Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of
National Defense and Chief of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to
seven (7), dismissed the petition, after finding 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 pose a threat to national interest and welfare and in prohibiting
their return to the Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in
widely and passionately conflicting ways, and for the tranquility of the state
and order of society, the remains of Ferdinand E. Marcos will not be allowed
to be brought to our country until such time as the government, be it under
this administration or the succeeding one, shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners,
raising the following major arguments:
1. to bar former President Marcos and his family from returning to the
Philippines is to deny them not only the inherent right of citizens to return to
their country of birth but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she
has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President
Marcos. Thus, petitioners prayed that the Court reconsider its decision, order
respondents to issue the necessary travel documents to enable Mrs. Imelda

R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc,

Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar the return
of the remains of Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued
that the motion for reconsideration is moot and academic as to the deceased
Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by the
Marcoses under the label 'right to return', including the label 'return of Marcos'
remains, is in reality or substance a 'right' to destabilize the country, a 'right' to
hide the Marcoses' incessant shadowy orchestrated efforts at destabilization."
[Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be
denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the
burden is upon the movants, petitioner herein, to show that there are
compelling reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for
reconsideration, the Court is of the view that no compelling reasons have
been established by petitioners to warrant a reconsideration of the Court's
decision.
The death of Mr. Marcos, although it may be viewed as a supervening event,
has not changed the factual scenario under which the Court's decision was
rendered. The threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have
ceased. On the contrary, instead of erasing fears as to the destabilization that
will be caused by the return of the Marcoses, Mrs. Marcos reinforced the
basis for the decision to bar their return when she called President Aquino
"illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal"
President of the Philippines, and declared that the matter "should be brought
to all the courts of the world." [Comment, p. 1; Philippine Star, October 4,
1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is
so, notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of
specific power of the President, particularly those relating to the commanderin-chief clause, but not a diminution of the general grant of executive power.

That the President has powers other than those expressly stated in the
Constitution is nothing new. This is recognized under the U.S. Constitution
from which we have patterned the distribution of governmental powers among
three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in a
President of the United States of America." In Alexander Hamilton's widely
accepted view, this statement cannot be read as mere shorthand for the
specific executive authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of article II, section
1, and the conditional language of article I, [section] 1: "All legislative Powers
herein granted shall be vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III enumeration [in sections 2 and 31
ought therefore to be considered, as intended merely to specify the principal
articles implied in the definition of execution power; leaving the rest to flow
from the general grant of that power, interpreted in confomity with other parts
of the Constitution...
In Myers v. United States, the Supreme Court accepted Hamilton's
proposition, concluding that the federal executive, unlike the Congress, could
exercise power from sources not enumerated, so long as not forbidden by the
constitutional text: the executive power was given in general terms,
strengthened by specific terms where emphasis was regarded as appropriate,
and was limited by direct expressions where limitation was needed. . ." The
language of Chief Justice Taft in Myers makes clear that the constitutional
concept of inherent power is not a synonym for power without limit; rather, the
concept suggests only that not all powers granted in the Constitution are
themselves exhausted by internal enumeration, so that, within a sphere
properly regarded as one of "executive' power, authority is implied unless
there or elsewhere expressly limited. [TRIBE, AMERICAN
CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's
implied or residual powers is tantamount to setting the stage for another
dictatorship. Despite petitioners' strained analogy, the residual powers of the
President under the Constitution should not be confused with the power of the
President under the 1973 Constitution to legislate pursuant to Amendment
No. 6 which provides:
Whenever in the judgment of the President (Prime Minister), there exists a
grave emergency or a threat or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National Assembly fails or is unable to act
adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders, or letters of instruction, which shall form part of the law of the
land,

There is no similarity between the residual powers of the President under the
1987 Constitution and the power of the President under the 1973 Constitution
pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an
express grant of power. It is not implied. Then, Amendment No. 6 refers to a
grant to the President of the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance
with his (or her) oath of office, is to protect and promote the interest and
welfare of the people. Her decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present time and under
present circumstances is in compliance with this bounden duty. In the
absence of a clear showing that she had acted with arbitrariness or with
grave abuse of discretion in arriving at this decision, the Court will not enjoin
the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration
for lack of merit."
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition.
The death of Marcos has not plunged the nation into paroxysms of grief as
the so-called "loyalists" had hoped. By and large, it has been met with only
passing interest if not outright indifference from the people. Clearly, the
discredited dictator is in death no El Cid. Marcos dead is only an unpleasant
memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he
was already moribund that feeble threat has died with him. As the
government stresses, he has been reduced to a non-person (which makes
me wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only a
dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than
debating over a corpse that deserves no kinder fate than dissolution and
oblivion. I say let it be brought home and buried deep and let us be done with
it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already
expressed.
Firstly, the former President, although already dead, is still entitled to certain
rights. It is not correct to say that a dead man, since he is no longer a human
being, has ceased to have rights. For instance, our Revised Penal Code
prohibits the commission of libel against a deceased individual. And even if

