Marcos vs. Manglapus

8/12/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 177
668 SUPREME COURT REPORTS ANNOTATED

Marcos vs. Manglapus
*
G.R. No. 88211.September 15, 1989.
FERDINAND E. MARCOS, IMELDA R. MARCOS,

FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE M.
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA,
PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by
its President, CONRADO F. ESTRELLA, petitioners, vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACA-RAIG,
SEDFREY ORDOÑEZ, 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 one’s 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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VOL. 177, SEPTEMBER 15, 1989 669
as a generally accepted principle of international law which is part of the

law of the land.—The right to return to one’s country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only of the liberty
of abode and the right to travel, but it is our 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
www.central.com.ph/sfsreader/session/0000016c84ac1b9145113b54003600fb002c009e/t/?o=False 1/60
[Art. II, Sec. 2 of the Constitution]. However, it is distinct and separate from
the right to travel and enjoys a different protection under the International
Covenant of Civil and Political Rights, i.e.,against being “arbitrarily
deprived” thereof [Art. 12 (4)].
Same; Same; The constitutional guarantees invoked by petitioners are

not absolute and inflexible, they admit of limits and must be adjusted to the
requirements of equally important public interests.—The resolution of the
problem is made difficult because the persons who seek to return to the
country are the deposed dictator and his family at whose door the travails of
the country are laid and from whom billions of dollars believed to be ill-
gotten wealth are sought to be recovered. The constitutional guarantees they
invoke are neither absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and of expression, although couched in
absolute terms, admits of limits and must be adjusted to the requirements of
equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1988].
Same; Separation of Powers; Executive Powers; The grant of execu-

tive power means a grant of all executive powers.—The 1987 Constitution
has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral
Commission [63 Phil. 139 (1936)], “the Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government.” [At 157]. Thus,
the 1987 constitution explicitly provides that “[t]he legislative power shall
be vested in the Congress of the Philippines” [Art. VI, Sec. 1], “[t]he
executive power shall be vested in the President of the Philippines” [Art.
VII, Sec. 1], and “[t]he judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law” [Art. VIII, Sec. 1].
These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary
legislative, executive and judicial powers subject only to limitations
provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626, (1910)] pointed out “a grant of the legislative power
means a
670
grant of all legislative power; and a grant of the judicial power means a
grant of all the judicial power which may be exercised under the
government.” [At 631-632.] If this can be said of the legislative power
which is exercised by two chambers with a combined membership of more
than two hundred members and of the judicial power which is vested in a
hierarchy of courts, it can equally be said of the executive power which is
vested in one official—the President.
Same; Same; Same; The President; The powers granted to the

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

President can exercise Commander-In-Chief powers in order to keep the
peace and maintain public order and security even in the absence of an
emergency.—More particularly, this case calls for the exercise of the
President’s powers as protector of the peace. [Rossiter, The Ameri-can
Presidency.] The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of emergency
or to leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic tranquility in times
when no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is not in any
way disminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-
chief the enumeration of powers that follow cannot be said to exclude the
Presi-dent’s exercising as Commander-in-Chief powers short of the calling
of
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the armed forces, or suspending the privilege of the writ of habeas corpusor
declaring martial law, in order to keep the peace, and maintain public order
and security.
Same; Same; Same; Same; The President has the power under the
Constitution to bar the Marcoses from returning to our country.—That the
President has the power under the Constitution to bar the Marcoses from
returning has been recognized by members of the Legislature, and is
manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to
return to the Philippines “as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution and our
laws.” [House Resolution No. 1342, Rollo, p. 321.] The Resolution does not
question the President’s power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President’s sense of compassion to
allow a man to come home to die in his country. What we are saying in
effect is that the request or demand of the Marcoses to be allowed to return
to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to
travel, subject to certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one. It must be
treated as a matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to the
exercise of a broader discretion on the part of the President to determine
whether it must be granted or denied.
Same; Same; Same; Power of Judicial Review; Political Question

Doctrine; The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry.—Under the
Constitution, judicial power includes the duty to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Goverment.”
[Art. VIII, Sec. 1.] Given this wording, we cannot agree with the Solicitor
General that the issue constitutes a political question which is beyond the
jurisdiction of the Court to decide. The present Constitution limits resort to
the political question doctrine and broadens the scope of judicial inquiry
into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide. But nonetheless there
remain issues beyond the Court’s jurisdiction the determination of which is
exclusively for
672
the President, for Congress or for the people themselves through a plebiscite
or referendum. We cannot, for example, question the President’s recognition
of a foreign government, no matter how premature or improvident such
action may appear. We cannot set aside a presidential pardon though it may
appear to us that the beneficiary is totally undeserving of the grant. Nor can
we amend the Constitution under the guise of resolving a dispute brought
before us because the power is reserved to the people.
Same; Same; Same; Same; In the exercise of the power of judicial

review, the function of the court is merely to check, not to supplant the
Executive.—There is nothing in the case before us that precludes our
determination thereof on the political question doctrine. The deliberations of
the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts
of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide. In this light, it would
appear clear that the second paragraph of Article VIII, Section 1 of the
Constitution, defining “judicial power,” which specifically empowers the
courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R.
No. L-33964, December 11, 1971, 42 SCRA 448] that: Article VII of the
[1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant
to the principle of separation of powers underlying our system of
government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more,
it goes hand in hand with the system of checks and balances, under which
the Executive is supreme, as regards the suspension of the privilege, but
only if and when he acts within the sphere alloted to him by the Basic Law,
and the authority to determine whether or not he has so acted is vested in the
Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is
merely to check—not to supplant—the Executive, or to ascertain merely
whether he has gone beyond the constitutional limits of his jurisdiction, not
to exercise the power vested in him or to determine the
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wisdom of his act. . . . [At 479-480.]
Same; Same; Same; Same; The President did not act arbitrarily,
capriciously and whimsically in determining that the return of the Marcoses
poses a serious threat to national interest and welfare, and in prohibiting
their return.—We find that from the pleadings filed by the parties, from
their oral arguments, and the facts revealed during the briefing in chambers
by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were
represented, there exist factual basis for the President’s decision. The Court
cannot close its eyes to present realities and pretend that the country is not
besieged from within by a wellorganized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers and
civilian officials, to mention only a few. The documented history of the
efforts of the Marcoses and their followers to destabilize the country, as
earlier narrated in thisponenciabolsters the conclusion that the return of the
Marcoses at this time would only exacerbate and intensify the violence
directed against the State and instigate more chaos. As divergent and
discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the return of the Marcoses
that may prove to be the proverbial final straw that would break the camel’s
back. With these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the return
of the Marcoses poses a serious threat to the national interest and welfare
and in prohibiting their return.
FERNAN, C.J., Concurring
Political Law; Executive Department; Presidential Power; Presidential

powers and prerogatives are not fixed and their limits are dependent on the
imperatives of events and contemporary imponderables rather than on
abstract theories of law.—Presidential powers and prerogatives are not
fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their
limits are likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law. History and time-
honored principles of constitutional law have conceded to the Executive
Branch certain powers in times of crisis or grave and imperative national
emergency. Many terms are applied to these powers: “residual,” “inherent,”
“moral,” “implied,”
674
“aggregate,” “emergency.” Whatever they may be called, the fact is that

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

Review; Political Question; For a political question to exist, there must be
in the Constitution a power exclusively vested in the President or Congress,
the exercise of which the courts should not examine or prohibit. The issue as
to the propriety of the President’s decision to prohibit the Marcoses from
returning is not a political question.—The most often quoted definition of
political question was made by Justice William J. Brennan, Jr., who penned
the decision of the United States Supreme Court in Baker v. Carr (369 US
186, 82 S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political
question as formulated in Baker v. Carr are: “It is apparent that several
formulations which vary slightly according to the settings in which the
questions arise may describe a political question, which identifies it as
essentially a function of the separation of powers. Prominent on the surface
of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already
made; or potentiality of embarassment from multifarious pronouncements
by various departments on one question.” For a political question to exist,
there must be in the Constitution a power vested exclusively in the President
or Congress, the exercise of which the court should not examine or prohibit.
A claim of plenary or inherent power against a civil right which claim is not
found in a specific provision is dangerous. Neither should we validate a
roving commission allowing public officials to strike where they please and
to override everything which to them represents evil. The entire
Government is bound by the rule of law. The respondents have not pointed
to any provision of the Constitution which commits or vests the determi-
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nation of the question raised to us solely in the President.
Same; Same; Bill of Rights; Liberty of Abode; The liberty of abode and
of changing the same within the limits prescribed by law may be impaired
only upon a lawful order of the court, not of an executive officer, not even
the President.—Section 6 of the Bill of Rights states categorically that the
liberty of abode and of changing the same within the limits prescribed by
law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that
the right to travel, and this obviously includes the right to travel out of or
back into the Philippines, cannot be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.
Same; Same; Same; Same; The Court has the last word when it comes
to Constitutional liberties.—There is also no disrespect for a Presidential
determination if we grant the petition. We would simply be applying the
Constitution, in the preservation and defense of which all of us in
Government, the President and Congress included, are sworn to participate.
Significantly, the President herself has stated that the Court has the last word
when it comes to constitutional liberties and that she would abide by our
decision.
Same; The Judiciary; Judicial Power; Political Questions; The

