
its removal from the class embraces with the descriptive term "non-Christian," as that term
is used in the Philippine statute-book, is that degree of civilization which results in a mode
of life within the tribe, such that it is feasible and practicable to extend to, and enforce
upon its membership the general laws and regulations, administrative, legislative, and
judicial, which control the conduct of the admitted civilized inhabitants of the Islands; a
made of life, furthermore, which does not find expression in tribal customs or practices
which tend to brutalize or debauch the members of the tribe indulging in such customs or
practices, or to expose to loss or peril the lives or property of those who may be brought in
contact with members of the tribe.
So the standard of civilization to which any given number or group of inhabitants of
particular province in these Islands, or any individual member of such a group, must be
found to have advanced, in order to remove such group or individual from the class
embraced within the statutory description of "non-Christian," is that degree of civilization
which would naturally and normally result in the withdrawal by such persons of permanent
allegiance or adherence to a "non-Christian" tribe, had they at any time adhered to or
maintained allegiance to such a tribe; and which would qualify them whether they reside
within or beyond the habitat of a "non-Christian" tribe, not only to maintain a mode of life
independent of a apart from that maintain by such tribe, but a mode of life as would not be
inimical to the lives or property or general welfare of the civilized inhabitants of the Islands
with whom they are brought in contact.
The contention that, in this particular case, and without challenging the validity of the
statute, the writ should issue because of the failure to give these petitioners, as well as the
rest of the fifteen thousand Manguianes affected by the reconcentration order, an
opportunity to be heard before any attempt was made to enforce it, begs the question and
is, of course, tantamount to a contention that there is no authority in law for the issuance
of such an order.
If the fifteen thousand manguianes affected by the order complained of had attained that
degree of civilization which would have made it practicable to serve notice upon, and give
an opportunity for a real hearing, to all the members of the tribe affected by the order, it
may well be doubted whether the provincial board and the Secretary of the Interior would
have been justified in its enforcement By what proceeding known to the law, or to be
specially adopted in a particular case, could the offices of any province provide for a
genuine hearing upon a proposal to issue a reconcentration order upon a head-hunting
tribe in the north of the Island of Luzon; or upon one of the nomadic tribes whose habitat is
in the mountain fastnesses of Mindanao, and whose individual members have no fixed or

known place of residence, or upon the fifteen thousand Manguianes roaming in the wilds of
Mindoro.
Of course, friendly headmen or chief might and, as a rule, should be consulted, after the
practice in the United States when tribes or groups of American Indians have been placed
upon reservations; but since non-Christian head men and chiefs in the Philippines have no
lawful authority to bind their acts or their consent, the objection based on lack of a hearing,
would have the same force whether the issuance of a reconcentration order was or was not
preceded by a pow-wow of this kind.
The truth of the mater is that the power to provide for the issuance of such orders rests
upon analogous principles to those upon which the liberty and freedom or action of
children and persons of unsound minds is restrained, without consulting their wishes, but
for their own good and the general welfare. The power rests upon necessity, that "great
master of all things," and is properly exercised only where certain individuals or groups of
individual are found to be of such a low grade of civilization that their own wishes cannot
be permitted to determine their mode of life or place of residence.
The status of the non-Christian inhabitants of these Islands, and the special and necessarily
paternal attitude assume toward them by the Insular Government is well illustrated by the
following provisions found in the Administrative Code of 1917:
SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). It
shall be the duty of the Bureau of non-Christian tribes to continue the work for
advancement and liberty in favor of the regions inhabited by non-Christian
Filipinos and to foster by all adequate means and in a systematic, rapid, and
completely manner the moral, material, economic, social and political
development of those regions, always having in view the aim of rendering
permanent the mutual intelligence between and complete fusion of all the
Christian and non-Christian elements populating the provinces of the Archipelago.
SEC. 2116. Township and settlement fund. There shall be maintained in the
provincial treasuries of the respective specially organized provinces a special fund
to be known as the township and settlement fund, which shall be available,
exclusively, for expenditures for the benefit of the townships and settlements of
the province, and non-Christian inhabitants of the province, upon approval of the
Secretary of the Interior.
As I understand it, the case at bar does not raise any real question as to the jurisdiction of
the courts of these Islands in habeas corpus proceedings, to review the action of the
administrative authorities in the enforcement of reconcentration orders issued, under
authority of section 2145 of the Administrative Code, against a petitioner challenging the
alleged fact that he is a "non-Christian" as that term is used in the statute. I, therefore,
express no opinion on that question at this time.