we were to assume the non- existence anymore of his human rights what
about the human rights of his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily
control any possible uprising or political and military destabilization. In fact,
the converse appears to be nearer the truth, that is, if we do not allow the
remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the
return is granted. To refuse the request can mean a hardening of resistance
against the well-intentioned aim of the administration. Upon the other hand, to
grant the petition may well soften the hearts of the oppositionists; paving the
way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As
Shakespeare once wrote "the quality of mercy is not strained." Surely,
compassion is the better part of government. Remove mercy, and you
remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after
decision in this case had been rendered, was pre-empted and foreseen in my
original dissenting opinion. There I said that the first cogent and decisive
proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled
to return to, die and be buried in this country." I have only to add a few
statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights,
i.e. to return to and die in this country, The remaining right of this Filipino that
cries out for vindication at this late hour is the right to be buried in this
country. Will the respondents be allowed to complete the circle of denying the
constitutional and human right of Mr. Marcos to travel which, as stated in my
dissenting opinion, includes the right to return to, die and be buried in this
country? The answer should be in the negative if the Constitution is to still
prevail; the answer should be in the negative if we are to avoid the completely
indefensible act of denying a Filipino the last right to blend his mortal remains
with a few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right
that can be accorded him now say that the constitutional and human right to
be buried in this country would apply to any Filipino, except Mr. Marcos,
because he was a dictator and he plundered the country. This is the most
irrelevant argument that can be raised at this time. For, our democracy is built
on the fundamental assumption (so we believe) that the Constitution and all
its guarantees apply to all Filipinos, whether dictator or pauper, learned or
ignorant, religious or agnostic as long as he is a Filipino.

It is said that to accord this Filipino the right to be buried in this country would
pose a serious threat to national security and public safety. What threat? As
pointed out in my dissenting opinion, the second cogent and decisive
proposition in this case is that respondents have not presented any "hard
evidence" (factual bases) or convincing proof of such threat. "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." Recent events have, to my mind, served to confirm the validity of
such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to
national security, the situation cannot be any worse with a dead Marcos
returning. For, a dead Marcos will return to be buried into mother earth, where
there are no protests, "demos", or even dissents, where the rule that reigns,
in the language of Mr. Justice Jackson in Barnette is the "unanimity of the
graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten
national security, his supporters would pose that threat to national security.
This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of
his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos' supporters would be deprived
of an otherwise potent argumentso conducive to mass protests and even
violencethat their Idol has been cruelly denied the right to be buried in his
homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or
human rights, to speak of. This contention entirely begs the issue. In the first
place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to be
buried in this country, is asserted not for the first time after his death. It was
vigorously asserted long before his death. But, more importantly, the right of
every Filipino to be buried in his country, is part of a continuing right that
starts from birth and ends only on the day he is finally laid to rest in his
country.
This dissenting opinion does not pretend to deny the Philippine government
the right to lay down conditions for the burial of Mr. Marcos in this country, but
I submit that these conditions must, as a fundamental postulate, recognize
the right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now.
Without in any way affecting my respect and regard for my brethren and
sisters in the majority, I am deeply concerned and greatly disturbed that, with
their decision banning a dead Marcos from burial in this country, they have
passed an opportunity to defuse a constitutional crisis that, in my humble
assessment, threatens to ignite an already divided nation, Regrettably, they

have ignored the constitutional dimension of the problem rooted in the

ageless and finest tradition of our people for respect and deference to the
dead. What predictably follows will be a continuing strife, among our people,
of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate
return and burial in the Republic of the Philippines of former President
Ferdinand E. Marcos, subject to such conditions as the Philippine
government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot,
yet, as I stated before, I can not allow personal emotions to soften my
"hardened impartiality" and deny, as a consequence, the rights of the exPresident's bereaved to bury his remains in his homeland, and for them to
return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by
direct grant or by implication, the President's supposed "residual" power to
forbid citizens from entering the motherland reiterated in the resolution of the
majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of
executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori,
prescribed a diminution of executive power. The Charter says that the right
may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It
would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only
against legislative encroachments on individual liberties, but more so, against
presidential intrusions. And especially so, because the President is the