constitutional provision defining judicial power was enacted to preclude the
Court from using the political question doctrine as a means to avoid
controversial issues.—The second paragraph of Section 1, Article VIII of
the Constitution provides: “Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.” This new
provision was enacted to preclude this Court from using the political
question doctrine as a means to avoid having to make decisions simply
because they are too controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not enforced. The
framers of the Constitution believed that the free use of the political
question doctrine allowed the Court during the Marcos years to fall back on
prudence, institutional difficulties, complexity of issues, momentousness of
consequences or a fear that it was extravagantly extending judicial power in
the cases where it refused to examine and strike down an exercise of
authoritarian power. Parenthetically, at least two of the respondents and their
counsel were among the most vigorous
676
critics of Mr. Marcos (the main petitioner) and his use of the political
question doctrine. The Constitution was accordingly amended. We are now
precluded by its mandate from refusing to invalidate a political use of power
through a convenient resort to the political question doctrine. We are
compelled to decide what would have been non-justiceable under our
decisions interpreting earlier fundamental charters. This is not to state that
there can be no more political questions which we may refuse to resolve.
There are still some political questions which only the President, Congress,
or a plebiscite may decide. Definitely, the issue before us is not one of them.
Same; Same; Bill of Rights; Liberty of Abode; Right to Travel; The

right to come home must be more preferred than any other aspect of the
right to travel.—With all due respect for the majority opinion, I disagree
with its dictum on the right to travel. I do not think we should differentiate
the right to return home from the right to go abroad or to move around in the
Philippines. If at all, the right to come home must bemore preferred than any
other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito
Salonga, and scores of other “undesirables” and “threats to national
security” during that unfortunate period which led the framers of our present
Constitution not only to re-enact but to strengthen the declaration of this
right. Media often asks, “what else is new?” I submit that we now have a
freedom loving and humane regime. I regret that the Court’s decision in this
case sets back the gains that our country has achieved in terms of human
rights, especially human rights for those whom we do not like or those who
are against us.
Same; Same; Same; Opposition to the government, no matter how

odious and disgusting is not sufficient to deny or ignore a constitutional
right.—It is indeed regrettable that some followers of the former President
are conducting a campaign to sow discord and to divide the nation.
Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.
Same; Same; Same; Same; Denial of travel papers is not among the
powers granted to the government; There is no law prescribing exile to a
foreign land as a penalty for hurting the nation.—Of course, the
Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under existing law to deal with a
person who transgresses the peace and imperils public safety. But the denial
of travel papers is not one of those powers
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because the Bill of Rights says so. There is no law prescribing exile in a
foreign land as the penalty for hurting the Nation.
CRUZ, J., Dissenting
Political Law; Bill of Rights; Petitioner, as a Filipino, is entitled to

return to or live or die in his own country.—It is my belief that the
petitioner, as a citizen of the Philippines, is entitled to return to and live—
and die—in his own country. I say this with a heavy heart but say it
nonetheless. That conviction is not diminished one whit simply because
many believe Marcos to be beneath contempt and undeserving of the very
liberties he 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 President’s decision” to bar Marcos’s return.
That is not my recollection of the impressions of the Court after that
hearing.
Same; Same; Same; Marcos is entitled to the same right to travel and
liberty of abode that Aquino then invoked.—Like the martyred Ninoy
Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to
travel and the liberty of abode that his adversary invoked. These rights are
guaranteed by the Constitution to allindividuals, including the patriot and
the homesick and the prodigal son returning, and tyrants and charlatans and
scoundrels of every stripe.
PARAS, J., Dissenting
Political Law; Bill of Rights; Right to Travel; The former President, as

a Filipino citizen, has the right to return to his own country, except only if
prevented by the demands of national safety and national security.—There

is no dispute that the former President is still a Filipino citizen and both
under the Universal Declaration of Human Rights and the 1987 Constitution
of the Philippines, he has the right to return to his own country exceptonly if
prevented by the demands
678
of national safety and national security. Our Armed Forces have failed to
prove this danger. They are bereft of hard evidence, and all they can rely on
is sheer speculation. True, there is some danger but there is no showing as to
the extent.
PADILLA, J., Dissenting
Political Law; Bill of Rights; Right to Travel; Police Power; With or

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

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

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

one’s 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 one’s country,”
pitted against “the right of travel and freedom of abode,” and their supposed
distinctions under international law, as if such distinctions under
international law, in truth and in fact exist. There is only one right involved
here, whether under municipal or international law: the right of travel,
whether within one’s own country, or to another, and the right to return
thereto. The Constitution itself makes no distinctions; let, then, no one make
a distinction. Ubi lex non 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 President’s
plenitude of powers, as provided in the Constitution, or by sheer
constitutional implication, prevail over express constitutional commands.
“Clearly,” so I borrow J.B.L. Reyes, in his own right, a
680
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 same—other than what it explicitly says already (“limits prescribed by
law” or “upon lawful order of the court”)—the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question
are: (1) decree of statute, or (2) lawful judicial mandate. Had the
Constitution intended a third exception, that is, by Presidential initiative, it
could have so averred. It would also have made the Constitution, as far as
limits to the said right are concerned, come full circle: Limits by legislative,
judicial, and executive processes.
Same; Same; Same; Same; Same; Under the new Constitution, the
right to travel may be impaired only within the limits provided by law; The
President has been divested of the implied power to impair the right to
travel.—Obviously, none of the twin legal bars exist. There is no law
banning the Marcoses from the country; neither is there any court decree
banishing him from Philippine territory. It is to be noted that under the 1973
Constitution, the right to travel is worded as follows: Sec. 5. The liberty of
abode and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security, public safety, or
public health. Under this provision, the right may be abated: (1) upon a
lawful court order, or (2) “when necessary in the interest of national
security, public safety, or public health.” Arguably, the provision enabled the
Chief Executive (Marcos) to moderate movement of citizens, which, Bernas
says, justified such practices as “hamletting,” forced relocations, or the
establishment of free-fire zones. The new Constitution, however, so it
clearly appears, has divested the Executive’s implied power. And, as it so
appears, the right may be impaired only “within the limits provided by law.”
The President is out of the picture.
Same; Same; Same; Same; The determination of whether Marcos’

return poses a threat to national security should not be left solely to the
Chief Executive, the Court itself must be satisfied that the threat is not only
clear but also present.—Admittedly, the Chief Executive is the “sole” judge
of all matters affecting national security and foreign affairs; the Bill of
Rights—precisely, a form of check against excesses of officialdom—is, in
this case, a formidable barrier against Presidential action. (Even on matters
of State security, this Constitution prescribes limits to Executive’s powers as
commander-in-chief.) Second: Assuming, ex 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 good—and yet, at the same time, we have
persistent claims, made by the military top brass during the lengthy closed-
door hearing on July 25, 1989, that “this Government will not fall” should
the former first family in exile step on Philippine soil. Which is which? At
any rate, it is my opinion that we can not leave that determination solely to
the Chief Executive. The Court itself must be content that the threat is not
only clear, but more so, present.
CORTÉS, J.:
Before the Court is a controversy of grave national importance.

While ostensibly only legal issues are involved, the Court’s decision
in this case would undeniably have a profound effect on the
political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was
deposed from the presidency via the non-violent “people power”
revolution and forced into exile. In his stead, Corazon C. Aquino
was declared President of the Republic under a revolutionary
government. Her ascension to and 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. Aquino’s
presidency. This did not, however, stop bloody challenges to the
government. On August 28, 1987, Col. Gregorio Honasan, one of
the major players in the February Revolution, led a failed coup that
left scores of people, both combatants and civilians, dead. There
were several other armed sorties of lesser significance, but the
message they con-
682

veyed was the same—a split in the ranks of the military

establishment that threatened civilian supremacy over the military
and brought to the fore the realization that civilian government could
be at the mercy of a fractious military.
But the armed threats to the Government were not only found in
misguided elements in the military establishment and among rabid
followers of Mr. Marcos. There were also the communist insurgency
and the secessionist movement in Mindanao which gained ground
during the rule of Mr. Marcos, to the extent that the communists
have set up a parallel government of their own in the areas they
effectively control while the separatists are virtually free to move
about in armed bands. There has been no let up in these groups’
determination to wrest power from the government. Not only
through resort to arms but also through the use of propaganda have
they been successful in creating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The
accumulated foreign debt and the plunder of the nation attributed to
Mr. Marcos and his cronies left the economy devastated. The efforts
at economic recovery, three years after Mrs. Aquino assumed office,
have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses
has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to
return to the Philippines to die. But Mrs. Aquino, considering the
dire consequences to the nation of his return at a time when the
stability of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood
firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years
of political, economic and social havoc in the country and who
within the short space of three years seeks to return, is in a class by
itself.
This petition for mandamus and prohibition asks the Court to
order the respondents to issue travel documents to Mr. Marcos
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VOL. 177, SEPTEMBER 15, 1989 683

and the immediate members of his family and to enjoin the

implementation of the President’s decision to bar their return to the
Philippines.
The Issue
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 President’s decision, including the grounds upon
which it was based, been made known to petitioners so that

they may controvert the same?
c. Is the President’s determination that the return of for-mer