MOIR, J., dissenting:

I dissent.
I realize that a dissenting opinion carries little weight, but may sense of justice will not
permit me to let this decision go on record without expressing may strong dissent from the
opinion of Justice Malcolm, concurred in by a majority of the court. I shall not attempt to
analyze the opinion or to go into the question in detail. I shall simply state, as briefly as
may be, the legal and human side of the case as it presents itself to my mind.
The facts are that one Rubi and various other Manguianes in the Province of Mindoro were
ordered by the Provincial governor of Mindoro to remove their residence from their
native habitat and to establish themselves on a reservation at Tigbao in the Province of
Mindoro and to remain there, or be punished by imprisonment if they escaped. This
reservation, as appears from the resolution of the provincial board, extends over an area of
800 hectares of land, which is approximately 2,000 acres, on which about three hundred
manguianes are confined. One of the Manguianes, Dabalos, escaped from the reservation
and was taken in hand by the provincial sheriff and placed in prision at Calapan, solely
because he escaped from the reservation. The Manguianes used out a writ of habeas
corpus in this court, alleging that they are deprived of their liberty in violation of law.
The Solicitor-General of the Philippine Islands makes return to the writ copied in the
majority opinion which states that the provincial governor of Mindoro with the prior
approval of his act by the Department Secretary ordered the placing of the petitioners and
others on a reservation.
The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture.
They have considerable Negrito blood and have not advanced beyond the Negritos in
civilization. They are peaceful, timid, primitive, seminomadic people. They number
approximately 15,000 (?). The manguianes have shown no desire for community life, and,
as indicated in the preamble to Act No. 547, have no progressed sufficiently in civilization
to make it practicable to bring them under any for of municipal government."
It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not
including smaller islands which together make the Province of Mindoro) has an area of
3,851 square miles and a populations of 28, 361 of which 7, 369 are wild or uncivilized
tribes (Manguianes). This appears to be the total Mangyan population of the province. The
total population was less than seven to the mile (Vol. 2, P.I. Census, pp. 30 and 407).
The Island is fertile, heavily wooded and well watered.
It has no savage population, but it is sparsely settled by Christian Filipinos along the coast
and by Manguianes.

JOHNSON, J., dissenting:

I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not
denied. I cannot give my consent to any act which deprives the humblest citizen of his just
liberty without a hearing, whether he be a Christian or non-Christian. All persons in the
Philippine Islands are entitled to a hearing, at least, before they are deprived of their
liberty.

The Manguianes roamed its mountains and valleys, fishing and hunting at will long before
Magallanes [Magellan] anchored his boats in the water of Cebu. They have made little or no
progress in the ways of civilization. "They are a peaceful, timid, primitive, seminomadic
people," whom the Government of the Philippines Islands would bring under the beneficient
influence of civilization and progress.

The law provides for it in section 2145 of the Administrative Code, and for those who like
Dadalos do not take kindly to the ways provided for civilizing them section 2759 provides
the punishment.
The attorney for the petitioners has raised various constitutional questions, but only the
fundamental one will be considered by me. It is that the sections of the Administrative
Code, 2145 and 2759, quoted in the majority opinion, are in violation of the first paragraph
of section 3 of the Act of Congress of August 29, 1916, which reads as follows:
That no law shall be enacted in said Islands which shall deprive any person of life,
liberty or property without due process of law, or deny to any person therein the
equal protection of the laws.
It is not necessary to argue that a Mangyan is one of the persons protected by that
provision.

to the State but, instead, injuring and damaging its interests, what will ultimately
become of those people with the sort of liberty they wish to preserve and for
which they are not fighting in court? They will ultimately become a heavy burden
to the State and, on account of their ignorance, they will commit crimes and make
depredations, or if not they will be subjected to involuntary servitude by those
who may want to abuse them.
There is no doubt in my mind that this people has not a right conception of liberty
and does not practice liberty in a rightful way. They understand liberty as the right
to do anything they will going from one place to another in the mountains,
burning and destroying forests and making illegal caigins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can
they are being deprived thereof without due process of law?
xxx