caretaker of the military establishment that has, several times over, been
unkind to part of the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has
been viewed to provide a catalytic effect, have not been shown to have
ceased" (Res., 3) is the realm of conjecture, speculation, and imagination.
The military has shown no hard evidence that "the return of the Marcoses"
would indeed interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate
President, does not, so I submit, reinforce alleged fears of a massive
destabilization awaiting the nation. The military has said over and over that
Marcos followers are not capable of successful destabilization effort. And only
this morning (October 27, 1989), media reported the assurances given to
foreign investors by no less than the President, of the political and economic
stability of the nation, as well as the Government's capability to quell forces
that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal
impressions, however, are beside the point. I reiterate that the President has
no power to deny requests of Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their just deserts here too. And let
the matter rest.
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition.
The death of Marcos has not plunged the nation into paroxysms of grief as
the so-called "loyalists" had hoped. By and large, it has been met with only
passing interest if not outright indifference from the people. Clearly, the
discredited dictator is in death no El Cid. Marcos dead is only an unpleasant
memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he
was already moribund that feeble threat has died with him. As the
government stresses, he has been reduced to a non-person (which makes
me wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only a
dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than
debating over a corpse that deserves no kinder fate than dissolution and
oblivion. I say let it be brought home and buried deep and let us be done with
it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already
expressed.

Firstly, the former President, although already dead, is still entitled to certain
rights. It is not correct to say that a dead man, since he is no longer a human
being, has ceased to have rights. For instance, our Revised Penal Code
prohibits the commission of libel against a deceased individual. And even if
we were to assume the non- existence anymore of his human rights what
about the human rights of his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily
control any possible uprising or political and military destabilization. In fact,
the converse appears to be nearer the truth, that is, if we do not allow the
remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the
return is granted. To refuse the request can mean a hardening of resistance
against the well-intentioned aim of the administration. Upon the other hand, to
grant the petition may well soften the hearts of the oppositionists; paving the
way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As
Shakespeare once wrote "the quality of mercy is not strained." Surely,
compassion is the better part of government. Remove mercy, and you
remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man
has put it, the question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after
decision in this case had been rendered, was pre-empted and foreseen in my
original dissenting opinion. There I said that the first cogent and decisive
proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled
to return to, die and be buried in this country." I have only to add a few
statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights,
i.e. to return to and die in this country, The remaining right of this Filipino that
cries out for vindication at this late hour is the right to be buried in this
country. Will the respondents be allowed to complete the circle of denying the
constitutional and human right of Mr. Marcos to travel which, as stated in my
dissenting opinion, includes the right to return to, die and be buried in this
country? The answer should be in the negative if the Constitution is to still
prevail; the answer should be in the negative if we are to avoid the completely
indefensible act of denying a Filipino the last right to blend his mortal remains
with a few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right
that can be accorded him now say that the constitutional and human right to
be buried in this country would apply to any Filipino, except Mr. Marcos,
because he was a dictator and he plundered the country. This is the most

irrelevant argument that can be raised at this time. For, our democracy is built
on the fundamental assumption (so we believe) that the Constitution and all
its guarantees apply to all Filipinos, whether dictator or pauper, learned or
ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would
pose a serious threat to national security and public safety. What threat? As
pointed out in my dissenting opinion, the second cogent and decisive
proposition in this case is that respondents have not presented any "hard
evidence" (factual bases) or convincing proof of such threat. "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." Recent events have, to my mind, served to confirm the validity of
such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to
national security, the situation cannot be any worse with a dead Marcos
returning. For, a dead Marcos will return to be buried into mother earth, where
there are no protests, "demos", or even dissents, where the rule that reigns,
in the language of Mr. Justice Jackson in Barnette is the "unanimity of the
graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten
national security, his supporters would pose that threat to national security.
This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of
his right to burial in this country. On the other hand, if the remains of Mr.
Marcos are brought to the country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos' supporters would be deprived
of an otherwise potent argumentso conducive to mass protests and even
violencethat their Idol has been cruelly denied the right to be buried in his
homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or
human rights, to speak of. This contention entirely begs the issue. In the first
place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to be
buried in this country, is asserted not for the first time after his death. It was
vigorously asserted long before his death. But, more importantly, the right of
every Filipino to be buried in his country, is part of a continuing right that
starts from birth and ends only on the day he is finally laid to rest in his
country.
This dissenting opinion does not pretend to deny the Philippine government
the right to lay down conditions for the burial of Mr. Marcos in this country, but
I submit that these conditions must, as a fundamental postulate, recognize
the right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now.
Without in any way affecting my respect and regard for my brethren and