President Marcos and his family to the Philippines is a clear
and present danger to national security, public safety, or
public health a political question?
d. Assuming that the Court may inquire as to whether the
return of former President Marcos and his family is a clear
and present danger to national security, public safety, or
public health, have respondents established such fact?
684

3.Have the respondents, therefore, in implementing the

President’s decision to bar the return of former President
Marcos and his family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with grave abuse
of discretion, in performing any act which would effectively
bar the return of former President Marcos and his family to
the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.]
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.
(2)Everyone has the right to leave any country, including his own, and to
return to his country.
Likewise, the International Covenant on Civil and Political Rights,

which had been ratified by the Philippines, provides:
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Article 12
1) Everyone lawfully within the territory of a State shall, within that

territory, have the right to liberty of movement and freedom to
choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (order public), public health or
morals or the rights and freedoms of others, and are consistent with
the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own
country.
On the other hand, the respondents’ principal argument is that the

issue in this case involves a political question which is non-
justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not

petitioners Ferdinand E. Marcos and his family have the right to travel and
liberty of abode. Petitioners invoke these constitutional rights in vacuo
without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or
not petitioners Ferdinand E. Marcos and family have the right to return to
the Philippines and reside here at this time in the face of the determination
by the President that such return and residence will endanger national
security and public safety.
It may be conceded that as formulated by petitioners, the question is not
a political question as it involves merely a determination of what the law
provides on the matter and application thereof to petitioners Ferdinand E.
Marcos and family. But when the question is whether the two rights claimed
by petitioners Ferdinand E. Marcos and family impinge on or collide with
the more primordial and transcendental right of the State to security and
safety of its nationals, the question becomes political and this Honorable
Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to

the Philippines and reestablish their residence here? This is clearly a
justiciable question which this Honorable Court can decide.
686

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

to the Philippines and reestablish their residence here even if their return
and residence here will endanger national security and public safety? This is
still a justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and establish
their residence here? This is now a political question which this Honorable
Court can not decide for it falls within the exclusive authority and
competence of the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to

national security over individual rights. In support thereof, they cite
Article II of the Constitution, to wit:
Section 4.The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal, military, or civil service.
Section 5.The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are essential
for the enjoyment by all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and
his family from returning to the Philippines for reasons of national
security and public safety has international precedents. Rafael
Trujillo of the Dominican Republic, Anastacio Somoza, Jr. of
Nicaragua, Jorge Ubico of Guatemala, Fulgencio Batista of Cuba,
King Farouk of Egypt, Maximiliano Hernandez Martinez of El
Salvador, and Marcos Perez Jimenez of Venezuela were among the
deposed dictators whose return to their homelands was prevented by
their governments. [See Statement of Foreign Affairs Secretary Raul
S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32;

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

At the outset, we must state that it would not do to view the case
within the confines of the right to travel and the import of the
decisions of the U.S. Supreme Court in the leading cases of Kent v.
Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and Haig v.
Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed. 2d 640) which
affirmed the right to travel and recognized exceptions to the exercise
thereof, respectively.
It must be emphasized that the individual right involved is not the
right to travel from the Philippines to other countries or within the
Philippines. These are what the right to travel would normally
connote. Essentially, the right involved is the right to return to one’s
country, a totally distinct right under international law, independent
from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on
Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country,
and the right to enter one’s country as separate and distinct rights.
The Declaration speaks of the “right to freedom of movement and
residence within the borders of each state” [Art. 13(1)] separately
from the “right to leave any country, including his own, and to return
to his country.” [Art. 13(2).] On the other hand, the Covenant
guarantees the “right to liberty of movement and freedom to choose
his residence” [Art. 12(1)] and the right to “be free to leave any
country, including his own.” [Art. 12(2)] which rights may be
restricted by such laws as “are necessary to protect national security,
public order, public health or morals or the separate rights and
freedoms of others.” [Art. 12(3)] as distinguished from the “right to
enter his own country” of which one cannot be “arbitrarily
deprived.” [Art. 12(4).] It would therefore be inappropriate to
construe the limitations to the right to return to one’s country in the
same context as those pertaining to the liberty of abode and the right
to travel.
The right to return to one’s country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only of the
liberty of abode and the right to travel, but it is our 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
688

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

to travel and enjoys a different protection under the International
Covenant of Civil and Political Rights, i.e.,against being “arbitrarily
deprived” thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig,which refer to the
issuance of passports for the purpose of effectively exercising the
right to travel are not determinative of this case and are only
tangentially material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and
even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue
of whether or not there can be limitations on the right to travel in the
absence of legislation to that effect is rendered unnecessary. An
appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a
need to explain the methodology for its resolution. Our resolution of
the issue will involve a two-tiered approach. We shall first resolve
whether or not the President has the power under the Constitution, to
bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the
Constitution in Article VIII, Section 1, whether or not the President
acted arbitrarily or with grave abuse of discretion amounting to lack
or excess of jurisdiction when she determined that the return of the
Marcoses to the Philippines poses a serious threat to national interest
and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of

the three great branches of government. To recall the words of
Justice Laurel in Angara v. Electoral Commission [63 Phil. 139
(1936)], “the Constitution has blocked but with deft strokes and in
bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government.” [At 157.] Thus, the
1987 Constitution explicitly provides that “[t]he legislative power
shall be vested in the Congress of the Philippines” [Art. VI, Sec. 1],
“[t]he executive power shall be
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VOL. 177, SEPTEMBER 15, 1989 689

vested in the President of the Philippines” [Art. VII, Sec. 1], and
“[t]he judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law” [Art. VIII, Sec. 1.]
These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer
plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in
Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out “a grant of
the legislative power means a grant of all legislative power; and a
grant of the judicial power means a grant of all the judicial power
which may be exercised under the government.” [At 631-632.] If
this can be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred
members and of the judicial power which is vested in a hierarchy of
courts, it can equally be said of the executive power which is vested
in one official—the President.
As stated above, the Constitution provides that “[t]he executive
power shall be vested in the President of the Philippines.” [Art. VII,
Sec. 1]. However, it does not define what is meant by “executive
power” although in the same article it touches on the exercise of
certain powers by the President, i.e.,the power of control over all
executive departments, bureaus and offices, the power to execute the
laws, the appointing power, the powers under the commander-in-
chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign loans, the
power to enter into treaties or international agreements, the power to
submit the budget to Congress, and the power to address Congress
[Art. VII, Secs. 14-23].
The inevitable question then arises: by enumerating certain
powers of the President did the framers of the Constitution intend
that the President shall exercise those specific powers and no other?
Are these enumerated powers the breadth and scope of “executive
power”? Petitioners advance the view that the President’s powers are
limited to those specifically enumerated in the 1987 Constitution.
Thus, they assert: “The President has enumerated powers, and what
is not enumerated is impliedly denied to her. Inclusio unius est
exclusio alterius.”
690
[Memorandum for Petitioners, p. 4; Rollo p. 233.] This argument

brings to mind the institution
**
of the U.S. Presidency after which ours
is legally patterned.
Corwin, in his monumental volume on the President of the
United States grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those

who think that a constitution ought to settle everything beforehand it should
be a nightmare; by the same token, to those who think that constitution
makers ought to leave considerable leeway for the future play of political
forces, it should be a vision realized.
We encounter this characteristic of Article II in its opening words: “The
executive power shall be vested in a President of the United States of
America.” x x x. [The President: Office and Powers, 1787-1957,pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by

the different persons who held the office from Washington to the
early 1900’s, and the swing from the presidency by commission to
Lincoln’s dictatorship, he concluded that “what the presidency is at
any particular moment depends in important measure on who is
President.” [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial
Presidency:
For the American Presidency was a peculiarly personal institution. It

remained, of course, an agency of government subject to unvarying
demands and duties no matter who was President. But, more than most
agencies of government, it changed shape, intensity and ethos according to
the man in charge. Each President’s distinctive temperament and character,
his values, standards, style, his habits, expectations, idiosyncrasies,
compulsions, phobias recast the White
_______________
** The Philippine presidency under the 1935 Constitution was patterned in large measure
after the American presidency. But at the outset, it must be pointed out that the Philippine
government established under the constitutions of 1935, 1973 and 1987 is a unitary government
with general powers unlike that of the United States which is a federal government with limited
and enumerated powers. Even so, the powers of the president of the United States have through
the years grown, developed and taken shape as students of that presidency have demonstrated.
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House and pervaded the entire government. The executive branch, said
Clark Clifford, was a chameleon, taking its color from the character and
personality of the President. The thrust of the office, its impact on the
constitutional order, therefore altered from President to President. Above all,
the way each President understood it as his personal obligation to inform
and involve the Congress, to earn and hold the confidence of the electorate
and to render an accounting to the nation and posterity determined whether
he strengthened or weakened the constitutional order. [At 212-213.]
We do not say that the presidency is what Mrs. Aquino says it is or

