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Marcos vs. Manglapus

*
G.R. No. 88211.September 15, 1989.

FERDINAND E. MARCOS, IMELDA R. MARCOS,


FERDINAND R. MARCOS, JR., IRENE M. ARANETA,
IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ
and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners, vs. HONORABLE RAUL
MANGLAPUS, CATALINO 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.

Political Law Bill of Rights Liberty of Abode Right to


Travel The right to return to ones country is not among the rights
specifically guaranteed under the Bill of Rights, though it may
well be considered

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* EN BANC.

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as a generally accepted principle of international law which is part


of the law of the land.The right to return to ones country is not
among the rights specifically guaranteed in the Bill of Rights,
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which treats only of the liberty of abode and the right to travel,
but it is our wellconsidered view that the right to return may be
considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution]. However, it is distinct and separate
from the right to travel and enjoys a different protection under
the International Covenant of Civil and Political Rights,
i.e.,against being arbitrarily deprived thereof [Art. 12 (4)].

Same Same The constitutional guarantees invoked by


petitioners are not absolute and inflexible, they admit of limits and
must be adjusted to the requirements of equally important public
interests.The resolution of the problem is made difficult because
the persons who seek to return to the country are the deposed
dictator and his family at whose door the travails of the country
are laid and from whom billions of dollars believed to be illgotten
wealth are sought to be recovered. The constitutional guarantees
they invoke are neither absolute nor inflexible. For the exercise of
even the preferred freedoms of speech and of expression, although
couched in absolute terms, admits of limits and must be adjusted
to the requirements of equally important public interests
[Zaldivar v. Sandiganbayan, G.R. Nos. 79690707, October 7,
1988].

Same Separation of Powers Executive Powers The grant of


executive power means a grant of all executive powers.The 1987
Constitution has fully restored the separation of powers of the
three great branches of government. To recall the words of Justice
Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)],
the Constitution has blocked out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the
judicial departments of the government. [At 157]. Thus, the 1987
constitution explicitly provides that [t]he legislative power shall
be vested in the Congress of the Philippines [Art. VI, Sec. 1],
[t]he executive power shall be vested in the President of the
Philippines [Art. VII, Sec. 1], and [t]he judicial power shall be
vested in one Supreme Court and in such lower courts as may be
established by law [Art. VIII, Sec. 1]. These provisions not only
establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided
in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626, (1910)] pointed out a grant of the
legislative power means a

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grant of all legislative power and a grant of the judicial power


means a grant of all the judicial power which may be exercised
under the government. [At 631632.] If this can be said of the
legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of
the judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one
officialthe President.

Same Same Same The President The powers granted to the


President are not limited to those powers specifically enumerated
in the Constitution.It would not be accurate, however, to state
that executive power is the power to enforce the laws, for the
President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office
unless the Constitution itself withholds it. Furthermore, the
Constitution itself provides that the execution of the laws is only
one of the powers of the President. It also grants the President
other powers that do not involve the execution of any provision of
law, e.g.,his power over the countrys foreign relations. On these
premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specificpowers of the
President, it maintains intact what is traditionally considered as
within the scope of executive power. Corollarily, the powers of
the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.

Same Same Same Same CommanderInChief Powers: The


President can exercise CommanderInChief powers in order to
keep the peace and maintain public order and security even in the
absence of an emergency.More particularly, this case calls for
the exercise of the Presidents powers as protector of the peace.
[Rossiter, The American Presidency.] The power of the President
to keep the peace is not limited merely to exercising the
commanderinchief 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
today problems of maintaining peace and order and ensuring
domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way
disminished by the relative want of an emergency specified in the

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commanderinchief provision. For in making the President


commanderinchief the enumeration of powers that follow cannot
be said to exclude the Presidents exercising as Commanderin
Chief powers short of the calling of

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the armed forces, or suspending the privilege of the writ of habeas


corpusor declaring martial law, in order to keep the peace, and
maintain public order and security.

Same Same Same Same The President has the power under
the Constitution to bar the Marcoses from returning to our country.
That the President has the power under the Constitution to bar
the Marcoses from returning has been recognized by members of
the Legislature, and is manifested by the Resolution proposed in
the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the
Philippines as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence
to uncompromising respect for human rights under the
Constitution and our laws. [House Resolution No. 1342, Rollo, p.
321.] The Resolution does not question the Presidents power to
bar the Marcoses from returning to the Philippines, rather, it
appeals to the Presidents sense of compassion to allow a man to
come home to die in his country. What we are saying in effect is
that the request or demand of the Marcoses to be allowed to
return to the Philippines cannot be considered in the light solely
of the constitutional provisions guaranteeing liberty of abode and
the right to travel, subject to certain exceptions, or of case law
which clearly never contemplated situations even remotely
similar to the present one. It must be treated as a matter that is
appropriately addressed to those residual unstated powers of the
President which are implicit in and correlative to the paramount
duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to
the exercise of a broader discretion on the part of the President to
determine whether it must be granted or denied.

Same Same Same Power of Judicial Review Political


Question Doctrine The present Constitution limits resort to the
political question doctrine and broadens the scope of judicial
inquiry.Under the Constitution, judicial power includes the
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duty to determine whether or not there has been a grave abuse of


discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Goverment. [Art. VIII,
Sec. 1.] Given this wording, we cannot agree with the Solicitor
General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide. The present
Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court,
under previous constitutions, would have normally left to the
political departments to decide. But nonetheless there remain
issues beyond the Courts jurisdiction the determination of which
is exclusively for

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the President, for Congress or for the people themselves through a


plebiscite or referendum. We cannot, for example, question the
Presidents recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set
aside a presidential pardon though it may appear to us that the
beneficiary is totally undeserving of the grant. Nor can we amend
the Constitution under the guise of resolving a dispute brought
before us because the power is reserved to the people.

Same Same Same Same In the exercise of the power of


judicial review, the function of the court is merely to check, not to
supplant the Executive.There is nothing in the case before us
that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission
cited by petitioners show that the framers intended to widen the
scope of judicial review but they did not intend courts of justice to
settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or
by law is for the latter alone to decide. In this light, it would
appear clear that the second paragraph of Article VIII, Section 1
of the Constitution, defining judicial power, which specifically
empowers the courts to determine whether or not there has been
a grave abuse of discretion on the part of any branch or
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instrumentality of the government, incorporates in the


fundamental law the ruling in Lansang v. Garcia [G.R. No. L
33964, December 11, 1971, 42 SCRA 448] that: Article VII of the
[1935] Constitution vests in the Executive the power to suspend
the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under
the Constitution, is not absolute. What is more, it goes hand in
hand with the system of checks and balances, under which the
Executive is supreme, as regards the suspension of the privilege,
but only if and when he acts within the sphere alloted to him by
the Basic Law, and the authority to determine whether or not he
has so acted is vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme. In the exercise of
such authority, the function of the Court is merely to checknot
to supplantthe Executive, or to ascertain merely whether he has
gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the

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wisdom of his act. . . . [At 479480.]

Same Same Same Same The President did not act


arbitrarily, capriciously and whimsically in determining that the
return of the Marcoses poses a serious threat to national interest
and welfare, and in prohibiting their return.We find that from
the pleadings filed by the parties, from their oral arguments, and
the facts revealed during the briefing in chambers by the Chief of
Staff of the Armed Forces of the Philippines and the National
Security Adviser, wherein petitioners and respondents were
represented, there exist factual basis for the Presidents decision.
The Court cannot close its eyes to present realities and pretend
that the country is not besieged from within by a wellorganized
communist insurgency, a separatist movement in Mindanao,
rightist conspiracies to grab power, urban terrorism, the murder
with impunity of military men, police officers and civilian officials,
to mention only a few. The documented history of the efforts of
the Marcoses and their followers to destabilize the country, as
earlier narrated in thisponenciabolsters the conclusion that the
return of the Marcoses at this time would only exacerbate and
intensify the violence directed against the State and instigate
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more chaos. As divergent and discordant forces, the enemies of


the State may be contained. The military establishment has given
assurances that it could handle the threats posed by particular
groups. But it is the catalytic effect of the return of the Marcoses
that may prove to be the proverbial final straw that would break
the camels back. With these before her, the President cannot be
said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious
threat to the national interest and welfare and in prohibiting
their return.

FERNAN, C.J., Concurring

Political Law Executive Department Presidential Power


Presidential powers and prerogatives are not fixed and their limits
are dependent on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.
Presidential powers and prerogatives are not fixed but fluctuate.
They are not derived solely from a particular constitutional clause
or article or from an express statutory grant. Their limits are
likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law. History
and timehonored principles of constitutional law have conceded
to the Executive Branch certain powers in times of crisis or grave
and imperative national emergency. Many terms are applied to
these powers: residual, inherent, moral, implied,

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aggregate, emergency. Whatever they may be called, the fact


is that these powers exist, as they must if the governance function
of the Executive Branch is to be carried out effectively and
efficiently. It is in this context that the power of the President to
allow or disallow the Marcoses to return to the Philippines should
be viewed. By reason of its impact on national peace and order in
these admittedly critical times, said question cannot be
withdrawn from the competence of the Executive Branch to
decide.

GUTIERREZ, J., Dissenting

Political Law The President The Judiciary Power of


Judicial Review Political Question For a political question to
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exist, there must be in the Constitution a power exclusively vested


in the President or Congress, the exercise of which the courts
should not examine or prohibit. The issue as to the propriety of the
Presidents decision to prohibit the Marcoses from returning is not
a political question.The most often quoted definition of political
question was made by Justice William J. Brennan, Jr., who
penned the decision of the United States Supreme Court in Baker
v. Carr (369 US 186, 82 S. Ct. 691, L. Ed. 2d. 663 [1962]). The
ingredients of a political question as formulated in Baker v. Carr
are: It is apparent that several formulations which vary slightly
according to the settings in which the questions arise may
describe a political question, which identifies it as essentially a
function of the separation of powers. Prominent on the surface of
any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it or the
impossibility of deciding without an initial policy determination of
a kind clearly for nonjudicial discretion or the impossibility of a
courts undertaking independent resolution without expressing
lack of the respect due coordinate branches of government or an
unusual need for unquestioning adherence to a political decision
already made or potentiality of embarassment from multifarious
pronouncements by various departments on one question. For a
political question to exist, there must be in the Constitution a
power vested exclusively in the President or Congress, the
exercise of which the court should not examine or prohibit. A
claim of plenary or inherent power against a civil right which
claim is not found in a specific provision is dangerous. Neither
should we validate a roving commission allowing public officials to
strike where they please and to override everything which to
them represents evil. The entire Government is bound by the rule
of law. The respondents have not pointed to any provision of the
Constitution which commits or vests the determi

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nation of the question raised to us solely in the President.