sisters in the majority, I am deeply concerned and greatly disturbed that, with
their decision banning a dead Marcos from burial in this country, they have
passed an opportunity to defuse a constitutional crisis that, in my humble
assessment, threatens to ignite an already divided nation, Regrettably, they
have ignored the constitutional dimension of the problem rooted in the
ageless and finest tradition of our people for respect and deference to the
dead. What predictably follows will be a continuing strife, among our people,
of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate
return and burial in the Republic of the Philippines of former President
Ferdinand E. Marcos, subject to such conditions as the Philippine
government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot,
yet, as I stated before, I can not allow personal emotions to soften my
"hardened impartiality" and deny, as a consequence, the rights of the exPresident's bereaved to bury his remains in his homeland, and for them to
return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by
direct grant or by implication, the President's supposed "residual" power to
forbid citizens from entering the motherland reiterated in the resolution of the
majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of
executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori,
prescribed a diminution of executive power. The Charter says that the right
may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It
would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only
against legislative encroachments on individual liberties, but more so, against
presidential intrusions. And especially so, because the President is the
caretaker of the military establishment that has, several times over, been
unkind to part of the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has
been viewed to provide a catalytic effect, have not been shown to have
ceased" (Res., 3) is the realm of conjecture, speculation, and imagination.
The military has shown no hard evidence that "the return of the Marcoses"
would indeed interpose a threat to national security. And apparently, the
majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate
President, does not, so I submit, reinforce alleged fears of a massive
destabilization awaiting the nation. The military has said over and over that
Marcos followers are not capable of successful destabilization effort. And only
this morning (October 27, 1989), media reported the assurances given to
foreign investors by no less than the President, of the political and economic
stability of the nation, as well as the Government's capability to quell forces
that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal
impressions, however, are beside the point. I reiterate that the President has
no power to deny requests of Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their just deserts here too. And let
the matter rest.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive

Secretary, Secretary of Justice, Immigration Commissioner, Secretary of

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

Mrs. Aquino assumed office, have yet to show concrete results in alleviating
the poverty of the masses, while the recovery of the ill-gotten wealth of the
Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire consequences to
the nation of his return at a time when the stability of government is
threatened from various directions and the economy is 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 Courts to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses
from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1. Does the President have the power to bar the return of former President
Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos
and his family from returning to the Philippines, in the interest of "national
security, public safety or public health
a. Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making such
finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based, been
made known to petitioners so that they may controvert the same?

c. Is the President's determination that the return of former President Marcos

and his family to the Philippines is a clear and present danger to national
security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former
President Marcos and his family is a clear and present danger to national
security, public safety, or public health, have respondents established such
fact?
3. Have the respondents, therefore, in implementing the President's decision
to bar the return of former President Marcos and his family, acted and would
be acting without jurisdiction, or in excess of jurisdiction, or with grave abuse
of discretion, in performing any act which would effectively bar the return of
former President Marcos and his family to the Philippines? [Memorandum for
Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following
provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the
liberty of abode of the Marcoses because only a court may do so "within the
limits prescribed by law." Nor may the President impair their right to travel
because no law has authorized her to do so. They advance the view that
before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence
within the borders of each state.
(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 and this Honorable Court can not
consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable
question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the
Philippines and reestablish their residence here even if their return and
residence here will endanger national security and public safety? this is still a
justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand
E. Marcos and family shall return to the Philippines and establish their
residence here? This is now a political question which this Honorable Court
can not decide for it falls within the exclusive authority and competence of the
President of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo,
pp. 297-299.]
Respondents argue for the primacy of the right of the State to national
security over individual rights. In support thereof, they cite Article II of the
Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family
from returning to the Philippines for reasons of national security and public
safety has international precedents. Rafael Trujillo of the Dominican Republic,
Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio
batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El
Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed
dictators whose return to their homelands was prevented by their
governments. [See Statement of Foreign Affairs Secretary Raul S.
Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp.
314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different
light. Although we give due weight to the parties' formulation of the issues, we
are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S.
Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt
1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L
Ed. 2d 640) which affirmed the right to travel and recognized exceptions to
the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These
are what the right to travel would normally connote. Essentially, the right
involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration
speaks of the "right to freedom of movement and residence within the borders
of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other
hand, the Covenant guarantees the "right to liberty of movement and freedom
to choose his residence" [Art. 12(l)] and the right to "be free to leave any
country, including his own." [Art. 12(2)] which rights may be restricted by such

laws as "are necessary to protect national security, public order, public health
or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the
limitations to the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-considered view that the right to return may
be considered, as a generally accepted principle of international law and,
under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and
Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they
relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine,
and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or
not there can be limitations on the right to travel in the absence of legislation
to that effect is rendered unnecessary. An appropriate case for its resolution
will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to
explain the methodology for its resolution. Our resolution of the issue will
involve a two-tiered approach. We shall first resolve whether or not the
President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII, Section 1,
whether or not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined that the
return of the Marcose's to the Philippines poses a serious threat to national
interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three
great branches of government. To recall the words of Justice Laurel in Angara
v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked
but with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government." [At 157.1 Thus,
the 1987 Constitution explicitly provides that "[the legislative power shall be
vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive
power shall bevested in the President of the Philippines" [Art. VII, Sec. 11,
and "[te judicial power shall be vested in one Supreme Court and in such