what she does but, rather, that the consideration of tradition and the
development of presidential power under the different constitutions
are essential for a complete understanding of the extent of and
limitations to the President’s powers under the 1987 Constitution.
The 1935 Constitution created a strong President with explicitly
broader powers than the U.S. President. The 1973 Constitution
attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but
through numerous amendments, the President became even more
powerful, to the point that he was also the de facto Legislature. The
1987 Constitution, however, brought back the presidential system of
government and restored the separation of legislative, executive and
judicial powers by their actual distribution among three distinct
branches of government with provision for checks and balances.
It would not be accurate, however, to state that “executive
power” is the power to enforce the laws, for the President is head of
state as well as head of government and whatever powers inhere in
such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the
execution of any provision of law, e.g.,his power over the country’s
foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise 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
692

other words, executive power is more than the sum of specific

powers so enumerated.
It has been advanced that whatever power inherent in the

government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v. Government
of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who
between the Governor-General of the Philippines and the Legislature
may vote the shares of stock held by the Government to elect
directors in the National Coal Company and the Philippine National
Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:
... Here the members of the legislature who constitute a majority of the
“board” and “committee” respectively, are not charged with the performance
of any legislative functions or with the doing of anything which is in aid of
performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are
vested by the Organic Act in the Governor-General, it is clear that they are
not legislative in character, and still more clear that they are not judicial.
The fact that they do not fall within the authority of either of these two
constitutes logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are divided. . . . [At
202-203; italics supplied.]
We are not unmindful of Justice Holmes’ strong dissent. But in his

enduring words of dissent we find reinforcement for the view that it
would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the
Constitution:
The great ordinances of the Constitution do not establish and divide fields of
black and white. Even the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to the other. x x x.
xxx
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the distinction
between legislative and executive action with mathematical precision and
divide the branches into watertight compartments, were it ever so desirable
to do so, which I am far from believing that it is, or that the Constitution
requires. [At 210-211.]
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The Power Involved
The Constitution declares among the guiding principles that “[t]he

prime duty of the Government is to serve and protect the people”
and that “[t]he maintenance of peace and order, the protection of
life, liberty, and property, and the promotion of the general welfare
are essential for the enjoyment by all the people of the blessings of
democracy.” [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance
of peace and order, the protection of life, liberty and property, and
the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty
words. Thus, in the exercise of presidential functions, in drawing a
plan of government, and in directing implementing action for these
plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these
principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to
allow the Marcoses to return to the Philippines, the President is,
under the Constitution, constrained to consider these basic principles
in arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social
contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers of
the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution
reminds everyone that “[s]overeignty resides in the people and all
government authority emanates from them.” [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the
persons who seek to return to the country are the deposed dictator
and his family at whose door the travails of the country are laid and
from whom billions of dollars believed to be illgotten wealth are
sought to be recovered. The constitutional guarantees they invoke
are neither absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and of
694

expression, although couched in absolute terms, admits of limits and

must be adjusted to the requirements of equally important public
interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October
7, 1988].
To the President, the problem is one of balancing the general
welfare and the common good against the exercise of rights of
certain individuals. The power involved is the President’s residual

power to protect the general welfare of the people. It is founded on
the duty of the President, as steward of the people. To paraphrase
Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbidden by the Constitution or the
laws that the needs of the nation demand [SeeCorwin,supra,at 153].
It is a power borne by the President’s duty to preserve and defend
the Constitution. It also may be viewed as a power implicit in the
President’s duty to take care that the laws are faithfully executed
[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
President’s powers as protector of the peace. [Rossiter, The
American Presidency]. The power of the President to keep the peace
is not limited merely to exercising the commander-in-chief powers
in times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed
with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe
appears on the horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in any way
diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot
be said to exclude the President’s exercising as Commander-in-Chief
powers short of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial law, in
order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the
Marcoses from returning has been recognized by mem-
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bers of the Legislature, and is manifested by the Resolution

proposed in the House of Representatives and signed by 103 of its
members urging the President to allow Mr. Marcos to return to the
Philippines “as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution
and our laws.” [House Resolution No. 1342, Rollo, p. 321.] The
Resolution does not question the President’s power to bar the
Marcoses from returning to the Philippines, rather, it appeals to the
President’s sense of compassion to allow a man to come home to die

in his country.
What we are saying in effect is that the request or demand of the
Marcoses to be allowed to return to the Philippines cannot be
considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never contemplated
situations even remotely similar to the present one. It must be treated
as a matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect
general welfare. In that context, such request or demand should
submit to the exercise of a broader discretion on the part of the
President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to

determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government.” [Art. VIII, Sec. 1.] Given
this wording, we cannot agree with the Solicitor General that the
issue constitutes a political question which is beyond the jurisdiction
of the Court to decide.
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which
the Court, under previous constitutions, would have normally left to
the political departments to decide. But nonetheless there remain
issues beyond the Court’s jurisdiction the determination of which is
exclusively for the President, for
696

Congress or for the people themselves through a plebiscite or

referendum. We cannot, for example, question the President’s
recognition of a foreign government, no matter how premature or
improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary is
totally undeserving of the grant. Nor can we amend the Constitution
under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our
determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by petitioners
show that the framers intended to widen the scope of judicial review
but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved,
the Constitution limits the determination to whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a
matter which by its nature or by law is for the latter alone to decide.
In this light, it would appear clear that the second paragraph of
Article VIII, Section 1 of the Constitution, defining “judicial
power,” which specifically empowers the courts to determine
whether or not there has been a grave abuse of discretion on the part
of any branch or instrumentality of the government, incorporates in
the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-
33964, December 11, 1971, 42 SCRA 448] that:
Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying our
system of government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is not absolute.
What is more, it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the suspension of the
privilege, but only if and when he acts within the sphere alloted to him by
the Basic Law, and the authority to determine whether or not he has so acted
is vested in the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme.
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In the exercise of such authority, the function of the Court is merely to

check—not to supplant—the Executive, or to ascertain merely whether he
has gone beyond the constitutional limits of his jurisdiction, not to exercise
the power vested in him or to determine the wisdom of his act. . . . [At 479-
480.]
Accordingly, the question for the Court to determine is whether or

not there exist factual bases for the President to conclude that it was
in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has
acted, or acts, arbitrarily or that she has gravely abused her
discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their
oral arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the Armed Forces of the

Philippines and the National Security Adviser, wherein petitioners
and respondents were represented, there exist factual bases for the
President’s decision.
The Court cannot close its eyes to present realities and pretend
that the country is not besieged from within by a 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 camel’s back.
With these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the
return of the Marcoses poses a serious threat to the national interest
and welfare and in prohibiting their return.
698

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

Philippines will cause the escalation of violence against the State,
that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre-emptive action
against threats to its existence if, though still nascent, they are
perceived as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The preservation of
the State—the fruition of the people’s sovereignty—is an obligation
in the highest order. The President, sworn to preserve and defend the
Constitution and to see the faithful execution the laws, cannot shirk
from that responsibility.
We cannot also lose sight of the fact that the country is only now
beginning to recover from the hardships brought about by the
plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the

Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which stifles
and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting precarious
state of our economy is of common knowledge and is easily within
the ambit of judicial notice.
The President has determined that the destabilization caused by
the return of the Marcoses would wipe away the gains achieved
during the past few years and lead to total economic collapse. Given
what is within our individual and common knowledge of the state of
the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the
President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his
family at the present time and under present circumstances poses a
serious threat to national interest and welfare and in prohibiting their
return to the Philippines, the
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VOL. 177, SEPTEMBER 15, 1989 699

instant petition is hereby DISMISSED.