Same Same Bill of Rights Liberty of Abode The liberty of


abode and of changing the same within the limits prescribed by
law may be impaired only upon a lawful order of the court, not of
an executive officer, not even the President.Section 6 of the Bill
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of Rights states categorically that the liberty of abode and of


changing the same within the limits prescribed by law may be
impaired only upon a lawful order of a court. Not by an executive
officer. Not even by the President. Section 6 further provides that
the right to travel, and this obviously includes the right to travel
out of or back into the Philippines, cannot be impaired except in
the interest of national security, public safety, or public health, as
may be provided by law.

Same Same Same Same The Court has the last word when
it comes to Constitutional liberties.There is also no disrespect
for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation
and defense of which all of us in Government, the President and
Congress included, are sworn to participate. Significantly, the
President herself has stated that the Court has the last word
when it comes to constitutional liberties and that she would abide
by our decision.

Same The Judiciary Judicial Power Political Questions The


constitutional provision defining judicial power was enacted to
preclude the Court from using the political question doctrine as a
means to avoid controversial issues.The second paragraph of
Section 1, Article VIII of the Constitution provides: Judicial
power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government. This new provision was enacted to preclude this
Court from using the political question doctrine as a means to
avoid having to make decisions simply because they are too
controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not
enforced. The framers of the Constitution believed that the free
use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear
that it was extravagantly extending judicial power in the cases
where it refused to examine and strike down an exercise of
authoritarian power. Parenthetically, at least two of the
respondents and their counsel were among the most vigorous

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critics of Mr. Marcos (the main petitioner) and his use of the
political question doctrine. The Constitution was accordingly
amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to
the political question doctrine. We are compelled to decide what
would have been nonjusticeable under our decisions interpreting
earlier fundamental charters. This is not to state that there can
be no more political questions which we may refuse to resolve.
There are still some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue before
us is not one of them.

Same Same Bill of Rights Liberty of Abode Right to Travel


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

Same Same Same Opposition to the government, no matter


how odious and disgusting is not sufficient to deny or ignore a
constitutional right.It is indeed regrettable that some followers
of the former President are conducting a campaign to sow discord
and to divide the nation. Opposition to the government no matter
how odious or disgusting is, however, insufficient ground to ignore
a constitutional guarantee.

Same Same Same Same Denial of travel papers is not


among the powers granted to the government There is no law
prescribing exile to a foreign land as a penalty for hurting the
nation.Of course, the Government can act. It can have Mr.
Marcos arrested and tried in court. The Government has more
than ample powers under existing law to deal with a person who

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transgresses the peace and imperils public safety. But the denial
of travel papers is not one of those powers

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because the Bill of Rights says so. There is no law prescribing


exile in a foreign land as the penalty for hurting the Nation.

CRUZ, J., Dissenting

Political Law Bill of Rights Petitioner, as a Filipino, is


entitled to return to or live or die in his own country.It is my
belief that the petitioner, as a citizen of the Philippines, is
entitled to return to and liveand diein his own country. I say
this with a heavy heart but say it nonetheless. That conviction is
not diminished one whit simply because many believe Marcos to
be beneath contempt and undeserving of the very liberties he
flouted when he was the absolute ruler of this land.

Same Same Same The government failed dismally to show


that the return of Marcos, dead or alive, would pose a threat to
national security.In about two hours of briefing, the government
failed dismally to show that the return of Marcos dead or alive
would pose a threat to the national security as it had alleged. The
fears expressed by its representatives were based on mere
conjectures of political and economic destabilization without any
single piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that
there exist factual bases for the Presidents decision to bar
Marcoss return. That is not my recollection of the impressions of
the Court after that hearing.

Same Same Same Marcos is entitled to the same right to


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

PARAS, J., Dissenting


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Political Law Bill of Rights Right to Travel The former


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

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of national safety and national security. Our Armed Forces have


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

PADILLA, J., Dissenting

Political Law Bill of Rights Right to Travel Police Power


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

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if founded on police power, cannot be absolute and unlimited


under all circumstances, much less, can it be arbitrary and
irrational.

Same Same Same The government failed to present


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

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than factual. Moreover, such apprehensions even if translated


into realities, would be under control, as admitted to the Court
by said military authorities, given the resources and facilities at
the command of government. But, above all, the Filipino people
themselves, in my opinion, will know how to handle any situation
brought about by a political recognition of Mr. Marcos right to
return, and his actual return, to this country. The Court, in short,
should not accept respondents general apprehensions, concerns
and perceptions at face value, in the light of a countervailing and
even irresistible, specific, clear, demandable, and enforceable
right asserted by a Filipino.

SARMIENTO, J., Dissenting

Political Law Bill of Rights Right to Travel The right to


return to ones own country cannot be distinguished from the right
to travel and freedom of abode.I also find quite strained what
the majority would have as the real issues facing the Court:
The right to return to ones country, pitted against the right of
travel and freedom of abode, and their supposed distinctions
under international law, as if such distinctions under
international law, in truth and in fact exist. There is only one
right involved here, whether under municipal or international
law: the right of travel, whether within ones own country, or to
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another, and the right to return thereto. The Constitution itself


makes no distinctions let, then, no one make a distinction. Ubi
lex non distinguit, nec nos distinguere debemus.

Same The President Bill of Rights While the President may


exercise powers not expressly granted by the Constitution but may
necessarily be implied therefrom, the latter must yield to the
paramountcy of the Bill of Rights.While the Chief Executive
exercises powers not found expressly in the Charter, but has them
by constitutional implication, the latter must yield to the
paramountcy of the Bill of Rights. According to Fernando: A
regime of constitutionalism is thus unthinkable without an
assurance of the primacy of a bill of rights. Precisely a
constitution exists to assure that in the discharge of the
governmental functions, the dignity that is the birthright of every
human being is duly safeguarded. To be true to its primordial
aim, a constitution must lay down the boundaries beyond which
lies forbidden territory for state action. My brethren have not
demonstrated, to my satisfaction, how the President may override
the direct mandate of the fundamental law. It will not suffice, so I
submit, to say that the Presidents plenitude of powers, as
provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands.
Clearly, so I borrow J.B.L. Reyes, in his own right, a

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titan in the field of public law, this argument . . . rests . . . not


upon the text of the [Constitution] . . . but upon a mere inference
therefrom, For if it were, indeed, the intent of the Charter to
create an exception, that is, by Presidential action, to the right of
travel or liberty of abode and of changing the sameother than
what it explicitly says already (limits prescribed by law or upon
lawful order of the court)the Charter could have specifically
declared so. As it is, the lone deterrents to the right in question
are: (1) decree of statute, or (2) lawful judicial mandate. Had the
Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the
Constitution, as far as limits to the said right are concerned, come
full circle: Limits by legislative, judicial, and executive processes.

Same Same Same Same Same Under the new Constitution,


the right to travel may be impaired only within the limits provided
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by law The President has been divested of the implied power to


impair the right to travel.Obviously, none of the twin legal bars
exist. There is no law banning the Marcoses from the country
neither is there any court decree banishing him from Philippine
territory. It is to be noted that under the 1973 Constitution, the
right to travel is worded as follows: Sec. 5. The liberty of abode
and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security,
public safety, or public health. Under this provision, the right
may be abated: (1) upon a lawful court order, or (2) when
necessary in the interest of national security, public safety, or
public health. Arguably, the provision enabled the Chief
Executive (Marcos) to moderate movement of citizens, which,
Bernas says, justified such practices as hamletting, forced
relocations, or the establishment of freefire zones. The new
Constitution, however, so it clearly appears, has divested the
Executives implied power. And, as it so appears, the right may be
impaired only within the limits provided by law. The President
is out of the picture.

Same Same Same Same The determination of whether


Marcos return poses a threat to national security should not be left
solely to the Chief Executive, the Court itself must be satisfied that
the threat is not only clear but also present.Admittedly, the
Chief Executive is the sole judge of all matters affecting national
security and foreign affairs the Bill of Rightsprecisely, a form
of check against excesses of officialdomis, in this case, a
formidable barrier against Presidential action. (Even on matters
of State security, this Constitution prescribes limits to Executives
powers as commanderinchief.) Second: Assuming, ex hypothesi,
that the President may legally act, the

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question that emerges is: Has it been proved that Marcos, or his
return, will, in fact, interpose a threat to the national security,
public safety, or public health? What appears in the records are
vehement insistences that Marcos does pose a threat to the
national goodand yet, at the same time, we have persistent
claims, made by the military top brass during the lengthy closed
door hearing on July 25, 1989, that this Government will not fall
should the former first family in exile step on Philippine soil.
Which is which? At any rate, it is my opinion that we can not
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leave that determination solely to the Chief Executive. The Court


itself must be content that the threat is not only clear, but more
so, present.

CORTS, J.:

Before the Court is a controversy of grave national


importance. While ostensibly only legal issues are involved,
the Courts decision in this case would undeniably have a
profound effect on the political, economic and other aspects
of national life.
We recall that in February 1986, Ferdinand E. Marcos
was deposed from the presidency via the nonviolent
people power revolution and forced into exile. In his
stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension
to and consolidation of power have not been unchallenged.
The failed Manila Hotel coup in 1986 led by political
leaders of Mr. Marcos, the takeover of television station
Channel 7 by rebel troops led by Col. Canlas with the
support of Marcos loyalists and the unsuccessful plot of
the Marcos spouses to surreptitiously return from Hawaii
with mercenaries aboard an aircraft chartered by a
Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir
trouble even from afar and to the fanaticism and blind
loyalty of their followers in the country. The ratification of
the 1987 Constitution enshrined the victory of people
power and also clearly reinforced the constitutional
moorings of Mrs. Aquinos presidency. This did not,
however, stop bloody challenges to the government. On
August 28, 1987, Col. Gregorio Honasan, one of the major
players in the February Revolution, led a failed coup that
left scores of people, both combatants and civilians, dead.
There were several other armed sorties of lesser
significance, but the message they con

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Marcos vs. Manglapus

veyed was the samea split in the ranks of the military


establishment that threatened civilian supremacy over the
military and brought to the fore the realization that
civilian government could be at the mercy of a fractious
military.

