Académique Documents
Professionnel Documents
Culture Documents
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* EN BANC.
669
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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
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671
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
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
and our laws.‰ [House Resolution No. 1342, Rollo, p. 321.] The
Resolution does not question the PresidentÊs power to bar the
Marcoses from returning to the Philippines, rather, it appeals to the
PresidentÊs 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.
672
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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673
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 PresidentÊs 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 camelÊs back. With
these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that
the return of the Marcoses poses a serious threat to the national
interest and welfare and in prohibiting their return.
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674
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675
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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.
676
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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.
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677
because the Bill of Rights says so. There is no law prescribing exile
in a foreign land as the penalty for hurting the Nation.
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678
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
679
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
the fundamental law. It will not suffice, so I submit, to say that the
PresidentÊs 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.
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681
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.:
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682
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
The Petition
683
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
The Issue
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684
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685
Article 12
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686
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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.]
687
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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688
Executive Power
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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690
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_______________
691
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
692
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693
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694
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695
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696
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
697
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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698
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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
699
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_______________
700
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701
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702
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703
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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704
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705
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
706
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
707
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
708
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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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
GeneralÊs 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]):
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
„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
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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 personÊs 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 respondentsÊ 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
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712
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713
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714
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715
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716
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717
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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
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719
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720
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721
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
1. Mr. Marcos5
is a Filipino and, as such, entitled to
return to, die and be buried in this country;
2. respondents have not shown any „hard evidence‰ or
convincing proof why his right as a Filipino to
return should be denied him. All we have are
general conclusions of „national security‰ and
„public safety‰ in avoidance of a specific
demandable and enforceable constitutional and
basic human right to return;
3. the issue of MarcosÊ return to the Philippines,
perhaps more than any issue today, requires of all
members of the Court, in what appears to be an
extended political contest, the „cold neutrality of an
impartial judge.‰ It is only thus that we fortify the
independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and
only to the Constitution.
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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
4
health, as may be provided by law.
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1 Decision, 4.
2 Seesupra,1-4.
3 Supra,2.
4 CONST., art. III, sec. 6.
723
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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,
6
Sec. 1.]
And finally:
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
defend the
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I am not persuaded.
I.
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
9
therefrom.‰ For if it were, indeed, the intent of the Charter
to create an exception, that is, by Presidential action, to the
right of travel or liberty of abode and of changing the same
·other than what 10
it explicitly says already („limits
11
prescribed by law‰ or „upon lawful order of the court‰ )·
the
_______________
7 Supra,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
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
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727
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
II.
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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.
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
728
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SUPREME COURT REPORTS ANNOTATED VOLUME 177 9/1/19, 6:23 PM
Advocate GeneralÊs 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
··o0o··
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