SO ORDERED.
Narvasa, Melencio-Herrera, Gancayco, Griño-Aquino, Me-

dialdea and Regalado, JJ., concur.
Fernan, C.J., See separate concurring opinion.
Gutierrez, Jr., Cruz, Padilla and Sarmiento, JJ., See dissent.
Paras, J., I dissent in a separate opinion.
Feliciano, J., On leave—voted 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
1
a
steaming 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 well-written ponenciaof Mme. Justice Irene R. Cortés.
Presidential powers and prerogatives are not fixed but fluctuate.
They are not derived solely from a particular constitutional clause or
article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law. History and
time-honored principles of constitutional law have
_______________
1 From the speech “Restrictions on Human Rights—States 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.
700

conceded to the Executive Branch certain powers in times of crisis

or grave and imperative national emergency. Many terms are applied
to these powers: “residual,” “inherent,” “moral,” “implied,”
“aggregate,” “emergency.” Whatever they may be called, the fact is
that these powers exist, as they must if the governance function of
the Executive Branch is to be carried out effectively and efficiently.
It is in this context that the power of the President to allow or
disallow the Marcoses to return to the Philippines should be viewed.
By reason of its impact on national peace and order in these
admittedly critical times, said question cannot be withdrawn from
the competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and
children cannot but pose a clear and present danger to public order
and safety. One needs only to recall the series of destabilizing
actions attempted by the so-called Marcos loyalists as well as the
ultra-rightist groups during the EDSA Revolution’s aftermath to
realize this. The most publicized of these offensives is the Manila
Hotel incident which occurred barely five (5) months after the
People’s Power Revolution. Around 10,000 Marcos supporters,
backed by 300 loyalist soldiers led by Brigadier General Jose Zumel
and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to
witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the
citizens engendered by this event subsided only upon the eventual
surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe
Drive and Camp Aguinaldo incidents. Military rebels waged
simultaneous offensives in different parts of Metro Manila and

Sangley Point in Cavite. A hundred rebel soldiers took over Channel
7 and its radio station DZBB. About 74 soldier rebels attacked
Villamor Air Base, while another group struck at Sangley Point in
Cavite and held the 15th Air Force Strike wing commander and his
deputy hostage. Troops on board several vehicles attempted to enter
Gate 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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VOL. 177, SEPTEMBER 15, 1989 701

failed to convince their incarcerated members to unite in their cause,

had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which
almost toppled the Aquino Government? Launched not by Marcos
loyalists, but by another ultra-rightist group in the military led by
Col. Gregorio “Gringo” Honasan who remains at large to date, this
most serious attempt to wrest control of the government resulted in
the death of many civilians.
Members of the so-called Black Forest Commando were able to
cart away high-powered firearms and ammunition from the Camp
Crame Armory during a raid conducted in June 1988. Most of the
group members were, however, captured in Antipolo, Rizal. The
same group was involved in an unsuccessful plot known as Oplan
Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the
attempt of a group named CEDECOR to mobilize civilians from
nearby provinces to act as blockading forces at different Metro
Manila areas for the projected link-up of Marcos military loyalist
troops with the group of Honasan. The pseudo “people power”
movement was neutralized thru checkpoints set up by the authorities
along major road arteries where the members were arrested or forced
to turn back.
While not all of these disruptive incidents may be traced directly
to the Marcoses, their occurrence militates heavily against the
wisdom of allowing the Marcoses’ return. Not only will the
Marcoses’ presence embolden their followers toward similar actions,
but any such action would be seized upon as an opportunity by other
enemies of the State, such as the Communist Party of the Philippines
and the NPA’s, the Muslim secessionists and extreme rightists of the
RAM, to wage an offensive against the government. Certainly, the
state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to

its safety from arising.
Apparently lost amidst the debate on whether or not to allow the
Marcoses to return to the Philippines is one factor, which albeit, at
first blush appears to be extra legal, constitutes a valid justification
for disallowing the requested return. I refer to the public pulse. It
must be remembered that the ouster of
702

the Marcoses from the Philippines came about as an unexpected, but

certainly welcomed, result of the unprecedented “people’s power”
revolution. Millions of our people braved military tanks and
firepower, kept vigil, prayed, and in countless manner and ways
contributed time, effort and money to put an end to an evidently
untenable claim to power of a dictator. The removal of the Marcoses
from the Philippines was a moral victory for the Filipino people; and
the installation of the present administration, a realization of and
obedience to the people’s will.
Failing in legal arguments for the allowance of the Marcoses’
return, appeal is being made to sympathy, compassion and even
Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and
precious to gamble away on purely compassionate considerations.
Neither could public peace, order and safety be sacrificed for an
individual’s wish to die in his own country. Verily in the balancing
of interests, the scales tilt in favor of presidential prerogative, which
we do not find to have been gravely abused or arbitrarily exercised,
to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., Dissenting Opinion
“The Constitution xxx is a law for rulers and people, equally in war
and in peace, and covers with the shield of its protection all classes
of men, at all times, and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the
wit of man than that any of its provisions can be suspended during
any of the great exigencies of government.” (Ex Parte Milligan, 4
Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring
words of Ex Parte Milligan as self-evident truth. But faced with a
hard and delicate case, we now hesitate to give substance to their
meaning. The Court has permitted a basic freedom enshrined in the
Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of

liberty and the same guarantee of freedom for both unloved and
despised persons on one hand and the rest who are not so
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VOL. 177, SEPTEMBER 15, 1989 703

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
704

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

“It is a well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal with such
questions has been conferred on the courts by express constitutional or
statutory provisions. It is not so easy, however, to define the phrase political
question, nor to determine what matters fall within its scope. It is frequently
used to designate all questions that 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 Tañada v. Cuenco (103 Phil. 1051,

1066 [1957]), as follows:
“‘In short, the term ‘political question’ connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other words, in
the language of Corpus Juris Secundum (supra), it refers to ‘those questions
which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government. It
is concerned with issues dependent upon the wisdom, not legality, of a
particular measure.”
The most often quoted definition of political question was made by

Justice William J. Brennan, Jr., who penned the decision of the
United States Supreme Court in Baker v. Carr (369 US 186, 82, S.
Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political
question as formulated in Baker v. Carrare:
“It is apparent that several formulations which vary slightly according to the
settings in which the questions arise may describe a
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VOL. 177, SEPTEMBER 15, 1989 705

political question, which identifies it as essentially a function of the

separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court’s
undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or potentiality
of embarassment from multifarious pronouncements by various departments
on one question.”
For a political question to exist, there must be in the Constitution a

power vested exclusively in the President or Congress, the exercise
of which the court should not examine or prohibit. A claim of
plenary or inherent power against a civil right which claim is not
found in a specific provision is dangerous. Neither should we
validate a roving commission allowing public officials to strike
where they please and to override everything which to them
represents evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the
Constitution which commits or vests the determination of the
question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself
does not exist because no law has been enacted specifying the
circumstances when the right may be impaired in the interest of
national security or public safety. The power is in Congress, not the
Executive.
The closest resort to a textually demonstrable constitutional
commitment of power may be found in the commander-in-chief
clause which allows the President to call out the armed forces in
case of lawless violence, invasion or rebellion and to suspend the
privilege of the writ of habeas corpus or proclaim martial law in the
event of invasion or rebellion, when the public safety requires it.
There is, however, no showing, not even a claim that the
followers of former President Marcos are engaging in rebellion or
that he is in a position to lead them. Neither is it claimed that there is
a need to suspend the privilege of the writ of habeas
706

corpus or proclaim martial law because of the arrival of Mr. Marcos

and his family. To be sure, there may be disturbances but not of a
magnitude as would compel this Court to resort to a doctrine of non-

justiceability and to ignore a plea for the enforcement of an express
Bill of Rights guarantee.
The respondents themselves are hardpressed to state who or what
constitutes a Marcos “loyalist.” The constant insinuations that the
“loyalist” group is heavily funded by Mr. Marcos and his cronies
and that the “loyalists” engaging in rallies and demonstrations have
to be paid individual allowances to do so constitute the strongest
indication that the hard core “loyalists” who would follow Marcos
right or wrong are so few in number that they could not possibly
destabilize the government, much less mount a serious attempt to
overthrow it.
Not every person who would allow Mr. Marcos to come home
can be tagged a “loyalist.” It is in the best of Filipino customs and
traditions to allow a dying person to return to his home and breath
his last in his native surroundings. Out of the 103 Congressmen who
passed the House resolution urging permission for his return, there
are those who dislike Mr. Marcos intensely or who suffered under
his regime. There are also many Filipinos who believe that in the
spirit of national unity and reconciliation Mr. Marcos and his family
should be permitted to return to the Philippines and that such a
return would deprive his fanatic followers of any further reason to
engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and
his family solely in the light of the constitutional guarantee of liberty
of abode and the citizen’s right to travel as against the respondents’
contention that national security and public safety would be
endangered by a grant of the petition.
Apart from the absence of any text in the Constitution
committing the issue exclusively to the President, there is likewise
no dearth of decisional data, no unmanageable standards which
stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty
of abode and of changing the same within the limits prescribed by
law may be impaired only upon a lawful order of a court.Not by an
executive officer. Not even by the President. Section 6 further
provides that the right to travel, and this
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VOL. 177, SEPTEMBER 15, 1989 707