The Attorney-General argues that the treatment provided for the Manguianes is similar to
that accorded the Indians in the United States, and reference is made all through the
court's decision to the decisions of the United States Supreme Court with reference to the
Indians. It is not considered necessary to go into these cases for the simple reason that all
the Indians nations in the United States were considered as separate nations and all acts
taken in regard to them were the result of separate treaties made by the United States
Government with the Indian nations, and, incompliance with these treaties, reservations
were set apart for them on which they lived and were protected form intrusion and
molestation by white men. Some these reservations were larger than the Islands of Luzon,
and they were not measured in hectares but in thousands of square miles.
The Manguianes are not a separate state. They have no treaty with the Government of the
Philippine Islands by which they have agreed to live within a certain district where they are
accorded exclusive rights. They are citizens of the Philippine Islands. Legally they are
Filipinos. They are entitled to all the rights and privileges of any other citizen of this
country. And when the provincial governor of the Province of Mindoro attempted to take
them from their native habitat and to hold them on the little reservation of about 800
hectares, he deprived them of their rights and their liberty without due process of law, and
they were denied the equal protection of the law.
The majority opinion says "they are restrained for their own good and the general good of
the Philippines."
They are to be made to accept the civilization of the more advanced Filipinos whether they
want it or not. They are backward and deficient in culture and must be moved from their
homes, however humble they may be and "bought under the bells" and made to stay on a
reservation.
Are these petitioners charged with any crime? There is no mention in the return of the
Solicitor-General of the Philippine Islands of any crime having been committed by these
"peacefully, timid, primitive, semi-nomadic people."
A memorandum of the Secretary of the Interior of the Philippine Islands is copied
in extenso in the majority opinion, and from it I gather the nature of their offense which is
that
Living a nomadic and wayfaring life and evading the influence of civilization, they
(the manguianes) are engaged in the works of destruction burning and
destroying the forests and making illegal caiginsthereon. No bringing any benefit

xxx

xxx

But does the constitutional guaranty that "no person shall be deprived of his
liberty without due process of law" apply to a class of persons who do not have a
correct idea of what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such
class of persons as to what liberty is. It will mean, in the case at bar, that the
Government should not adopt any measures looking to the welfare and
advancement of the class of persons in question. It will mean that this people be
let alone in the mountains and in a permanent state of savagery without even the
remotest hope of coming to understand liberty in its true and noble sense.
In dealing with the backward population, like the Manguianes, the Government
has been placed in the alternative of either letting them alone or guiding them in
the path of civilization. The latter measure was adopted as the one more in accord
with humanity and with national conscience.
xxx

xxx

xxx

The national legislation on the subject of non-Christian people has tended more
and more towards the education and civilization of such people and fitting them to
be citizens.
There appear to be two intimations or charges in this memorandum; one is that the
Manguianes destroy the forest by making a caigin. What is a "caigin?" Simply this. These
people move their camp or place of abode frequently and when they do move to a new
place, it is necessary to clear the land in order to plant corn and camotes (sweet potatoes)
and they cut down the smaller trees and burn these around the larger ones, killing them, so
that they can plant their crops. The fires never spread in the tropical undergrowth of an
island like Mindoro, but the trees within the caigin are killed and crops are planted and
harvested. This land may be abandoned later on due to superstition, to a lack of game in
the neighborhood, to poor crops from exhausted fertility, or to a natural desire to move on.
Granting that the Manguianes do make caigins or clear lands in spots and then abandon
them for the more fertile lands, which every man knows to be just over the hills, we cannot
see that they are committing such a great abuse as to justify incarcerating them on a small
tract of land for incarceration it is and nothing less.