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But the armed threats to the Government were not only


found in misguided elements in the military establishment
and among rabid followers of Mr. Marcos. There were also
the communist insurgency and the secessionist movement
in Mindanao which gained ground during the rule of Mr.
Marcos, to the extent that the communists have set up a
parallel government of their own in the areas they
effectively control while the separatists are virtually free to
move about in armed bands. There has been no let up in
these groups determination to wrest power from the
government. Not only through resort to arms but also
through the use of propaganda have they been successful in
creating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The
accumulated foreign debt and the plunder of the nation
attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years
after Mrs. Aquino assumed office, have yet to show
concrete results in alleviating the poverty of the masses,
while the recovery of the illgotten wealth of the Marcoses
has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish
to return to the Philippines to die. But Mrs. Aquino,
considering the dire consequences to the nation of his
return at a time when the stability of government is
threatened from various directions and the economy is just
beginning to rise and move forward, has stood firmly on the
decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for


the case of a dictator forced out of office and into exile after
causing twenty years of political, economic and social havoc
in the country and who within the short space of three
years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the
Court to order the respondents to issue travel documents to
Mr. Marcos

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Marcos vs. Manglapus

and the immediate members of his family and to enjoin the


implementation of the Presidents decision to bar their

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return to the Philippines.

The Issue

The issue is basically one of power: whether or not, in the


exercise of the powers granted by the Constitution, the
President may prohibit the Marcoses from returning to the
Philippines.
According to the petitioners, the resolution of the case
would depend on the resolution of the following issues:

1. Does the President have the power to bar the


return of former President Marcos and his family to
the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar


former President Marcos and his family from
returning to the Philippines, in the interest of
national security, public safety or public health

a. Has the President made a finding that the return of


former President Marcos and his family to the
Philippines is a clear and present danger to
national security, public safety or public health?
b. Assuming that she has made that finding,

(1) Have the requirements of due process been


complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be
dispensed with, has the Presidents decision,
including the grounds upon which it was based,
been made known to petitioners so that they may
controvert the same?

c. Is the Presidents determination that the return of


former President Marcos and his family to the
Philippines is a clear and present danger to
national security, public safety, or public health a
political question?
d. Assuming that the Court may inquire as to whether
the return of former President Marcos and his
family is a clear and present danger to national

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security, public safety, or public health, have


respondents established such fact?

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3.Have the respondents, therefore, in implementing


the Presidents decision to bar the return of former
President Marcos and his family, acted and would
be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in
performing any act which would effectively bar the
return of former President Marcos and his family to
the Philippines? [Memorandum for Petitioners, pp.
57 Rollo, pp. 234236.]

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
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.

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


own, and to return to his country.

Likewise, the International Covenant on Civil and Political


Rights, which had been ratified by the Philippines,
provides:

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Marcos vs. Manglapus

Article 12

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


within that territory, have the right to liberty of
movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his
own.
3) The abovementioned 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 nonjusticiable. 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

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collide with the more primordial and transcendental right of the


State to security and safety of its nationals, the question becomes
political and this Honorable Court can not consider it.

There are thus gradations to the question, to wit:

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


return to the Philippines and reestablish their residence here?
This is clearly a justiciable question which this Honorable Court
can decide.

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Marcos vs. Manglapus

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.
911 Rollo, pp. 297299.]

Respondents argue for the primacy of the right of the State


to national security over individual rights. In support
thereof, they cite Article II of the Constitution, to wit:

Section 4.The prime duty of the Government is to serve and


protect the people. The Government may call upon the people to
defend the State and, in the fulfillment thereof, all citizens may
be required, under conditions provided by law, to render personal,
military, or civil service.
Section 5.The maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the
blessings of democracy.

Respondents also point out that the decision to ban Mr.


Marcos and his family from returning to the Philippines for
reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican
Republic, Anastacio Somoza, Jr. of Nicaragua, Jorge Ubico
of Guatemala, Fulgencio Batista of Cuba, King Farouk of

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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. 2632 Rollo, pp. 314
319.]
The parties are in agreement that the underlying issue
is one of the scope of presidential power and its limits. We,
however, view this issue in a different light. Although we
give due weight to the parties formulation of the issues, we
are not bound by its
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narrow confines in arriving at a solution to the controversy.


At the outset, we must state that it would not do to view
the case within the confines of the right to travel and the
import of the decisions of the U.S. Supreme Court in the
leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt. 1113,
2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt.
2766, 69 L Ed. 2d 640) which affirmed the right to travel
and recognized exceptions to the exercise thereof,
respectively.
It must be emphasized that the individual right involved
is not the right to travel from the Philippines to other
countries or within the Philippines. These are what the
right to travel would normally connote. Essentially, the
right involved is the right to return to ones country, a
totally distinct right under international law, independent
from although related to the right to travel. Thus, the
Universal Declaration of Humans Rights and the
International Covenant on Civil and Political Rights treat
the right to freedom of movement and abode within the
territory of a state, the right to leave a country, and the
right to enter ones country as separate and distinct rights.
The Declaration speaks of the right to freedom of
movement and residence within the borders of each state
[Art. 13(1)] separately from the right to leave any country,
including his own, and to return to his country. [Art.
13(2).] On the other hand, the Covenant guarantees the
right to liberty of movement and freedom to choose his
residence [Art. 12(1)] and the right to be free to leave any
country, including his own. [Art. 12(2)] which rights may
be restricted by such laws as are necessary to protect
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national security, public order, public health or morals or


the separate rights and freedoms of others. [Art. 12(3)] as
distinguished from the right to enter his own country of
which one cannot be arbitrarily deprived. [Art. 12(4).] It
would therefore be inappropriate to construe the
limitations to the right to return to ones country in the
same context as those pertaining to the liberty of abode and
the right to travel.
The right to return to ones country is not among the
rights specifically guaranteed in the Bill of Rights, which
treats only of the liberty of abode and the right to travel,
but it is our wellconsidered view that the right to return
may be considered, as a generally accepted principle of
international law and, under our Constitution, is part of
the law of the land [Art. II, Sec. 2 of

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Marcos vs. Manglapus

the Constitution.] However, it is distinct and separate from


the right to travel and enjoys a different protection under
the International Covenant of Civil and Political Rights,
i.e.,against being arbitrarily deprived thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig,which
refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not
determinative of this case and are only tangentially
material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The
issue before the Court is novel and without precedent in
Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well
debated issue of whether or not there can be limitations on
the right to travel in the absence of legislation to that effect
is rendered unnecessary. An appropriate case for its
resolution will have to be awaited.
Having clarified the substance of the legal issue, we find
now a need to explain the methodology for its resolution.
Our resolution of the issue will involve a twotiered
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
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when she determined that the return of the Marcoses to


the Philippines poses a serious threat to national interest
and welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of


powers of the three great branches of government. To recall
the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], the Constitution has
blocked but with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial
departments of the government. [At 157.] Thus, the 1987
Constitution explicitly provides that [t]he legislative
power shall be vested in the Congress of the Philippines
[Art. VI, Sec. 1], [t]he executive power shall be
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Marcos vs. Manglapus

vested in the President of the Philippines [Art. VII, Sec. 1],


and [t]he judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by
law [Art. VIII, Sec. 1.] These provisions not only establish
a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary
legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the
Supreme Court in Ocampo v. Cabangis [15 Phil. 626
(1910)] pointed out a grant of the legislative power means
a grant of all legislative power and a grant of the judicial
power means a grant of all the judicial power which may be
exercised under the government. [At 631632.] If this can
be said of the legislative power which is exercised by two
chambers with a combined membership of more than two
hundred members and of the judicial power which is vested
in a hierarchy of courts, it can equally be said of the
executive power which is vested in one officialthe
President.
As stated above, the Constitution provides that [t]he
executive power shall be vested in the President of the
Philippines. [Art. VII, Sec. 1]. However, it does not define
what is meant by executive power although in the same
article it touches on the exercise of certain powers by the
President, i.e.,the power of control over all executive

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departments, bureaus and offices, the power to execute the


laws, the appointing power, the powers under the
commanderinchief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty
with the concurrence of Congress, the power to contract or
guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget
to Congress, and the power to address Congress [Art. VII,
Secs. 1423].
The inevitable question then arises: by enumerating
certain powers of the President did the framers of the
Constitution intend that the President shall exercise those
specific powers and no other? Are these enumerated powers
the breadth and scope of executive power? Petitioners
advance the view that the Presidents powers are limited to
those specifically enumerated in the 1987 Constitution.
Thus, they assert: The President has enumerated powers,
and what is not enumerated is impliedly denied to her.
Inclusio unius est exclusio alterius.

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[Memorandum for Petitioners, p. 4 Rollo p. 233.] This


argument brings to mind the institution of** the U.S.
Presidency after which ours is legally patterned.
Corwin, in his monumental volume on the President of
the United States grappled with the same problem. He
said:

Article II is the most loosely drawn chapter of the Constitution.


To those who think that a constitution ought to settle everything
beforehand it should be a nightmare by the same token, to those
who think that constitution makers ought to leave considerable
leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article II in its opening
words: The executive power shall be vested in a President of the
United States of America. x x x. [The President: Office and
Powers, 17871957,pp. 34.]

Reviewing how the powers of the U.S. President were


exercised by the different persons who held the office from
Washington to the early 1900s, and the swing from the
presidency by commission to Lincolns dictatorship, he
concluded that what the presidency is at any particular

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moment depends in important measure on who is


President. [At 30.]
This view is shared by Schlesinger, who wrote in The
Imperial Presidency:

For the American Presidency was a peculiarly personal


institution. It remained, of course, an agency of government
subject to unvarying demands and duties no matter who was
President. But, more than most agencies of government, it
changed shape, intensity and ethos according to the man in
charge. Each Presidents distinctive temperament and character,
his values, standards, style, his habits, expectations,
idiosyncrasies, compulsions, phobias recast the White

_______________

** The Philippine presidency under the 1935 Constitution was patterned in


large measure after the American presidency. But at the outset, it must be pointed
out that the Philippine government established under the constitutions of 1935,
1973 and 1987 is a unitary government with general powers unlike that of the
United States which is a federal government with limited and enumerated powers.
Even so, the powers of the president of the United States have through the years
grown, developed and taken shape as students of that presidency have
demonstrated.

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House and pervaded the entire government. The executive


branch, said Clark Clifford, was a chameleon, taking its color
from the character and personality of the President. The thrust of
the office, its impact on the constitutional order, therefore altered
from President to President. Above all, the way each President
understood it as his personal obligation to inform and involve the
Congress, to earn and hold the confidence of the electorate and to
render an accounting to the nation and posterity determined
whether he strengthened or weakened the constitutional order.
[At 212213.]