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 citizen’s right to move
from one part of the country to another or from the Philippines to a
foreign country or from a foreign country to the Philippines. The

laws cited by the Solicitor General—immigration, health,
quarantine, passports, motor vehicle, destierro, probation, and parole
—are all inapplicable insofar as the return of Mr. Marcos and family
is concerned. There is absolutely no showing how any of these
statutes and regulations could serve as a basis to bar their coming
home.
There is also no disrespect for a Presidential determination if we
grant the petition. We would simply be applying the Constitution, in
the preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate.
Significantly, the President herself has stated that the Court has the
last word when it comes to constitutional liberties and that she
would abide by our decision.
As early as 1983, it was noted that this Court has not been very
receptive to the invocation of the political question doctrine by
government lawyers. (See Morales, Jr. v. Ponce Enrile, 121 SCRA
538 [1983]).
Many of those now occupying the highest positions in the
executive departments, Congress, and the judiciary criticized this
Court for using what they felt was a doctrine of convenience,
expediency, utility or subservience.Every major challenge to the acts
of petitioner Ferdinand E. Marcos under his authoritarian regime—
the proclamation of martial law, the ratification of a new
constitution, the arrest and detention of “enemies of the State”
without charges being filed against them, the dissolution of
Congress and the exercise by the President of legislative powers, the
trial of civilians for civil offenses by military tribunals, the seizure
of some of the country’s biggest corporations, the taking over or
closure of newspaper offices, radio and television stations and other
forms of media, the proposals to amend the Constitution, etc.—was
invariably met by an invocation that the petition involved a political
question. It is indeed poetic justice that the political question
708

doctrine so often invoked by then President Marcos to justify his

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

Constitution provides:
“Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.”
This new provision was enacted to preclude this Court from using
the political question doctrine as a means to avoid having to make
decisions simply because they are too controversial, displeasing to
the President or Congress, inordinately unpopular, or which may be
ignored and not enforced.
The framers of the Constitution believed that the free use of the
political question doctrine allowed the Court during the Marcos
years to fall back on prudence, institutional difficulties, complexity
of issues, momentousness of consequences or a fear that it was
extravagantly extending judicial power in the cases where it refused
to examine and strike down an exercise of authoritarian power.
Parenthetically, at least two of the respondents and their counsel
were among the most vigorous critics of Mr. Marcos (the main
petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its
mandate from refusing to invalidate a political use of power through
a convenient resort to the political question doctrine. We are
compelled to decide what would have been non-justiceable under
our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions
which we may refuse to resolve. There are still some political
questions which only the President, Congress, or a plebiscite may
decide. Definitely, the issue before us is not one
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VOL. 177, SEPTEMBER 15, 1989 709

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 General’s offer that the military give
us a closed door factual briefing with a lawyer for the petitioners and
a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice
Vicente Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592
[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
710

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

judging the suit. After all is said and done, the attempt by this Court to
determine whether or not the President acted arbitrarily in suspending the
writ was a useless and futile exercise.
“There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the
Executive Branch. For it is possible that the suspension of the writ lacks
popular support because of one reason or another. But when this Court
declares that the suspension is not arbitrary (because it cannot do otherwise
upon the facts given to it by the Executive Branch) it in effect participates in
the decision-making process. It assumes a task which it is not equipped to
handle; it lends its prestige and credibility to an unpopular act.”
The other method is to avail of judicial notice. In this particular

case, judicial notice would be the only basis for determining the
clear and present danger to national security and public safety. The
majority of the Court has taken judicial notice of the Communist
rebellion, the separatist movement, the rightist conspiracies, and
urban terrorism. But is it fair to blame the present day Marcos for
these incidents? All these problems are totally unrelated to the
Marcos of today and, in fact, are led by people who have always
opposed him. If we use the problems of Government as excuses for
denying a person’s right to come home, we will never run out of
justifying reasons. These problems or others like them will always
be with us.
Significantly, we do not have to look into the factual bases of the
ban Marcos policy in order to ascertain whether or not the
respondents acted with grave abuse of discretion. Nor are we forced
to fall back upon judicial notice of the implications of a Marcos
return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the
President that a clear and present danger to national security and
public safety will arise if Mr. Marcos and his family are allowed to
return to the Philippines. It was only after the present petition was
filed that the alleged danger to national security and public safety
conveniently surfaced in the respondents’ pleadings. Secondly,
President Aquino herself limits the reason for the ban Marcos policy
to—(1) national welfare and interest and (2) the continuing need to
preserve the gains achieved in terms of recovery and stability. (See
page 7,
711
VOL. 177, SEPTEMBER 15, 1989 711

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 President’s original position “that it is
not in the interest of the nation that Marcos be allowed to return at
this time” has not changed. (Manila Times, front page, February 7,
1989). On February 11, 1989, the President is reported to have stated
that “considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past
three years” in justifying her firm refusal to allow the return of Mr.
Marcos despite his failing health. (Daily Globe, front page, February
15, 1989). “Interest of the nation,” “national good,” and “preserving
economic and political gains,” cannot be equated with national
security or public order. They are too generic and sweeping to serve
as grounds for the denial of a constitutional right. The Bill of Rights

commands that the right to travel may not be impaired except on the
stated grounds of national security, public safety, or public health
and with the added requirement that such impairment must be “as
provided by law.” The constitutional command cannot be negated by
mere generalizations.
There is an actual rebellion not by Marcos followers but by the
New Peoples’ Army. Feeding as it does on injustice, ignorance,
poverty, and other aspects at underdevelopment, the Communist
rebellion is the clearest and most present danger to national security
and constitutional freedoms. Nobody has suggested that one way to
quell it would be to catch and exile its leaders, Mr. Marcos himself
was forced to flee the country because of “peoples’ power.” Yet,
there is no move to arrest and exile the leaders of student groups,
teachers’ organizations, peasant and labor federations, transport
workers, and government unions whose threatened mass actions
would definitely endanger national security and the stability of
government. We fail to see how Mr. Marcos could be a greater
danger.
The fear that Communist rebels, Bangsa Moro secessionists, the
Honasan ex-soldiers, the hard core loyalists, and other
712

dissatisfied elements would suddenly unite to overthrow the

Republic should a dying Marcos come home is too speculative and
unsubstantial a ground for denying a constitutional right. It is not
shown how extremists from the right and the left who loathe each
other could find a rallying point in the coming of Mr. Marcos.
The “confluence theory” of the Solicitor General or what the
majority calls “catalytic effect,” which alone sustains the claim of
danger to national security is fraught with perilous implications. Any
difficult problem or any troublesome person can be substituted for
the Marcos threat as the catalysing factor. The alleged confluence of
NPAs, secessionists, radical elements, renegade soldiers, etc., would
still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of
rebel forces and proceed to ride roughshod over civil liberties in the
name of national security. Today, a passport is denied. Tomorrow, a
newspaper may be closed. Public assemblies may be prohibited.
Human rights may be violated. Yesterday, the right to travel of
Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed.
Today, it is the right of Mr. Marcos and family. Who will be
tomorrow’s pariahs? I deeply regret that the Court’s decision to use
the political question doctrine in a situation where it does not apply

raises all kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff
of the Armed Forces, has personally assured the Court that a
rebellion of the above combined groups will not succeed and that the
military is on top of the situation. Where then is the clear danger to
national security? The Court has taken judicial notice of something
which even the military denies. There would be severe strains on
military capabilities according to General de Villa. There would be
set-backs in the expected eradication of the Communist threat. There
would be other serious problems but all can be successfully
contained by the military. I must stress that no reference was made
to a clear and present danger to national security as would allow an
overriding of the Bill of Rights.
The Solicitor General’s argument that the failure of Congress to
enact a statute defining the parameters of the right to travel and to
freely choose one’s abode has constrained the President
713
VOL. 177, SEPTEMBER 15, 1989 713

to fill in the vacuum, is too reminiscent of Amendment No. 6 of the

martial law Constitution to warrant serious consideration.
Amendment No. 6 allowed Marcos to issue decrees whenever the
Batasang Pambansa failed or was unable to act adequately on any
matter for any reason that in his judgment required immediate
action. When the Bill of Rights provides that a right may not be
impaired except in the interest of national security, public safety, or
public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the
inaction of Congress does not give reason for the respondents to
assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American
federal courts does not obstruct us from ruling against an
unconstitutional assertion of power by Philippine officials. Let the
United States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a
transpacific flight. The agony of traveling while hooked up to
machines which have taken over the functions of his heart, lungs,
and kidneys may hasten his death. The physical condition of Mr.
Marcos does not justify our ignoring or refusing to act on his claim
to a basic right which is legally demandable and enforceable. For his
own good, it might be preferable to stay where he is. But he invokes
a constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not
be withheld if to do so would run counter to a constitutional
guarantee. Besides, the petitioners are not asking for passports and
nothing else. Any travel documents or any formal lifting of the
Marcos ban as would allow international airlines to sell them tickets
would suffice.
With all due respect for the majority opinion, I disagree with its
dictum on the right to travel. I do not think we should differentiate
the right to return home from the right to go abroad or to move
around in the Philippines. If at all, the right to come home must be
more preferred than any other aspect of the right to travel. It was
precisely the banning by Mr. Marcos of the right to travel by
Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other
“undesirables” and “threats to national security” during that
unfortunate period which led the framers
714

