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

258 Phil. 479


[ G.R. No. 88211, September 15, 1989 ]




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 conveyed 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 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?
  2. Is this a political question?
  3. 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" -
  4. Has the President made a finding that the return of former President Marcos and his family to thePhilippinesis a clear and present danger to national security, public safety or public health?
  5. 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?

  1. Is the President's determination that the return of former President Marcos and his family to thePhilippinesis a clear and present danger to national security, public safety, or public health a political question?
  2. Assuming that the Court may inquire as to whether the return of former President Marcos and his family is a clear and present danger to national security, public safety, or public health, have respondents established such fact?
  3. Have the respondents, therefore, in implementing the President's decision to bar the return of former President Marcos and his family, acted and would be acting without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing any act which would effectively bar the return of former President Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.]

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.x x xSection 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:

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 ands this Honorable Court can not consider it.There are thus gradations to the question, to wit:

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

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish their residence here even it 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 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 vDulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and Haig vAgee [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 Human 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 well-considered view that the right to return may be considered, as a generally accepted principle of international law and under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases 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 vElectoral 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 vCabangis [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 Presidents 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.” [Memorandum for Petitioners, p. 4; Rollo, p. 223.] 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 Powers1787-1957, 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 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 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 vGovernment 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; underscoring 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 xx x xIt does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At 210-211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of 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 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.]

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

More particularly, this case calls for the exercise of the President's powers as protector of the peace. [Rossiter, The American Presidency.] The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-­day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the 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 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.

The Extent of Review

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

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government, incorporates in the fundamental law the ruling in Lansang vGarcia [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 allotted 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 constitution limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. . . . [At 479-480.]

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

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's decision.

The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the 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.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence. The State, acting through the Government, is not precluded from taking pre-emptive action against threats to its existence if, though still nascent, they are perceived as apt to become serious and direct. Protection of the people is the essence of the duty of government. The preservation of the State - the fruition of the people's sovereignty - is an obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the laws cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, we cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit of judicial notice.

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

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


Narvasa, Melencio-Herrera, Gancayco, Grino-Aquino, Medialdea, and Regalado, JJ., concur.
Fernan, C.J., see separate concurring opinion.
Gutierrez, Jr., Cruz, Padilla, and Sarmiento, JJ., see dissent.
Paras, J., I dissent in separate opinion.
Bidin, J., I join in the dissent of Mr. Justice Hugo Gutierrez, Jr.
Feliciano, J., on leave. Voted to grant petition when this case was deliberated upon.

* 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 Unites States have through the years grown, developed and taken shape as students of that presidency have demonstrated.



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

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

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel which, in the language of the Constitution, shall not be impaired "except in the interest of national security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel within the country, to travel out of the country and to return to the country (Philippines), is hardly disputable. Short of all such components, the right to travel is meaningless. The real question arises in the interpretation of the qualifications attached by the Constitution to such right to travel.

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

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

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i. e., the right to return to the country.[1] Have the respondents presented sufficient evidence to offset or override the exercise of this right invoked by 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.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to justify derogation of human rights.[2]

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides that everyone has the right to leave any country, including his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right to enter his own country." (emphasis supplied) “Arbitrary” or "arbitrarily" was specifically chosen by the drafters of the Covenant[3] hoping to protect an individual against unexpected, irresponsible or excessive encroachment on his rights by the state based on national traditions or a particular sense of justice which falls short of international law or standards.[4]

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised the argument of "national security" and "public safety", it is the duty of this Court to unquestioningly yield thereto, thus casting the controversy to the realm of a political question. I do not agree. I believe that 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, to me, is its clearly pressing and demandable duty to the Constitution.

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

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

  1. Mr. Marcosisa Filipino and, as such, entitled to return to,[5] die and be buried in this country;
  2. respondents have not shown any "hard evidence" or convincing proof why his rightasa 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 impartialjudge.” It isonly 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.

[1] In addition, he invokes the right as a basic human right recognized by the Universal Declaration of Human Rights.

[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.

[5] As to whether the U.S. Federal Government will allow Mr. Marcos to leave the Unites 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.



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.