We do not say that the presidency is what Mrs. Aquino


says it is or what she does but, rather, that the
consideration of tradition and the development of
presidential power under the different constitutions are
essential for a complete understanding of the extent of and
limitations to the Presidents powers under the 1987
Constitution. The 1935 Constitution created a strong
President with explicitly broader powers than the U.S.
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President. The 1973 Constitution attempted to modify the


system of government into the parliamentary type, with
the President as a mere figurehead, but through numerous
amendments, the President became even more powerful, to
the point that he was also the de facto Legislature. The
1987 Constitution, however, brought back the presidential
system of government and restored the separation of
legislative, executive and judicial powers by their actual
distribution among three distinct branches of government
with provision for checks and balances.
It would not be accurate, however, to state that
executive power is the power to enforce the laws, for the
President is head of state as well as head of government
and whatever powers inhere in such positions pertain to
the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the
President. It also grants the President other powers that do
not involve the execution of any provision of law, e.g.,his
power over the countrys foreign relations.
On these premises, we hold the view that although the
1987 Constitution imposes limitations on the exercise of
specific powers of the President, it maintains intact what is
traditionally considered as within the scope of executive
power. Corollarily, the powers of the President cannot be
said to be limited only to the specific powers enumerated in
the Constitution. In
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other words, executive power is more than the sum of


specific powers so enumerated.
It has been advanced that whatever power inherent in
the government that is neither legislative nor judicial has
to be executive. Thus, in the landmark decision of Springer
v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the GovernorGeneral
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
GovernorGeneral to do so, said:

... Here the members of the legislature who constitute a majority


of the board and committee respectively, are not charged with

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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 202203 italics supplied.]

We are not unmindful of Justice Holmes strong dissent.


But in his enduring words of dissent we find reinforcement
for the view that it would indeed be a folly to construe the
powers of a branch of government to embrace only what are
specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and


divide fields of black and white. Even the more specific of them
are found to terminate in a penumbra shading gradually from one
extreme to the other. x x x.
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
210211.]

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The Power Involved

The Constitution declares among the guiding principles


that [t]he prime duty of the Government is to serve and
protect the people and that [t]he maintenance of peace
and order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.
[Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the
maintenance of peace and order, the protection of life,
liberty and property, and the promotion of the general
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welfare are essentially ideals to guide governmental action.


But such does not mean that they are empty words. Thus,
in the exercise of presidential functions, in drawing a plan
of government, and in directing implementing action for
these plans, or from another point of view, in making any
decision as President of the Republic, the President has to
consider these principles, among other things, and adhere
to them.
Faced with the problem of whether or not the time is
right to allow the Marcoses to return to the Philippines, the
President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision.
More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare
and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation
of power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government
exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution
reminds everyone that [s]overeignty resides in the people
and all government authority emanates from them. [Art.
II, Sec. 1.]
The resolution of the problem is made difficult because
the persons who seek to return to the country are the
deposed dictator and his family at whose door the travails
of the country are laid and from whom billions of dollars
believed to be illgotten wealth are sought to be recovered.
The constitutional guarantees they invoke are neither
absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and of
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expression, although couched in absolute terms, admits of


limits and must be adjusted to the requirements of equally
important public interests [Zaldivar v. Sandiganbayan,
G.R. Nos. 79690707, October 7, 1988].
To the President, the problem is one of balancing the
general welfare and the common good against the exercise
of rights of certain individuals. The power involved is the
Presidents residual power to protect the general welfare of
the people. It is founded on the duty of the President, as
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steward of the people. To paraphrase Theodore Roosevelt,


it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws
that the needs of the nation demand [SeeCorwin,supra,at
153]. It is a power borne by the Presidents duty to preserve
and defend the Constitution. It also may be viewed as a
power implicit in the Presidents duty to take care that the
laws are faithfully executed [seeHyman, The American
President, where the author advances the view that an
allowance of discretionary power is unavoidable in any
government and is best lodged in the President].
More particularly, this case calls for the exercise of the
Presidents powers as protector of the peace. [Rossiter, The
American Presidency]. The power of the President to keep
the peace is not limited merely to exercising the
commanderinchief 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 daytoday 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 commanderinchief provision. For in
making the President commanderinchief the enumeration
of powers that follow cannot be said to exclude the
Presidents exercising as CommanderinChief powers
short of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial
law, in order to keep the peace, and maintain public order
and security.
That the President has the power under the
Constitution to bar the Marcoses from returning has been
recognized by mem
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bers of the Legislature, and is manifested by the Resolution


proposed in the House of Representatives and signed by
103 of its members urging the President to allow Mr.
Marcos to return to the Philippines as a genuine unselfish
gesture for true national reconciliation and as irrevocable
proof of our collective adherence to uncompromising respect
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for human rights under the Constitution and our laws.


[House Resolution No. 1342, Rollo, p. 321.] The Resolution
does not question the Presidents power to bar the
Marcoses from returning to the Philippines, rather, it
appeals to the Presidents sense of compassion to allow a
man to come home to die in his country.
What we are saying in effect is that the request or
demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and
the right to travel, subject to certain exceptions, or of case
law which clearly never contemplated situations even
remotely similar to the present one. It must be treated as a
matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context,
such request or demand should submit to the exercise of a
broader discretion on the part of the President to determine
whether it must be granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty to


determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
[Art. VIII, Sec. 1.] Given this wording, we cannot agree
with the Solicitor General that the issue constitutes a
political question which is beyond the jurisdiction of the
Court to decide.
The present Constitution limits resort to the political
question doctrine and broadens the scope of judicial inquiry
into areas which the Court, under previous constitutions,
would have normally left to the political departments to
decide. But nonetheless there remain issues beyond the
Courts jurisdiction the determination of which is
exclusively for the President, for

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Congress or for the people themselves through a plebiscite


or referendum. We cannot, for example, question the
Presidents recognition of a foreign government, no matter

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how premature or improvident such action may appear. We


cannot set aside a presidential pardon though it may
appear to us that the beneficiary is totally undeserving of
the grant. Nor can we amend the Constitution under the
guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our
determination thereof on the political question doctrine.
The deliberations of the Constitutional Commission cited
by petitioners show that the framers intended to widen the
scope of judicial review but they did not intend courts of
justice to settle all actual controversies before them. When
political questions are involved, the Constitution limits the
determination to whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will
not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the
latter alone to decide. In this light, it would appear clear
that the second paragraph of Article VIII, Section 1 of the
Constitution, defining judicial power, which specifically
empowers the courts to determine whether or not there has
been a grave abuse of discretion on the part of any branch
or instrumentality of the government, incorporates in the
fundamental law the ruling in Lansang v. Garcia [G.R. No.
L33964, December 11, 1971, 42 SCRA 448] that:

Article VII of the [1935] Constitution vests in the Executive the


power to suspend the privilege of the writ of habeas corpus under
specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is
supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it
goes hand in hand with the system of checks and balances, under
which the Executive is supreme, as regards the suspension of the
privilege, but only if and when he acts within the sphere alloted to
him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which,
in this respect, is, in turn, constitutionally supreme.

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Marcos vs. Manglapus

In the exercise of such authority, the function of the Court is


merely to checknot to supplantthe Executive, or to ascertain
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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 479480.]

Accordingly, the question for the Court to determine is


whether or not there exist factual bases for the President to
conclude that it was in the national interest to bar the
return of the Marcoses to the Philippines. If such
postulates do exist, it cannot be said that she has acted, or
acts, arbitrarily or that she has gravely abused her
discretion in deciding to bar their return.
We find that from the pleadings filed by the parties,
from their oral arguments, and the facts revealed during
the briefing in chambers by the Chief of Staff of the Armed
Forces of the Philippines and the National Security
Adviser, wherein petitioners and respondents were
represented, there exist factual bases for the Presidents
decision.
The Court cannot close its eyes to present realities and
pretend that the country is not besieged from within by a
wellorganized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab
power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to
mention only a few. The documented history of the efforts
of the Marcoses and their followers to destabilize the
country, as earlier narrated in this ponencia bolsters the
conclusion that the return of the Marcoses at this time
would only exacerbate and intensify the violence directed
against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the
State may be contained. The military establishment has
given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return
of the Marcoses that may prove to be the proverbial final
straw that would break the camels back.
With these before her, the President cannot be said to
have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a
serious threat to the national interest and welfare and in
prohibiting their return.

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It will not do to argue that if the return of the Marcoses to


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


SO ORDERED.

Narvasa, MelencioHerrera, Gancayco, Grio


Aquino, Medialdea and Regalado, JJ., concur.
Fernan, C.J., See separate concurring opinion.
Gutierrez, Jr., Cruz, Padilla and Sarmiento, JJ.,
See dissent.
Paras, J., I dissent in a separate opinion.
Feliciano, J., On leavevoted to grant petition
when the case was deliberated upon.
Bidin, J., I join in the dissent of Mr. Justice Hugo
Gutierrez, Jr.

FERNAN, C.J., Concurring Opinion

The threats to national security and public order are real


the mounting Communist insurgency, a simmering
separatist movement, a restive studentry, widespread labor
disputes, militant farmer groups. x x x. Each of these
threats is an explosive ingredient in a steaming
1
cauldron
which could blow up if not handled properly.
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 wellwritten
ponenciaof Mme. Justice Irene R. Corts.
Presidential powers and prerogatives are not fixed but
fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory
grant. Their limits are likely to depend on the imperatives
of events and contemporary imponderables rather than on
abstract theories of law. History and timehonored
principles of constitutional law have

_______________

1 From the speech Restrictions on Human RightsStates of


Emergency, National Security, Public Safety and Public Order delivered
at the Lawasia Seminar on Human Rights, Today and Tomorrow: The
Role of Human Rights Commissions and Other Organs, at the Manila
Hotel on August 27, 1988.