of our present Constitution not only to re-enact but to strengthen the

declaration of this right. Media often asks, “what else is new?” I
submit that we now have a freedom loving and humane regime. I
regret that the Court’s decision in this case sets back the gains that
our country has achieved in terms of human rights, especially human
rights for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus
has disclosed a list of former dictators who were barred by their
successors from returning to their respective countries. There is no
showing that the countries involved have constitutions which
guarantee the liberty of abode and the freedom to travel and that
despite such constitutional protections, the courts have validated the
“ban a return” policy. Neither is it shown that the successors of the
listed dictators are as deeply committed to democratic principles and
as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former
President are conducting a campaign to sow discord and to divide
the nation. Opposition to the government no matter how odious or
disgusting is, however, insufficient ground to ignore a constitutional
guarantee.
During the protracted deliberations on this case, the question was
asked—Is the Government helpless to defend itself against a threat
to national security? Does the President have to suspend the
privilege of the writ of habeas corpus or proclaim martial law? Can
she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos
arrested and tried in court. The Government has more than ample
powers under existing law to deal with a person who transgresses
the peace and imperils public safety. But the denial of travel papers
is not one of those powers because the Bill of Rights says so. There
is no law prescribing exile in a foreign land as the penalty for
hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., Dissenting Opinion
It is my belief that the petitioner, as a citizen of the Philippines, is

entitled to return to and live—and die—in his own
715
VOL. 177, SEPTEMBER 15, 1989 715

country. I say this with a heavy heart but say it nonetheless. That
conviction is not diminished one whit simply because many believe
Marcos to be beneath contempt and undeserving of the very liberties
he flouted when he was the absolute ruler of this land.
The right of the United States government to detain him is not
the question before us, nor can we resolve it. The question we must
answer is whether or not, assuming that Marcos is permitted to leave
Hawaii (which may depend on the action we take today), the
respondents have acted with grave abuse of discretion in barring him
from his own country.
My reluctant conclusion is that they have, absent the proof they
said they were prepared to offer, but could not, that the petitioner’s
return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27, 1989,
asked the Solicitor General if the government was prepared to prove
the justification for opposing the herein petition, i.e., that it had not
acted arbitrarily. He said it was. Accordingly, the Court, appreciating
the classified nature of the information expected, scheduled a
closed-door hearing on July 25, 1988. The Solicitor General and
three representatives from the military appeared for the respondents,
together with former Senator Arturo M. Tolentino, representing the
petitioners.
In about two hours of briefing, the government failed dismally to
show that the return of Marcos dead or alive would pose a threat to
the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and
economic destabilization without any single piece of concrete
evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion
that there exist “factual bases for the President’s decision” to bar
Marcos’s return. That is not my recollection of the impressions of
the Court after that hearing.
In holding that the President of the Philippines has residual

powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and
reinstating the discredited doctrine announced in Planas v. Gil (67
Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit
716

rather than expand presidential powers, as a reaction to the excesses

of the past dictatorship.
I can only repeat Justice Black’s wry observation in the Steel
Seizure Case (343 U.S. 579) that if it was true that the President had
been granted the totality of executive power, “it is difficult to see
why our forefathers bothered to add several specific items, including
some trifling ones, . . . I cannot accept the view that this clause is a
grant in bulk of all conceivable executive power but regard it as an
allocation to the presidential office of the generic powers thereafter
stated.”
I have no illusion that the stand I am taking will be met with
paeans of praise, considering that Marcos is perhaps the most
detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am
not swayed by what Justice Cardozo called the “hooting throng” that
may make us see things through the prisms of prejudice. I bear in
mind that when I sit in judgment as a member of this Court, I must
cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the
basis only of the established facts and the applicable law and not of
wounds that still fester and scars that have not healed. And not even
of fear, for fear is a phantom. That phantom did not rise when the
people stood fast at EDSA—against the threat of total massacre—in
defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more
than three decades as a professor of Constitutional Law. These
principles have not changed simply because I am now on the Court
or a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back
to the Philippines against the prohibitions of the government then,
Marcos is entitled to the same right to travel and the liberty of abode
that his adversary invoked. These rights are guaranteed by the
Constitution to all individuals, including the patriot and the
homesick and the prodigal son returning, and tyrants and charlatans
and scoundrels of every stripe.
I vote to grant the petition.
717
VOL. 177, SEPTEMBER 15, 1989 717

PARAS, J., Dissenting Opinion
I dissent. Already, some people refer to us as a nation without

discipline. Are we ready to be also called a society without
compassion?
The issue as to whether or not former President Ferdinand E.
Marcos should be allowed to return to the Philippines may be
resolved by answering two simple questions: Does he have the right
to return to his own country?; and should national safety and
security deny him this right?
There is no dispute that the former President is still a Filipino
citizen and both under the Universal Declaration of Human Rights
and the 1987 Constitution of the Philippines, he has the right to
return to his own country except only if prevented by the demands of
national safety and national security.
Our Armed Forces have failed to prove this danger. They are
bereft of hard evidence, and all they can rely on is sheer speculation.
True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who
had been ousted from this country by popular will, can arouse an
entire country to rise in morbid sympathy for the cause he once
espoused.
It is therefore clear to me, all other opinions to the contrary
notwithstanding, that the former President should be allowed to
return to our country under the conditions that he and the members
of his family be under house arrest in his hometown in Ilocos Norte,
and should President Marcos or any member of his family die, the
body should not be taken out of the municipality of confinement and
should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for
fundamental human rights, for national discipline, and for human
compassion.
PADILLA, J., Dissenting Opinion
I dissent. As I see it, the core issue in this case is, which right will
prevail in the conflict between the right of a Filipino, Ferdinand E.
Marcos, to return to the Philippines, and the right
718

of the Philippine Government to bar such return in the interest of

national security and public safety. In this context, the issue is
clearly justiciable involving, as it does, colliding assertions of
individual right and governmental power. Issues of this nature more
than explain why the 1986 Constitutional Commission, led by the
illustrious former Chief Justice Roberto Concepcion, incorporated in
the 1987 Constitution, the new provision on the power of Judicial
Review, viz:
“Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable,and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.” Article VIII, Section 1, par.
2; (italics supplied)
Mr. Marcos invokes in his favor the specific and precise

constitutional right of every Filipino to travel which, in the language
of the Constitution, shall not be impaired “except in the interest of
national security, public safety, or public health, as may be provided
by law” (Art. III, Sec. 6). That the right to travel comprises the right
to travel within the country, to travel out of the country and to return
to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question
arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.
Petitioners contend that, in the absence of restricting
legislation,the right to travel is absolute. I do not agree. It is my
view that, with or without restricting legislation, the interest of
national security, public safety or public health can justify and even
require restrictions on the right to travel, and that the clause “as may
be provided by law” contained in Article III, Section 6 of the 1987
Constitution merely declares a constitutional leave or permission for
Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not,
therefore, accept the petitioners’ submission that, in the absence of
enabling legislation, the Philippine Government is powerless to
restrict travel even when such restriction is demanded by national
security, public safety or public health. The power of the State, in
particu-
719
VOL. 177, SEPTEMBER 15, 1989 719

lar cases, to restrict travel of its citizens finds abundant support in

the police power of the State, which may be exercised to preserve
and maintain government as well as promote the general welfare of
the greatest number of people.
And yet, the power of the State, acting through a government in
authority at any given time, to restrict travel, even if founded on
police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino,
invoking1 a specific constitutional 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.
720

Deteriorating political, social, economic or exceptional conditions, if

any, are2
not to 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 particular4
sense
of 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. 175-204.
3 P. Hassan, The Word “Arbitrary” as used in the Universal Declaration of Human
Rights: “Illegal or Unjust”, 10 Harv. Int. L.J., p. 225 (1969).
4 F.C. Newman and K. Vasak, Civil and Political Rights, The International
Dimensions of Human Rights, pp. 135-166.
721
VOL. 177, SEPTEMBER 15, 1989 721

to me, is its clearly pressing and demandable duty to the

Constitution.
During the oral arguments in this case, I asked the Solicitor

General how one could validly defend the right of former Senator
Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in
1983 and, at the same time, credibly deny the right of Mr. Marcos,
also a Filipino, to return to the Philippines in 1989. I still have not
found a satisfactory answer to that question. Instead, it has become
clearer by the day that the drama today is the same drama in 1983
with the only difference that the actors are in opposite roles, which
really makes one hope, in the national interest, that the mistake in
1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely
nothing, personal, political or otherwise, the following are the
cogent and decisive propositions in this case—
5
1. Mr. Marcos is a Filipino and, as such, entitled to return to,
die and be buried in this country;
2. respondents have not shown any “hard evidence” or
convincing proof why his right as a Filipino to return
should be denied him. All we have are general conclusions
of “national security” and “public safety” in avoidance of a
specific demandable and enforceable constitutional and
basic human right to return;
3. the issue of Marcos’ return to the Philippines, perhaps more
than any issue today, requires of all members of the Court,
in what appears to be an extended political contest, the
“cold neutrality of an impartial judge.” It is only thus that
we fortify the independence of this Court, with fidelity, not
to any person, party or group but to the Constitution and
only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
_______________
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.
722