The second intimation or charge is that "they will become a heavy burden to the state and
on account of their ignorance they will commit crimes and make depredations, or if not
they will be subjected to involuntary servitude by those who want to abuse them." They
have never been a burden to the state and never will be. They have not committed crimes
and, when they do, let the law punish them." The authorities are anticipating too much
from these "peaceful, timid, primitive, semi-nomadic people." Their history does not
demonstrate that we must expect them to commit crimes and jail them to prevent the
possibility. But the Secretary says "they will be subjected to involuntary servitude by those
want to abuse them." Are they more liable to be subjected to involuntary servitude when
left free to roam their native hills and gain a livelihood as they have been accustomed to
for hundreds of years, than they will be if closely confined on a narrow reservation from
which they may not escape without facing a term in jail? Is not more likely that they will be
glad to exchange their "freedom" on a small reservation for the great boon of binding
themselves and their children to the more fortunate Christian Filipinos who will feed them
and clothe them in return of their services.?
It think it not only probable but almost a certainty that they will be all be subjected to
involuntary personal servitude if their freedom is limited as it has been. How will they live?
There may be persons who are willing to lend them money with which to buy food on the
promise that they will work for them. And if they accept the loan and do not work for the
lender we have another law on the statute books, Act No. 2098, into whose noose they run
their necks, and they may be fined not more than two hundred pesos or imprisonment for
not exceeding six months or both, and when the sentence expires they must again go into
debt or starve, and if they do not work will again go to jail, and this maybe repeated till
they are too old to work and are cast adrift.
The manguianes have committed no offenses and are charged with none. It does not
appear they were ever consulted about their reconcentration. It does not appear that they
had any hearing or were allowed to make any defense. It seems they were gathered here
and there whenever found by the authorities of the law and forcibly placed upon the
reservation, because they are "non-Christian," and because the provincial governor ordered
it. Let it be clear there is no discrimination because of religion. The term "non-Christian"
means one who is not a Christian Filipino, but it also means any of the so-called "wild" or
backward tribes of the Philippines. These non-Christian tribes are Moros, Igorrotes,
Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all together.
Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress in
civilization. The have beautiful fields reclaimed by hard labor they have herds of cattle
and horses and some few of them are well educated. Some of the non-Christians, like the
Aetas and the Negritos, are very low in the scale of civilization, but they are one and all
"non-Christians," as the term is used and understood in law and in fact.
All of them, according to the court's opinion under the present law, may be taken from their
homes and herded on a reservation at the instance of the provincial governor, with the
prior approval of the department head. To state such a monstrous proposition is to show
the wickedness and illegality of the section of the law under which these people are
restrained of their liberty. But it is argued that there is no probability of the department
head ever giving his approval to such a crime, but the fact that he can do it and has done it
in the present case in what makes the law unconstitutional. The arbitrary and
unrestricted power to do harm should be the measure by which a law's legality is tested
and not the probability of doing harm.
It has been said that this is a government of laws and not of men; that there is no
arbitrary body of individuals; that the constitutional principles upon which our
government and its institutions rest do not leave room for the play and action of
purely personal and arbitrary power, but that all in authority are guided and
limited by these provisions which the people have, the through the organic law,
declared shall be the measure and scope of all control exercised over them. In
particular the fourteenth amendment, and especially the equal protection clause,

thereof, forbids that the individual shall be subjected to any arbitrary exercise of
the powers of government; it was intended to prohibit, and does prohibit, any
arbitrary deprivation of life or liberty, or arbitrary spoliation of property.
As we have seen, a statute which makes a purely arbitrary or unreasonable
classification, or which singles out any particular individuals or class as the subject
of hostile and discriminating legislation, is clearly unconstitutional as being
opposed to the fourteenth amendment and especially to the equal protection
clause thereof. This is a plain case, and requires no further discussion. (Vol. 4,
Encyclopedia of U.S. Supreme Court Reports, p. 366.)
When we consider the nature and the theory of our institutions of government, the
principles upon which they are supposed to rest, and review the history of their
development, we are constrained to conclude that they do not mean to leave
room for the play and action of purely personal and arbitrary power. Sovereignty
itself is, of course, not subject to law, for its is the author and source of law; but in
our system, while sovereign powers are delegated to the agencies of government,
sovereignty itself remains with the people, by whom and for whom all government
exists and acts. And the law is the definition and limitation of power. It is, indeed,
quite true, that there must always be lodged somewhere, and in some person or
body, the authority of final decision; and, in many cases of mere administration
the responsibility is purely political, no appeal lying except to the ultimate tribunal
of the public judgment, exercised either in the pressure of opinion or by means of
the suffrage. But the fundamental rights to life, liberty, and the pursuit of
happiness, considered as individual possessions, are secured by those maxims of
constitutional law which are the monuments showing the victorious progress of
the race in securing to men the blessings of civilization under the reign of just and
equal laws, so that, in the famous language of Massachusetts Bill of Rights, the
Government of Commonwealth "may be a government of law and not of men." For
the very idea that one man may be compelled to hold his life, or the means of
living, or any material right essential to the enjoyment of life, at the mere will of
another, seems to be intolerable in any country where freedom prevails, as being
the essence of slavery itself. (Yick Wo vs. Hopkins, 118 U.S., 374.)
It is said that the present law is an old Act being substance Act No. 547 of the Philippine
Commission. But it has never been brought before this court for determination of its
constitutionality. No matter how beneficient the motives of the lawmakers if the lawmakers
if the law tends to deprive any man of life, liberty, or property without due process law, it is
void.
In may opinion the acts complained of which were taken in conformity with section 2145 of
the Administrative Code not only deprive these Manguianes of their liberty, without due
process of law, but will in all probability deprive them of their life, without due process of
law. History teaches that to take a semi-nomadic tribe from their native fastnesses and to
transfer them to the narrow confines of a reservation is to invite disease an suffering and
death. From my long experience in the Islands, I should say that it would be a crime of title
less magnitude to take the Ifugaos from their mountain homes where they have reclaimed
a wilderness and made it a land of beauty and fruitfulness and to transfer them to the more
fertile, unoccupied, malaria infested valleys which they look down upon from their fields
than it would be to order their decapitation en masse.
There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in
exactly the same category as the Manguianes. If the Manguianes may be so taken from
their native habitat and reconcentrated on a reservation in effect an open air jail then
so may the Ifugaos, so may the Tinguianes, who have made more progress than the
Ifugaos, and so may the Moros.