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conceded to the Executive Branch certain powers in times


of crisis or grave and imperative national emergency. Many
terms are applied to these powers: residual, inherent,
moral, implied, aggregate, emergency. Whatever
they may be called, the fact is that these powers exist, as
they must if the governance function of the Executive
Branch is to be carried out effectively and efficiently. It is
in this context that the power of the President to allow or
disallow the Marcoses to return to the Philippines should
be viewed. By reason of its impact on national peace and
order in these admittedly critical times, said question
cannot be withdrawn from the competence of the Executive
Branch to decide.
And indeed, the return of the deposed President, his
wife and children cannot but pose a clear and present
danger to public order and safety. One needs only to recall
the series of destabilizing actions attempted by the so
called Marcos loyalists as well as the ultrarightist groups
during the EDSA Revolutions aftermath to realize this.
The most publicized of these offensives is the Manila Hotel
incident which occurred barely five (5) months after the
Peoples Power Revolution. Around 10,000 Marcos
supporters, backed by 300 loyalist soldiers led by Brigadier
General Jose Zumel and Lt. Col. Reynaldo Cabauatan
converged at the Manila Hotel to witness the oathtaking of
Arturo Tolentino as acting president of the Philippines.
The public disorder and peril to life and limb of the citizens
engendered by this event subsided only upon the eventual
surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor,
Horseshoe Drive and Camp Aguinaldo incidents. Military
rebels waged simultaneous offensives in different parts of
Metro Manila and Sangley Point in Cavite. A hundred
rebel soldiers took over Channel 7 and its radio station
DZBB. About 74 soldier rebels attacked Villamor Air Base,
while another group struck at Sangley Point in Cavite and
held the 15th Air Force Strike wing commander and his
deputy hostage. Troops on board several vehicles attempted
to enter Gate 1 of Camp Aguinaldo even as another batch
of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April,
1987 by enlisted personnel who forced their way through
Gate 1 of Fort Bonifacio. They stormed into the army
stockade but having
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failed to convince their incarcerated members to unite in


their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt
which almost toppled the Aquino Government? Launched
not by Marcos loyalists, but by another ultrarightist 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 socalled Black Forest Commando were
able to cart away highpowered 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 linkup of
Marcos military loyalist troops with the group of Honasan.
The pseudo people power movement was neutralized thru
checkpoints set up by the authorities along major road
arteries where the members were arrested or forced to turn
back.
While not all of these disruptive incidents may be traced
directly to the Marcoses, their occurrence militates heavily
against the wisdom of allowing the Marcoses return. Not
only will the Marcoses presence embolden their followers
toward similar actions, but any such action would be seized
upon as an opportunity by other enemies of the State, such
as the Communist Party of the Philippines and the NPAs,
the Muslim secessionists and extreme rightists of the RAM,
to wage an offensive against the government. Certainly,
the state through its executive branch has the power, nay,
the responsibility and obligation, to prevent a grave and
serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to
allow the Marcoses to return to the Philippines is one
factor, which albeit, at first blush appears to be extra legal,
constitutes a valid justification for disallowing the
requested return. I refer to the public pulse. It must be
remembered that the ouster of
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the Marcoses from the Philippines came about as an


unexpected, but certainly welcomed, result of the
unprecedented peoples power revolution. Millions of our
people braved military tanks and firepower, kept vigil,
prayed, and in countless manner and ways contributed
time, effort and money to put an end to an evidently
untenable claim to power of a dictator. The removal of the
Marcoses from the Philippines was a moral victory for the
Filipino people and the installation of the present
administration, a realization of and obedience to the
peoples will.
Failing in legal arguments for the allowance of the
Marcoses return, appeal is being made to sympathy,
compassion and even Filipino tradition. The political and
economic gains we have achieved during the past three
years are however too valuable and precious to gamble
away on purely compassionate considerations. Neither
could public peace, order and safety be sacrificed for an
individuals wish to die in his own country. Verily in the
balancing of interests, the scales tilt in favor of presidential
prerogative, which we do not find to have been gravely
abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.

GUTIERREZ, JR., J., Dissenting Opinion

The Constitution xxx is a law for rulers and people,


equally in war and in peace, and covers with the shield of
its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious
consequences was ever invented by the wit of man than
that any of its provisions can be suspended during any of
the great exigencies of government. (Ex Parte Milligan, 4
Wall. 2 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the
stirring words of Ex Parte Milligan as selfevident truth.
But faced with a hard and delicate case, we now hesitate to
give substance to their meaning. The Court has permitted
a basic freedom enshrined in the Bill of Rights to be taken
away by Government.
There is only one Bill of Rights with the same
interpretation of liberty and the same guarantee of freedom
for both unloved and despised persons on one hand and the
rest who are not so
703
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stigmatized on the other.


I am, therefore, disturbed by the majority ruling which
declares that it should not be a precedent. We are
interpreting the Constitution for only one person and
constituting him into a class by himself. The Constitution
is a law for all classes of men at all times. To have a person
as one class by himself smacks of unequal protection of the
laws.
With all due respect for the majority in the Court, I
believe that the issue before us is one of rights and not of
power. Mr. Marcos is insensate and would not live if
separated from the machines which have taken over the
functions of his kidneys and other organs. To treat him at
this point as one with full panoply of power against whom
the forces of Government should be marshalled is totally
unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his
right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:

Sec.6.The liberty of abode and of changing the same within the


limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
health, as may be provided by law. (Italics supplied, Section 6,
Art. III, Constitution)

To have the petition dismissed, the Solicitor General


repeats a ritual invocation of national security and public
safety which is hauntingly familiar because it was pleaded
so often by petitioner Ferdinand E. Marcos to justify his
acts under martial law. There is, however, no showing of
the existence of a law prescribing the limits of the power to
impair and the occasions for its exercise. And except for
citing breaches of law and order, the more serious of which
were totally unrelated to Mr. Marcos and which the
military was able to readily quell, the respondents have not
pointed to any grave exigency which permits the use of
untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.
The respondents basic argument is that the issue before
us is a political question beyond our jurisdiction to
consider. They
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contend that the decision to ban former President Marcos,


and his family on grounds of national security and public
safety is vested by the Constitution in the President alone.
The determination should not be questioned before this
Court. The Presidents finding of danger to the nation
should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court
stated:

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

We defined a political question in Taada v. Cuenco (103


Phil. 1051, 1066 [1957]), as follows:

In short, the term political question connotes, in legal parlance,


what it means in ordinary parlance, namely, a question of policy.
In other words, in the language of Corpus Juris Secundum
(supra), it refers to those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.

The most often quoted definition of political question was


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

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It is apparent that several formulations which vary slightly


according to the settings in which the questions arise may
describe a

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political question, which identifies it as essentially a function of


the separation of powers. Prominent on the surface of any case
held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it or the
impossibility of deciding without an initial policy determination of
a kind clearly for nonjudicial discretion or the impossibility of a
courts undertaking independent resolution without expressing
lack of the respect due coordinate branches of government or an
unusual need for unquestioning adherence to a political decision
already made or potentiality of embarassment from multifarious
pronouncements by various departments on one question.

For a political question to exist, there must be in the


Constitution a power vested exclusively in the President or
Congress, the exercise of which the court should not
examine or prohibit. A claim of plenary or inherent power
against a civil right which claim is not found in a specific
provision is dangerous. Neither should we validate a roving
commission allowing public officials to strike where they
please and to override everything which to them represents
evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the
Constitution which commits or vests the determination of
the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights
itself does not exist because no law has been enacted
specifying the circumstances when the right may be
impaired in the interest of national security or public
safety. The power is in Congress, not the Executive.
The closest resort to a textually demonstrable
constitutional commitment of power may be found in the
commanderinchief 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.

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There is, however, no showing, not even a claim that the


followers of former President Marcos are engaging in
rebellion or that he is in a position to lead them. Neither is
it claimed that there is a need to suspend the privilege of
the writ of habeas
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Marcos vs. Manglapus

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 nonjusticeability and to
ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hardpressed to state
who or what constitutes a Marcos loyalist. The constant
insinuations that the loyalist group is heavily funded by
Mr. Marcos and his cronies and that the loyalists
engaging in rallies and demonstrations have to be paid
individual allowances to do so constitute the strongest
indication that the hard core loyalists who would follow
Marcos right or wrong are so few in number that they could
not possibly destabilize the government, much less mount a
serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come
home can be tagged a loyalist. It is in the best of Filipino
customs and traditions to allow a dying person to return to
his home and breath his last in his native surroundings.
Out of the 103 Congressmen who passed the House
resolution urging permission for his return, there are those
who dislike Mr. Marcos intensely or who suffered under his
regime. There are also many Filipinos who believe that in
the spirit of national unity and reconciliation Mr. Marcos
and his family should be permitted to return to the
Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies
and demonstrations.
The Court, however, should view the return of Mr.
Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the
citizens right to travel as against the respondents
contention that national security and public safety would
be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution
committing the issue exclusively to the President, there is
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likewise no dearth of decisional data, no unmanageable


standards which stand in the way of a judicial
determination.
Section 6 of the Bill of Rights states categorically that
the liberty of abode and of changing the same within the
limits prescribed by law may be impaired only upon a
lawful order of a court.Not by an executive officer. Not even
by the President. Section 6 further provides that the right
to travel, and this
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obviously includes the right to travel out of or back into the


Philippines, cannot be impaired except in the interest of
national security, public safety, or public health, as may be
provided by law.
There is no law setting the limits on a citizens right to
move from one part of the country to another or from the
Philippines to a foreign country or from a foreign country to
the Philippines. The laws cited by the Solicitor General
immigration, health, quarantine, passports, motor vehicle,
destierro, probation, and paroleare all inapplicable
insofar as the return of Mr. Marcos and family is
concerned. There is absolutely no showing how any of these
statutes and regulations could serve as a basis to bar their
coming home.
There is also no disrespect for a Presidential
determination if we grant the petition. We would simply be
applying the Constitution, in the preservation and defense
of which all of us in Government, the President and
Congress included, are sworn to participate. Significantly,
the President herself has stated that the Court has the last
word when it comes to constitutional liberties and that she
would abide by our decision.
As early as 1983, it was noted that this Court has not
been very receptive to the invocation of the political
question doctrine by government lawyers. (See Morales, Jr.
v. Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in
the executive departments, Congress, and the judiciary
criticized this Court for using what they felt was a doctrine
of convenience, expediency, utility or subservience.Every
major challenge to the acts of petitioner Ferdinand E.
Marcos under his authoritarian regimethe proclamation
of martial law, the ratification of a new constitution, the
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arrest and detention of enemies of the State without


charges being filed against them, the dissolution of
Congress and the exercise by the President of legislative
powers, the trial of civilians for civil offenses by military
tribunals, the seizure of some of the countrys biggest
corporations, the taking over or closure of newspaper
offices, radio and television stations and other forms of
media, the proposals to amend the Constitution, etc.was
invariably met by an invocation that the petition involved a
political question. It is indeed poetic justice that the
political question
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708 SUPREME COURT REPORTS ANNOTATED