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 1
prohibit the Marcoses from returning 2
to the
Philippines.” I therefore take exception to allusions anent 3
“the
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 one’s country,”
pitted against “the right of travel and freedom of abode”, and their
supposed distinctions under international law, as if such distinctions,
under international law, in truth and in fact exist. There is only one
right involved here, whether under municipal or international law:
the right of travel, whether within one’s own country, or to another,
and the right to return thereto. The Constitution itself makes no
distinctions; let, then, no one make a distinction. Ubi lex non
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 except in the interest of4
national security, public safety, or public health, as may be provided by law.
_______________
1 Decision, 4.
2 Seesupra,1-4.
3 Supra,2.
4 CONST., art. III, sec. 6.
723
VOL. 177, SEPTEMBER 15, 1989 723

The majority says, with ample help from American precedents, that
the President is possessed of the power, thus:
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers
of the President, it maintains intact what is traditionally considered
as within the scope of “executive power.” Corollarily, the powers of
the President cannot be said to be limited only to the specific powers

enumerated in the Constitution. In other words, executive
5
power 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 the6 people and
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 President’s residual power to protect the general
welfare of the people. It is founded on the duty of the President, as steward
of the people. To paraphrase Theodore Roosevelt, it is not only the power of
the President but also his duty to do anything not 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 President’s duty to preserve and
defend the
_______________
5 Decision, supra, 18; emphasis in the original.

6 Supra,20-21.
724

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

duty to take care that the laws are faithfully executed [See Hyman, The
American President, where the author advances the view that an allowance
of discretionary power
7
is unavoidable 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 8boundaries 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 President’s plenitude of
powers, as provided in the Constitution, or by sheer constitutional
implication, prevail over express constitutional commands.
“Clearly,” so I borrow J.B.L. Reyes, in his own right, a titan in the
field of public law, “this argument . . . rests . . . not upon the 9text 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 same—other
10
than what it explicitly says already
11
(“limits prescribed by law” or “upon lawful order of the court” )—
the
_______________
7 Supra,21-22.
* But see Cruz, J., Dissenting.
8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
9 Republic v. Quasha, No. L-30299, August 17, 1972, 46 SCRA 160, 169.
10 CONST.,supra.
11 Supra.
725
VOL. 177, SEPTEMBER 15, 1989 725

Charter could have specifically declared so. As it is, the lone

deterrents to the right in question are: (1) decree of statute, or (2)
lawful judicial mandate. Had the Constitution intended a third
exception, that is, by Presidential initiative, it could have so averred.
It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial,
and executive processes.
Obviously, none of the twin legal bars exist. There is no law
banning the Marcoses from the country; neither is there any court
decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to

travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon
lawful order of the court, or when necessary
12
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 in13 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”,
14
forced relocations, or the establishment of free-fire
zones.
The new Constitution, however, so it clearly appears, has
divested the Executive’s implied power. And, as it so appears, the 15
right may be impaired only “within the limits provided by law.”
The President is out of the picture.
Admittedly, the Chief Executive
16
is the “sole”
17
judge of all matters
affecting national security and foreign affairs; the Bill of Rights—
precisely, a form of check against excesses of
_______________
12 CONST. (1973), art. IV, sec. 5.

13 Supra.
14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES, 263 (1987 ed.)
15 CONST. (1987), art. III, sec. 6, supra.
16 See supra, art. VII, sec. 18.
17 See Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA
17.
726

officialdom—is, in this case, a formidable barrier against

Presidential action. (Even on matters of State security, this
Constitution prescribes limits to Executive’s powers as
Commanderin-Chief.)
Second: Assuming,ex hypothesi, that the President may legally
act, the question that emerges is: Has it been proved that Marcos, or
his return, will, in fact, interpose a threat to the “national security,
public safety, or public health?” What appears in the records are
vehement insistences that Marcos does pose a threat to the national
good—and yet, at the same time, we have persistent claims, made by
the military top brass during the lengthy closed-door hearing on July
25, 1989, that “this Government will not fall” should the former first
family in exile step on Philippine soil. Which is which?
At any rate, it is my opinion that we can not leave that
determination solely to the Chief Executive. The Court itself 18must
be content that the threat is not only clear, but more so, present.
That the President “has 19
the obligation 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 chinks in our political armor. It also flies
in the face of claims, so confidently asserted, that “this Government
will not fall” even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the
henchmen, trusted allies, implementors of martial law, and pathetic
parasites of the ex-first couple are, in fact, in the Government, in the
comfort of its offices, and or at the helm of its key agencies. Let us
not, therefore, joke ourselves of moral factors warranting the
continued banishment of Marcos. Morality is the last refuge of the
self-righteous.
Third: The problem is not of balancing 20
the general 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. L-33964, 33965, 33973, 33982, 34004, 34013,
34039, 34265, and 34339, December 11, 1971, 42 SCRA 448, 480.
19 Decision,supra, 21.
20 Supra.
727
VOL. 177, SEPTEMBER 15, 1989 727

surmises of possibilities, has been shown to justify the “balancing

act” referred to. Worse, these conjectures contradict contentions that
as far as Philippine society is concerned, Marcos is “history”.
The power of the President, so my brethren declaim, “calls
21
for
the exercise of the President’s power as protector of peace.”
This is the self-same falsehood Marcos foisted on the Filipino
people to justify the authoritarian rule. It also means that we are no
better than he was.
That “[t]he power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in
times of emergency or to leading 22
the State against external and
internal threats to its existence,” is a bigger fantasy: It not only
summons the martial law decisions of pre-“EDSA” (especially with
respect to the detestable Amendment No. 6), it is inconsistent with

the express provisions of the commander-in-chief clause of the 1987
Charter, a Charter that has perceptibly
23
reduced the Executive’s
powers vis-a-vis its 1973 counterpart.
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 son’s only “offense” was that he openly and
unabatedly criticized the dictator, his associates, and his military
machinery. He would pay dearly for it; he was arrested and detained,
without judicial warrant or decision, for seven months and seven
days. He was held incommunicado a greater part of the time, in the
military stockade of Camp Crame. In his last week in detention, he
was, grudgingly, hospitalized (prison hospital) and confined for
chronic asthma. The deplorable conditions of his imprisonment
exacerbated his
_______________
21 Supra.
22 Supra,22.
23 See CONST. (1987), art. VII, sec. 18, supra.
** Abraham (“Ditto”) Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian
(1975-1976), official student organ of the University of the Philippines. He was
detained in the military stockade for common criminals from January to August,
1976.
728

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
24
house arrest, 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 Provincial Fiscal
of Rizal. It had to take the events at “EDSA” to set them free from
house arrest and these political offenses. I am for Marcos’ return not
because I have a score to settle with him. Ditto’s death or my arrest
are scores that can not be settled.
I feel the ex-President’s death abroad (presented in the dailies as
“imminent”) would leave him “unpunished” for his crimes to
country and countrymen. If punishment is due, let this leadership
inflict it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the
human right of travel and movement and the liberty of
_______________
24 SPI No. 79-347 (“For: Violation of Presidential Decree No. 90 and Article 142
of the Revised Penal Code, as amended”—The Judge Advocate General’s Office,
AFP), Special Civil Action, G.R. No. 54180, Diosdado Macapagal, Rogaciano M.
Mercado, Manuel A. Concordia, and Abraham F. Sarmiento, Petitioners, vs. The
Preliminary Investigating Panel in SPI No. 79-347 [Hamilton B. Dimaya, Brigadier
General, AFP, The Judge Advocate General, Chairman; Leon O. Ridao, Colonel,
JAGS (GSC), Deputy Judge Advocate General, Member; and Amor B. Felipe,
Colonel, JAGS (GSC) Executive Officer, Member], and the Minister of National
Defense, Respondents—Supreme 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 man’s “capacity” “to stir trouble”. Now that the
shoe is on the other foot, let no more of human rights violations be
repeated against any one, friend or foe. In a democratic framework,
there is no such thing as getting even.
The majority started this inquiry on the question of power. I hold
that the President, under the present Constitution and existing laws,
does not have it. Mandamus, I submit, lies.
Petition dismissed.
Note.—The exercise of even the preferred freedoms of speech

and of expression, although couched in absolute terms, admits of
limits and must be adjusted to the requirements of equally important
public interests. (Zaldivar vs. Sandiganbayan, G.R. Nos. 79690-707,
Oct. 7, 1988.)
——o0o——
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Marcos vs. Manglapus

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8/12/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 177

668 SUPREME COURT REPORTS ANNOTATED

FERDINAND E. MARCOS, IMELDA R. MARCOS,

Political Law; Bill of Rights; Liberty of Abode; Right to Travel; The

VOL. 177, SEPTEMBER 15, 1989 669