There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirtynine governors upon the prior approval of the head of the department, have the power
under this law to take the non-Christian inhabitants of their different provinces form their
homes and put them on a reservation for "their own good and the general good of the
Philippines," and the court will grant them no relief. These unfortunate citizens of the
Philippine Islands would hold their liberty, and their lives, may be, subject to the
unregulated discretion of the provincial governor.
And who would be safe?
After the reservation is once established might not a provincial governor decide that some
political enemy was a non-Christian, and that he would be safer on the reservation. No
matter what his education and culture, he could have no trial, he could make no defense,
the judge of the court might be in a distant province and not within reach, and the
provincial governor's fiat is final.
The case of the United States vs. Crook (Federal Cases 14891), cited in the majority
opinion, should be quoted at length. District Judge Dundy said:
During the fifteen years in which I have been engaged in administering the laws of
my country, I have never been called upon to hear or decide a case that appealed
so strongly to my sympathy as the one now under consideration. On the one side,
we have a few of the remnants of a once numerous and powerful, but now weak,
insignificant, unlettered, and generally despised race; and the other, we have the
representative of one of the most powerful, most enlightened, and most
christianized nations of modern times. On the one side, we have the
representatives of this wasted race coming into this national tribunal of ours,
asking for justice and liberty to enable them to adopt our boasted civilization, and
to pursue the arts of peace, which have made us great and happy as a nation; on
the other side, we have this magnificent, if not magnanimous, government,
resisting this application with the determination of sending these people back to
the country which is to them less desirable perpetual imprisonment in their own
native land. But I think it is creditable to the heart and mind of the brave and
distinguished officer who is made respondent herein to say that he has no sort of
sympathy in the business in which he is forced by his position to bear a part so
conspicuous; and, so far as I am individually concerned, I think it not improper to
say that, if the strongest possible sympathy could give the relators title to
freedom, they would have been restored to liberty the moment the arguments in
their behalf were closed. no examination or further thought would then have been
necessary or expedient. But in a country where liberty is regulated by law,
something more satisfactory and enduring than mere sympathy must furnish and
constitute the rule and basis of judicial action. It follows that this case must be
examined and decided on principles of law, and that unless the relators are
entitled to their discharge under the constitution or laws of the United States, or
some treaty, they must be remanded to the custody of the officer who caused
their arrest, to be returned to the Indian Territory which they left without the
consent of the government.
On the 8th of April, 1879, the relators Standing Bear and twenty-five others,
during the session of the court held at that time of Lincoln, presented their
petition, duly verified, praying for the allowance of a writ ofhabeas corpus and
their final discharged from custody thereunder.
The petition alleges, in substance, that the relators are Indians who have formerly
belonged to the Ponca tribe of Indians now located in the Indian Territory; that
they had some time previously withdrawn from the tribe, and completely severed
their tribal relations therewith, and had adopted the general habits of the whites,