Marcos vs. Manglapus

doctrine so often invoked by then President Marcos to


justify his acts is now being used against him and his
family. Unfortunately, the Court should not and is not
allowed to indulge in such a persiflage. We are bound by
the Constitution.
The dim view of the doctrines use was such that when
the present Constitution was drafted, a broad definition of
judicial power was added to the vesting in the Supreme
Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the
Constitution provides:

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


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

This new provision was enacted to preclude this Court from


using the political question doctrine as a means to avoid
having to make decisions simply because they are too
controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not
enforced.
The framers of the Constitution believed that the free
use of the political question doctrine allowed the Court
during the Marcos years to fall back on prudence,
institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was
extravagantly extending judicial power in the cases where

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it refused to examine and strike down an exercise of


authoritarian power. Parenthetically, at least two of the
respondents and their counsel were among the most
vigorous critics of Mr. Marcos (the main petitioner) and his
use of the political question doctrine. The Constitution was
accordingly amended. We are now precluded by its
mandate from refusing to invalidate a political use of power
through a convenient resort to the political question
doctrine. We are compelled to decide what would have been
nonjusticeable under our decisions interpreting earlier
fundamental charters.
This is not to state that there can be no more political
questions which we may refuse to resolve. There are still
some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue
before us is not one
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of them.
The Constitution requires the Court to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction.
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present
evidence. Unfortunately, considerations of national security
do not readily lend themselves to the presentation of proof
before a court of justice. The vital information essential to
an objective determination is usually highly classified and
it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93
[1905]), the Court was faced with a similar situation. It
posed a rhetorical question. If after investigating conditions
in the Archipelago or any part thereof, the President finds
that public safety requires the suspension of the privilege
of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such
conditions exist?
In the effort to follow the grave abuse of discretion
formula in the second paragraph of Section 1, Article VIII
of the Constitution, the court granted the Solicitor
Generals offer that the military give us a closed door
factual briefing with a lawyer for the petitioners and a
lawyer for the respondents present.

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The results of the briefing call to mind the concurrence


of Justice Vicente Abad Santos in Morales, Jr. v. Enrile,
(121 SCRA 538, 592 [1983]):

How can this Court determine the factual basis in order that it
can ascertain whether or not the president acted arbitrarily in
suspending the writ when, in the truthful words of Montenegro,
with its very limited machinery [it] cannot be in better position
[than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer
is obvious. It must rely on the Executive Branch which has the
appropriate civil and military machinery for the facts. This was
the method which had to be used in Lansang. This Court relied
heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court,
relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the
Executive Branch supplied information to support its position and
this

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Marcos vs. Manglapus

Court was in no situation to disprove them. It was a case of the


defendant judging the suit. After all is said and done, the attempt
by this Court to determine whether or not the President acted
arbitrarily in suspending the writ was a useless and futile
exercise.
There is still another reason why this Court should maintain a
detached attitude and refrain from giving the seal of approval to
the act of the Executive Branch. For it is possible that the
suspension of the writ lacks popular support because of one
reason or another. But when this Court declares that the
suspension is not arbitrary (because it cannot do otherwise upon
the facts given to it by the Executive Branch) it in effect
participates in the decisionmaking 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
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the Marcos of today and, in fact, are led by people who have
always opposed him. If we use the problems of Government
as excuses for denying a persons right to come home, we
will never run out of justifying reasons. These problems or
others like them will always be with us.
Significantly, we do not have to look into the factual
bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of
discretion. Nor are we forced to fall back upon judicial
notice of the implications of a Marcos return to his home to
buttress a conclusion.
In the first place, there has never been a pronouncement
by the President that a clear and present danger to
national security and public safety will arise if Mr. Marcos
and his family are allowed to return to the Philippines. It
was only after the present petition was filed that the
alleged danger to national security and public safety
conveniently surfaced in the respondents pleadings.
Secondly, President Aquino herself limits the reason for the
ban Marcos policy to(1) national welfare and interest and
(2) the continuing need to preserve the gains achieved in
terms of recovery and stability. (See page 7,

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respondents Comment at page 73 of Rollo). Neither ground


satisfies the criteria of national security and public safety.
The President has been quoted as stating that the vast
majority of Filipinos support her position. (The Journal,
front page, January 24, 1989) We cannot validate her
stance simply because it is a popular one. Supreme Court
decisions do not have to be popular as long as they follow
the Constitution and the law. The Presidents original
position that it is not in the interest of the nation that
Marcos be allowed to return at this time has not changed.
(Manila Times, front page, February 7, 1989). On February
11, 1989, the President is reported to have stated that
considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the
past three years in justifying her firm refusal to allow the
return of Mr. Marcos despite his failing health. (Daily
Globe, front page, February 15, 1989). Interest of the
nation, national good, and preserving economic and
political gains, cannot be equated with national security or
public order. They are too generic and sweeping to serve as
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grounds for the denial of a constitutional right. The Bill of


Rights commands that the right to travel may not be
impaired except on the stated grounds of national security,
public safety, or public health and with the added
requirement that such impairment must be as provided by
law. The constitutional command cannot be negated by
mere generalizations.
There is an actual rebellion not by Marcos followers but
by the New Peoples Army. Feeding as it does on injustice,
ignorance, poverty, and other aspects at
underdevelopment, the Communist rebellion is the clearest
and most present danger to national security and
constitutional freedoms. Nobody has suggested that one
way to quell it would be to catch and exile its leaders, Mr.
Marcos himself was forced to flee the country because of
peoples power. Yet, there is no move to arrest and exile
the leaders of student groups, teachers organizations,
peasant and labor federations, transport workers, and
government unions whose threatened mass actions would
definitely endanger national security and the stability of
government. We fail to see how Mr. Marcos could be a
greater danger.
The fear that Communist rebels, Bangsa Moro
secessionists, the Honasan exsoldiers, the hard core
loyalists, and other
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dissatisfied elements would suddenly unite to overthrow


the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a
constitutional right. It is not shown how extremists from
the right and the left who loathe each other could find a
rallying point in the coming of Mr. Marcos.
The confluence theory of the Solicitor General or what
the majority calls catalytic effect, which alone sustains
the claim of danger to national security is fraught with
perilous implications. Any difficult problem or any
troublesome person can be substituted for the Marcos
threat as the catalysing factor. The alleged confluence of
NPAs, secessionists, radical elements, renegade soldiers,
etc., would still be present. Challenged by any critic or any
serious problem, the Government can state that the
situation threatens a confluence of rebel forces and proceed
to ride roughshod over civil liberties in the name of
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national security. Today, a passport is denied. Tomorrow, a


newspaper may be closed. Public assemblies may be
prohibited. Human rights may be violated. Yesterday, the
right to travel of Senators Benigno Aquino, Jr. and Jovito
Salonga was curtailed. Today, it is the right of Mr. Marcos
and family. Who will be tomorrows pariahs? I deeply
regret that the Courts decision to use the political question
doctrine in a situation where it does not apply raises all
kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the
Chief of Staff of the Armed Forces, has personally assured
the Court that a rebellion of the above combined groups
will not succeed and that the military is on top of the
situation. Where then is the clear danger to national
security? The Court has taken judicial notice of something
which even the military denies. There would be severe
strains on military capabilities according to General de
Villa. There would be setbacks in the expected eradication
of the Communist threat. There would be other serious
problems but all can be successfully contained by the
military. I must stress that no reference was made to a
clear and present danger to national security as would
allow an overriding of the Bill of Rights.
The Solicitor Generals argument that the failure of
Congress to enact a statute defining the parameters of the
right to travel and to freely choose ones abode has
constrained the President
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to fill in the vacuum, is too reminiscent of Amendment No.


6 of the martial law Constitution to warrant serious
consideration. Amendment No. 6 allowed Marcos to issue
decrees whenever the Batasang Pambansa failed or was
unable to act adequately on any matter for any reason that
in his judgment required immediate action. When the Bill
of Rights provides that a right may not be impaired except
in the interest of national security, public safety, or public
health and further requires that a law must provide when
such specifically defined interests are prejudiced or require
protection, the inaction of Congress does not give reason for
the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before
American federal courts does not obstruct us from ruling
against an unconstitutional assertion of power by
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Philippine officials. Let the United States apply its laws.


We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a
transpacific flight. The agony of traveling while hooked up
to machines which have taken over the functions of his
heart, lungs, and kidneys may hasten his death. The
physical condition of Mr. Marcos does not justify our
ignoring or refusing to act on his claim to a basic right
which is legally demandable and enforceable. For his own
good, it might be preferable to stay where he is. But he
invokes a constitutional right. We have no power to deny it
to him.
The issuance of a passport may be discretionary but it
should not be withheld if to do so would run counter to a
constitutional guarantee. Besides, the petitioners are not
asking for passports and nothing else. Any travel
documents or any formal lifting of the Marcos ban as would
allow international airlines to sell them tickets would
suffice.
With all due respect for the majority opinion, I disagree
with its dictum on the right to travel. I do not think we
should differentiate the right to return home from the right
to go abroad or to move around in the Philippines. If at all,
the right to come home must be more preferred than any
other aspect of the right to travel. It was precisely the
banning by Mr. Marcos of the right to travel by Senators
Benigno Aquino, Jr., Jovito Salonga, and scores of other
undesirables and threats to national security during
that unfortunate period which led the framers
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Marcos vs. Manglapus

of our present Constitution not only to reenact but to


strengthen the declaration of this right. Media often asks,
what else is new? I submit that we now have a freedom
loving and humane regime. I regret that the Courts
decision in this case sets back the gains that our country
has achieved in terms of human rights, especially human
rights for those whom we do not like or those who are
against us.
The respondent Secretary of Foreign Affairs, Raul S.
Manglapus has disclosed a list of former dictators who were
barred by their successors from returning to their
respective countries. There is no showing that the countries
involved have constitutions which guarantee the liberty of
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abode and the freedom to travel and that despite such


constitutional protections, the courts have validated the
ban a return policy. Neither is it shown that the
successors of the listed dictators are as deeply committed to
democratic principles and as observant of constitutional
protections as President Aquino.
It is indeed regrettable that some followers of the former
President are conducting a campaign to sow discord and to
divide the nation. Opposition to the government no matter
how odious or disgusting is, however, insufficient ground to
ignore a constitutional guarantee.
During the protracted deliberations on this case, the
question was askedIs the Government helpless to defend
itself against a threat to national security? Does the
President have to suspend the privilege of the writ of
habeas corpus or proclaim martial law? Can she not take
less drastic measures?
Of course, the Government can act. It can have Mr.
Marcos arrested and tried in court. The Government has
more than ample powers under existing law to deal with a
person who transgresses the peace and imperils public
safety. But the denial of travel papers is not one of those
powers because the Bill of Rights says so. There is no law
prescribing exile in a foreign land as the penalty for
hurting the Nation.
Considering all the foregoing, I vote to GRANT the
petition.