and were then endeavoring to maintain themselves by their own exertions, and
without aid or assistance from the general government; that whilst they were thus
engaged, and without being guilty of violating any of the laws of the United
States, they were arrested and restrained of their liberty by order of the
respondent, George Crook.
The writ was issued and served on the respondent on the 8th day of April, and, the
distance between the place where the writ was made returnable and the place
where the relators were confined being more than twenty miles, ten days were
alloted in which to make return.
On the 18th of April the writ was returned, and the authority for the arrest and
detention is therein shown. The substance of the return to the writ, and the
additional statement since filed, is that the relators are individual members of,
and connected with, the Ponca Tribe of Indians; that they had fled or escaped from
a reservation situated in some place within the limits of the indian Territory had
departed therefrom without permission from the government; and, at the request
of the secretary of the interior, the general of the army had issued an order which
required the respondent to arrest and return the relators to their tribe in the Indian
Territory, and that, pursuant to the said order, he had caused the relators to be
arrested on the Omaha Indian reservation, and that they were in his custody for
the purpose of being returned to the Indian Territory.
It is claimed upon the one side, and denied upon the other, that the relators had
withdrawn and severed, for all time, their connection with the tribe to which they
belonged; and upon this point alone was there any testimony produced by either
party hereto. The other matter stated in the petition and the return to the writ are
conceded to be true; so that the questions to be determined are purely questions
of law.
On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca
tribe of Indians, by which a certain tract of country, north of the Niobrara river and
west of the Missouri, was set apart for the permanent home of the aid Indians, in
which the government agreed to protect them during their good behaviour. But
just when or how, or why, or under what circumstances, the Indians left their
reservation in Dakota and went to the Indian Territory does not appear.
xxx

xxx

xxx

A question of much greater importance remains for consideration, which, when

determined, will be decisive of this whole controversy. This relates to the right of
the government to arrest and hold the relators for a time, for the purpose of being
returned to a point in the Indian Territory from which it is alleged the Indians
escaped. I am not vain enough to think that I can do full justice to a question like
the one under consideration. But, as the mater furnishes so much valuable
material for discussion, and so much food for reflection, I shall try to present it as
viewed from my own standpoint, without reference to consequences or criticisms,
which, though not specially invited, will be sure to follow.
xxx

xxx

xxx

On the 15th day of August, 1876, congress passed the general Indian
appropriation bill, and in it we find a provision authorizing the secretary of the
interior to use $25,000 for the removal of the Poncas to the Indian Territory, and
providing them a home therein, with consent of the tribe. (19 Sta., 192.)

xxx

xxx

xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a
portion of the same, until two or three years ago, when they removed therefrom,
but whether by force or otherwise does not appear. At all event, we find a portion
of them, including the relators, located at some point in the Indian Territory. There,
the testimony seems to show, is where the trouble commenced. Standing Bear,
the principal witness, states that out of five hundred and eighty-one Indians who
went from the reservation in Dakota to the Indian Territory, one hundred and fiftyeight died within a year or so, and a great proportion of the others were sick and
disabled, caused, in a great measure, no doubt, from change of climate; and to
save himself and the survivors of his wasted family, and the feeble remnant of his
little band of followers, he determined to leave the Indian Territory and return to
his old home, where, to use his own language, "he might live and die in peace,
and be buried with his fathers." He also stated that he informed the agent of their
final purpose to leave, never to return, and that he and his followers had finally,
fully, and forever severed his and their connection with the Ponca tribe of Indians,
and had resolved to disband as a tribe, or band of Indians, and to cut loose from
the government, go to work, become self-sustaining, and adopt the habits and
customs of a higher civilization. To accomplish what would seem to be a desirable
and laudable purpose, all who were able to do so went to work to earn a living.
The Omaha Indians, who speak the same language, and with whom many of the
Poncas have long continued to intermarry, gave them employment and ground to
cultivate, so as to make them self-sustaining. And it was when at the Omaha

reservation, and when thus employed, that they were arrested by order of the
government, for the purpose of being taken back to the Indian Territory. They
claim to be unable to see the justice, or reason, or wisdom, or necessity, of
removing them by force from their own native plains and blood relations to a faroff country, in which they can see little but new-made graves opening for their
reception. The land from which they fled in fear has no attractions for them. The
love of home and native land was strong enough in the minds of these people to
induce them to brave every peril to return and live and die where they had been
reared. The bones of the dead son of Standing Bear were not to repose in the land
they hoped to be leaving forever, but were carefully preserved and protected and
formed a part of what was to them melancholy procession homeward. Such
instances of parental affections, and such love home and native land, may be
heathen in origin, but it seems to that they are not unlike Christian in principle.
And the court declared that the Indians were illegally held by authority of the United States
and in violation of their right to life, liberty, and the pursuit of happiness, and ordered their
release from custody.
This case is very similarly to the case of Standing Bear and others.
I think this Court should declare that section 2145 and 2759 of the Administrative Code of
1917 are unconstitutional, null and void, and that the petitioners are illegally restrained of
their liberty, and that they have been denied the equal protection of the law, and order the
respondents immediately to liberate all of the petitioners.