CRUZ, J., Dissenting Opinion

It is my belief that the petitioner, as a citizen of the


Philippines, is entitled to return to and liveand diein
his own

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Marcos vs. Manglapus

country. I say this with a heavy heart but say it


nonetheless. That conviction is not diminished one whit
simply because many believe Marcos to be beneath
contempt and undeserving of the very liberties he flouted
when he was the absolute ruler of this land.
The right of the United States government to detain him
is not the question before us, nor can we resolve it. The
question we must answer is whether or not, assuming that
Marcos is permitted to leave Hawaii (which may depend on
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the action we take today), the respondents have acted with


grave abuse of discretion in barring him from his own
country.
My reluctant conclusion is that they have, absent the
proof they said they were prepared to offer, but could not,
that the petitioners return would prejudice the security of
the State.
I was the one who, in the open hearing held on June 27,
1989, asked the Solicitor General if the government was
prepared to prove the justification for opposing the herein
petition, i.e., that it had not acted arbitrarily. He said it
was. Accordingly, the Court, appreciating the classified
nature of the information expected, scheduled a closeddoor
hearing on July 25, 1988. The Solicitor General and three
representatives from the military appeared for the
respondents, together with former Senator Arturo M.
Tolentino, representing the petitioners.
In about two hours of briefing, the government failed
dismally to show that the return of Marcos dead or alive
would pose a threat to the national security as it had
alleged. The fears expressed by its representatives were
based on mere conjectures of political and economic
destabilization without any single piece of concrete
evidence to back up their apprehensions.
Amazingly, however, the majority has come to the
conclusion that there exist factual bases for the
Presidents decision to bar Marcoss return. That is not my
recollection of the impressions of the Court after that
hearing.
In holding that the President of the Philippines has
residual powers in addition to the specific powers granted
by the Constitution, the Court is taking a great leap
backward and reinstating the discredited doctrine
announced in Planas v. Gil (67 Phil. 62). This does not
square with the announced policy of the Constitutional
Commission, which was precisely to limit

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Marcos vs. Manglapus

rather than expand presidential powers, as a reaction to


the excesses of the past dictatorship.
I can only repeat Justice Blacks wry observation in the
Steel Seizure Case (343 U.S. 579) that if it was true that
the President had been granted the totality of executive
power, it is difficult to see why our forefathers bothered to
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add several specific items, including some trifling ones, . . .


I cannot accept the view that this clause is a grant in bulk
of all conceivable executive power but regard it as an
allocation to the presidential office of the generic powers
thereafter stated.
I have no illusion that the stand I am taking will be met
with paeans of praise, considering that Marcos is perhaps
the most detested man in the entire history of our country.
But we are not concerned here with popularity and
personalities. As a judge, I am not swayed by what Justice
Cardozo called the hooting throng that may make us see
things through the prisms of prejudice. I bear in mind that
when I sit in judgment as a member of this Court, I must
cast all personal feelings aside.
The issue before us must be resolved with total
objectivity, on the basis only of the established facts and
the applicable law and not of wounds that still fester and
scars that have not healed. And not even of fear, for fear is
a phantom. That phantom did not rise when the people
stood fast at EDSAagainst the threat of total 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.
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Marcos vs. Manglapus

PARAS, J., Dissenting Opinion

I dissent. Already, some people refer to us as a nation


without discipline. Are we ready to be also called a society
without compassion?

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The issue as to whether or not former President


Ferdinand E. Marcos should be allowed to return to the
Philippines may be resolved by answering two simple
questions: Does he have the right to return to his own
country? and should national safety and security deny him
this right?
There is no dispute that the former President is still a
Filipino citizen and both under the Universal Declaration
of Human Rights and the 1987 Constitution of the
Philippines, he has the right to return to his own country
except only if prevented by the demands of national safety
and national security.
Our Armed Forces have failed to prove this danger. They
are bereft of hard evidence, and all they can rely on is sheer
speculation. True, there is some danger but there is no
showing as to the extent.
It is incredible that one man alone together with his
family, who had been ousted from this country by popular
will, can arouse an entire country to rise in morbid
sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the
contrary notwithstanding, that the former President should
be allowed to return to our country under the conditions
that he and the members of his family be under house
arrest in his hometown in Ilocos Norte, and should
President Marcos or any member of his family die, the body
should not be taken out of the municipality of confinement
and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its
regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J., Dissenting Opinion

I dissent. As I see it, the core issue in this case is, which
right will prevail in the conflict between the right of a
Filipino, Ferdinand E. Marcos, to return to the Philippines,
and the right
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718 SUPREME COURT REPORTS ANNOTATED


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of the Philippine Government to bar such return in the


interest of national security and public safety. In this
context, the issue is clearly justiciable involving, as it does,
colliding assertions of individual right and governmental
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power. Issues of this nature more than explain why the


1986 Constitutional Commission, led by the illustrious
former Chief Justice Roberto Concepcion, incorporated in
the 1987 Constitution, the new provision on the power of
Judicial Review, viz:

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


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

Mr. Marcos invokes in his favor the specific and precise


constitutional right of every Filipino to travel which, in the
language of the Constitution, shall not be impaired except
in the interest of national security, public safety, or public
health, as may be provided by law (Art. III, Sec. 6). That
the right to travel comprises the right to travel within the
country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all
such components, the right to travel is meaningless. The
real question arises in the interpretation of the
qualifications attached by the Constitution to such right to
travel.
Petitioners contend that, in the absence of restricting
legislation,the right to travel is absolute. I do not agree. It
is my view that, with or without restricting legislation, the
interest of national security, public safety or public health
can justify and even require restrictions on the right to
travel, and that the clause as may be provided by law
contained in Article III, Section 6 of the 1987 Constitution
merely declares a constitutional leave or permission for
Congress to enact laws that may restrict the right to travel
in the interest of national security, public safety or public
health. I do not, therefore, accept the petitioners
submission that, in the absence of enabling legislation, the
Philippine Government is powerless to restrict travel even
when such restriction is demanded by national security,
public safety or public health. The power of the State, in
particu

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Marcos vs. Manglapus

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lar cases, to restrict travel of its citizens finds abundant


support in the police power of the State, which may be
exercised to preserve and maintain government as well as
promote the general welfare of the greatest number of
people.
And yet, the power of the State, acting through a
government in authority at any given time, to restrict
travel, even if founded on police power, cannot be absolute
and unlimited under all circumstances, much less, can it be
arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a
Filipino, invoking a specific constitutional
1
right, i. e., the
right to return to the country. Have the respondents
presented sufficient evidence to offset or override the
exercise of this right invoked by Mr. Marcos? Stated
differently, have the respondents shown to the Court
sufficient factual bases and data which would justify their
reliance on national security and public safety in negating
the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I
have carefully weighed and assessed the briefing given
the Court by the highest military authorities of the land
last 28 July 1989. I have searched, but in vain, for
convincing evidence that would defeat and overcome the
right of Mr. Marcos as a Filipino to return to this country.
It appears to me that the apprehensions entertained and
expressed by the respondents, including those conveyed
through the military, do not, with all due respect, escalate
to proportions of national security or public safety. They
appear to be more speculative than real, obsessive rather
than factual. Moreover, such apprehensions even if
translated into realities, would be under control, as
admitted to the Court by said military authorities, given
the resources and facilities at the command of government.
But, above all, the Filipino people themselves, in my
opinion, will know how to handle any situation brought
about by a political recognition of Mr. Marcos right to
return, and his actual return, to this country. The Court, in
short, should not accept respondents general
apprehensions, concerns and perceptions at face value, in
the light of a countervailing and even irresistible, specific,
clear, demandable, and enforceable right asserted by a
Filipino.

_______________

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


the Universal Declaration of Human Rights.

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Deteriorating political, social, economic or exceptional


conditions, if any, are not to2 be used as a pretext to justify
derogation of human rights.
As a member of the United Nations, the Philippines has
obligations under its charter. By adopting the generally
accepted principles of international law as part of the law
of the land, (Art. II, Sec. 2 of the Constitution), the
Philippine government cannot just pay lip service to Art.
13, par. 2 of the Universal Declaration of Human Rights
which provides that everyone has the right to leave any
country, including his own, and to return to his country.
This guarantee is reiterated in Art. XII, par. 2 of the
International Covenant on Civil and Political Rights which
states that no one shall be arbitrarily deprived of the right
to enter his own country. (italics supplied) Arbitrary or
arbitrarily
3
was specifically chosen by the drafters of the
Covenant 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
4
justice which falls short of international
law or standards.
The Solicitor General maintains that because the
respondents, as alter egos of the President, have raised the
argument of national security and public safety, it is the
duty of this Court to unquestioningly yield thereto, thus
casting the controversy to the realm of a political question.
I do not agree. I believe that this is one case where the
human and constitutional right invoked by one party is so
specific, substantial and clear that it cannot be
overshadowed, much less, nullified by simplistic
generalities worse, the Court neglects its duty under the
Constitution when it allows the theory of political question
to serve as a convenient, and yet, lame excuse for evading
what,

_______________

2 S.P. Marks, Principles and Norms of Human Rights Applicable in


Emergency Situations: Underdevelopment, Catastrophies and Armed
Conflicts, The International Dimensions of Human Rights, Vol. 1 Unesco,
1982, pp. 175204.

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3 P. Hassan, The Word Arbitrary as used in the Universal Declaration


of Human Rights: Illegal or Unjust, 10 Harv. Int. L.J., p. 225 (1969).
4 F.C. Newman and K. Vasak, Civil and Political Rights, The
International Dimensions of Human Rights, pp. 135166.

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VOL. 177, SEPTEMBER 15, 1989 721


Marcos vs. Manglapus

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. Marcos5
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.

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ACCORDINGLY, I vote to GRANT the petition.

_______________

5 As to whether the U.S. Federal Government will allow Mr. Marcos to


leave the United States, is beyond the issues in this case similarly, as to
how the Philippine government should deal with Mr. Marcos upon his
return is also outside of the issues in this case.

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SARMIENTO, J., Dissenting Opinion

I vote to grant the petition.


The only issue that saddles the Court is simply:
whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit
1
the Marcoses
from returning to the 2
Philippines. I therefore take
exception to allusions anent the3
capacity of the Marcoses
to stir trouble even from afar. I have legitimate reason to
fear that my brethren, in passing judgment on the
Marcoses (insofar as their capacity to stir trouble is
concerned), have overstepped the bounds of judicial
restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have
as the real issues facing the Court: The right to return to
ones country, pitted against the right of travel and
freedom of abode, and their supposed distinctions under
international law, as if such distinctions, under
international law, in truth and in fact exist. There is only
one right involved here, whether under municipal or
international law: the right of travel, whether within ones
own country, or to another, and the right to return thereto.
The Constitution itself makes no distinctions let, then, no
one make a distinction. Ubi lex non distinguit, nec nos
distinguere debemus.
As the majority would indeed have it, the issue is one of
power: Does the Executive have the power to deny a citizen
his right to travel (back to the country or to another)? It is
a question that, in essence, involves the application, and no
more, of the provisions of the 1987 Constitution:

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

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except in the interest of national security,


4
public safety, or public
health, as may be provided by law.

_______________

1 Decision, 4.
2 Seesupra,14.
3 Supra,2.
4 CONST., art. III, sec. 6.

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VOL. 177, SEPTEMBER 15, 1989 723


Marcos vs. Manglapus

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 power5
is more
than the sum of specific powers so enumerated.
So also:

Faced with the problem of whether or not the time is right to


allow the Marcoses to return to the Philippines, the President is,
under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn
to defend and uphold the Constitution, the President has the
obligation under the Constitution to protect the people, promote
their welfare and advance the national interest. It must be borne
in mind that the Constitution, aside from being an allocation of
power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common
good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the
people become rulers, the Constitution reminds everyone that
[s]overeignty resides in the people and
6
all government authority
emanates from them. [Art. II, Sec. 1.]

And finally:

To the President, the problem is one of balancing the general


welfare and the common good against the exercise of rights of
certain individuals. The power involved is the Presidents residual
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power to protect the general welfare of the people. It is founded on


the duty of the President, as steward of the people. To paraphrase
Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbiden by the Constitution or
the laws that the needs of the nation demanded [See Corwin,
supra,at 153]. It is a power borne by the Presidents duty to
preserve and defend the

_______________

5 Decision, supra, 18 emphasis in the original.


6 Supra,2021.

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724 SUPREME COURT REPORTS ANNOTATED


Marcos vs. Manglapus

Constitution. It also may be viewed as a power implicit in the


Presidents duty to take care that the laws are faithfully executed
[See Hyman, The American President, where the author advances
the view that an allowance of discretionary power is unavoidable
7
in any government and is best lodged in the President].

I am not persuaded.

I.

First: While the Chief Executive exercises powers not found


expressly in* the Charter, but has them by constitutional
implication, the latter must yield to the paramountcy of
the Bill of Rights. According to Fernando: A regime of
constitutionalism is thus unthinkable without an
assurance of the primacy of a bill of rights. Precisely a
constitution exists to assure that in the discharge of the
governmental functions, the dignity that is the birthright of
every human being is duly safeguarded. To be true to its
primordial aim, a constitution must lay down the
boundaries
8
beyond which lies forbidden territory for state
action.
My brethren have not demonstrated, to my satisfaction,
how the President may override the direct mandate of the
fundamental law. It will not suffice, so I submit, to say that
the Presidents plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail
over express constitutional commands. Clearly, so I
borrow J.B.L. Reyes, in his own right, a titan in the field of
public law, this argument . . . rests . . . not upon the text of
the [Constitution] . . . but upon a mere inference
9
therefrom. For if it were, indeed, the intent of
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9
therefrom. For if it were, indeed, the intent of the Charter
to create an exception, that is, by Presidential action, to the
right of travel or liberty of abode and of changing the same
other than what 10
it explicitly says already (limits
11
prescribed by law or upon lawful order of the court )
the

_______________

7 Supra,2122.
* But see Cruz, J., Dissenting.
8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
9 Republic v. Quasha, No. L30299, August 17, 1972, 46 SCRA 160, 169.
10 CONST.,supra.
11 Supra.

725

VOL. 177, SEPTEMBER 15, 1989 725


Marcos vs. Manglapus

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 necessary12in the
interest of national security, public safety, or public health.

Under this provision, the right may be abated: (1) upon a


lawful court order, or (2) when necessary in the interest of13
national security, public safety, or public health.
Arguably, the provision enabled the Chief Executive
(Marcos) to moderate movement of citizens, which, Bernas
says, justified such practices as hamletting, 14
forced
relocations, or the establishment of freefire zones.

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The new Constitution, however, so it clearly appears,


has divested the Executives implied power. And, as it so
appears, the right15 may be impaired only within the limits
provided by law. The President is out of the picture.
Admittedly, the Chief Executive is
16
the sole judge of all
17
matters affecting national security and foreign affairs
the Bill of Rightsprecisely, a form of check against
excesses of

_______________

12 CONST. (1973), art. IV, sec. 5.


13 Supra.
14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES, 263 (1987 ed.)
15 CONST. (1987), art. III, sec. 6, supra.
16 See supra, art. VII, sec. 18.
17 See Go Tek v. Deportation Board, No. L23846, September 9, 1977,
79 SCRA 17.

726

726 SUPREME COURT REPORTS ANNOTATED


Marcos vs. Manglapus

officialdomis, in this case, a formidable barrier against


Presidential action. (Even on matters of State security, this
Constitution prescribes limits to Executives powers as
CommanderinChief.)
Second: Assuming,ex hypothesi, that the President may
legally act, the question that emerges is: Has it been
proved that Marcos, or his return, will, in fact, interpose a
threat to the national security, public safety, or public
health? What appears in the records are vehement
insistences that Marcos does pose a threat to the national
goodand yet, at the same time, we have persistent
claims, made by the military top brass during the lengthy
closeddoor 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
18
that the threat is not only clear, but
more so, present.
That the President has the obligation 19
under the
Constitution to protect the people . . .: 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
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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 exfirst 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
selfrighteous.
Third: The problem is not of balancing the general 20
welfare against the exercise of individual liberties. As I
indicated, not one shred of evidence, let alone solid
evidence, other than

_______________

18 See Lansang v. Garcia, Nos. L33964, 33965, 33973, 33982, 34004,


34013, 34039, 34265, and 34339, December 11, 1971, 42 SCRA 448, 480.
19 Decision,supra, 21.
20 Supra.

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VOL. 177, SEPTEMBER 15, 1989 727


Marcos vs. Manglapus

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 21the exercise of the Presidents power as protector
of peace.
This is the selfsame falsehood Marcos foisted on the
Filipino people to justify the authoritarian rule. It also
means that we are no better than he was.
That [t]he power of the President to keep the peace is
not limited merely to exercising the commanderinchief
powers in times of emergency or to leading the 22State
against external and internal threats to its existence, is a
bigger fantasy: It not only summons the martial law
decisions of preEDSA (especially with respect to the
detestable Amendment No. 6), it is inconsistent with the
express provisions of the commanderinchief clause of the
1987 Charter, a Charter that has perceptibly reduced23
the
Executives powers visavis its 1973 counterpart.
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II.

The undersigned would be lacking in candor to conceal his


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

_______________

21 Supra.
22 Supra,22.
23 See CONST. (1987), art. VII, sec. 18, supra.
** Abraham (Ditto) Sarmiento, Jr., then EditorinChief, Philippine
Collegian (19751976), official student organ of the University of the
Philippines. He was detained in the military stockade for common
criminals from January to August, 1976.

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728 SUPREME COURT REPORTS ANNOTATED


Marcos vs. Manglapus

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,
24
for inciting to sedition and rumor
mongering, in the midst of the distribution of Ang
Demokrasya Sa Pilipinas (Democracy In the Philippines), a
book extremely critical of martial rule, published by him
and former Congressman Concordia, authored by President
Macapagal and translated into Tagalog by Congressman
Rogaciano Mercado. In addition, they were also all accused
of libel in more than two dozens of criminal complaints
filed by the several military officers named in the
condemned book as having violated the human rights of
dissenters, and for other crimes, in the office of the
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Provincial Fiscal of Rizal. It had to take the events at


EDSA to set them free from house arrest and these
political offenses. I am for Marcos return not because I
have a score to settle with him. Dittos death or my arrest
are scores that can not be settled.
I feel the exPresidents death abroad (presented in the
dailies as imminent) would leave him unpunished for
his crimes to country and countrymen. If punishment is
due, let this leadership inflict it. But let him stand trial
and accord him due process.
Modesty aside, I have staunchly and consistently
advocated the human right of travel and movement and the
liberty of

_______________

24 SPI No. 79347 (For: Violation of Presidential Decree No. 90 and


Article 142 of the Revised Penal Code, as amendedThe Judge Advocate
Generals Office, AFP), Special Civil Action, G.R. No. 54180, Diosdado
Macapagal, Rogaciano M. Mercado, Manuel A. Concordia, and Abraham F.
Sarmiento, Petitioners, vs. The Preliminary Investigating Panel in SPI
No. 79347 [Hamilton B. Dimaya, Brigadier General, AFP, The Judge
Advocate General, Chairman Leon O. Ridao, Colonel, JAGS (GSC),
Deputy Judge Advocate General, Member and Amor B. Felipe, Colonel,
JAGS (GSC) Executive Officer, Member], and the Minister of National
Defense, RespondentsSupreme Court.

729

VOL. 177, SEPTEMBER 19, 1989 729


People vs. Hortillano

25
abode. We would have betrayed our own ideals if we
denied Marcos his rights. It is his constitutional right, a
right that can not be abridged by personal hatred, fear,
founded or unfounded, and by speculations of the mans
capacity to stir trouble. Now that the shoe is on the
other foot, let no more of human rights violations be
repeated against any one, friend or foe. In a democratic
framework, there is no such thing as getting even.
The majority started this inquiry on the question of
power. I hold that the President, under the present
Constitution and existing laws, does not have it.
Mandamus, I submit, lies.
Petition dismissed.

Note.The exercise of even the preferred freedoms of


speech and of expression, although couched in absolute
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terms, admits of limits and must be adjusted to the


requirements of equally important public interests.
(Zaldivar vs. Sandiganbayan, G.R. Nos. 79690707, Oct. 7,
1988.)

o0o

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