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

We encounter this characteristic of Article 11 in its opening words: "The

executive power shall be vested in a President of the United States of
America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the
different persons who held the office from Washington to the early 1900's,
and the swing from the presidency by commission to Lincoln's dictatorship,
he concluded that "what the presidency is at any particular moment depends
in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained
of course, an agency of government subject to unvarying demands and duties
no remained, of cas President. But, more than most agencies of government,
it changed shape, intensity and ethos according to the man in charge. Each
President's distinctive temperament and character, his values, standards,
style, his habits, expectations, Idiosyncrasies, compulsions, phobias recast
the WhiteHouse and pervaded the entire government. The executive branch,
said Clark Clifford, was a chameleon, taking its color from the character and
personality of the President. The thrust of the office, its impact on the
constitutional order, therefore altered from President to President. Above all,
the way each President understood it as his personal obligation to inform and
involve the Congress, to earn and hold the confidence of the electorate and to
render an accounting to the nation and posterity determined whether he
strengthened or weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she
does but, rather, that the consideration of tradition and the development of
presidential power under the different constitutions are essential for a
complete understanding of the extent of and limitations to the President's
powers under the 1987 Constitution. The 1935 Constitution created a strong
President with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through
numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature. The 1987 Constitution,
however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as head
of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the
President. It also grants the President other powers that do not involve the

execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise 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 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 GovernorGeneral to do so, said:
...Here the members of the legislature who constitute a majority of the "board"
and "committee" respectively, are not charged with 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; Emphasis
supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring
words of dissent we find reinforcement for the view that it would indeed be a
folly to construe the powers of a branch of government to embrace only what
are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of
black and white. Even the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it
by veiling words we do not and cannot carry out the distinction between
legislative and executive action with mathematical precision and divide the
branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]
The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty
of theGovernment is to serve and protect the people" and that "[t]he
maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace
and order, the protection of life, liberty and property, and the promotion of the
general welfare are essentially ideals to guide governmental action. But such
does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing
implementing action for these plans, or from another point of view, in making
any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the Constitution,
constrained to consider these basic principles in arriving at a decision. More
than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their
welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers to the State for
the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people
become rulers, the Constitution reminds everyone that "[s]overeignty resides
in the people and all government authority emanates from them." [Art. II, Sec.
1.]
The resolution of the problem is made difficult because the persons who seek
to return to the country are the deposed dictator and his family at whose door
the travails of the country are laid and from whom billions of dollars believed
to be ill-gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For the exercise of
even the preferred freedoms of speech and ofexpression, although couched
in absolute terms, admits of limits and must be adjusted to the requirements
of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people.
To paraphrase Theodore Roosevelt, it is not only the power of the President
but also his duty to do anything not forbidden by the Constitution or the laws
that the needs of the nation demand [See Corwin, supra, at 153]. It is a power
borne by the President's duty to preserve and defend the Constitution. It also

may be viewed as a power implicit in the President's duty to take care that the
laws are faithfully executed [see Hyman, The American President, where the
author advances the view that an allowance of discretionary power is
unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as
protector of the peace. Rossiter The American Presidency].The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative want of
an emergency specified in the 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 Marcose's
from returning has been recognized by memembers of the Legislature, and is
manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to
return to the Philippines "as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President's sense of compassion to allow
a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to
be allowed to return to the Philippines cannot be considered in the light solely
of the constitutional provisions guaranteeing liberty of abode and the right to
travel, subject to certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one. It must be
treated as a matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the paramount
duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it must be
granted or denied.
The Extent of Review

Under the Constitution, judicial power includes the duty to determine whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments to
decide. But nonetheless there remain issues beyond the Court's jurisdiction
the determination of which is exclusively for the President, for Congress or for
the people themselves through a plebiscite or referendum. We cannot, for
example, question the President's recognition of a foreign government, no
matter how premature or improvident such action may appear. We cannot set
aside a presidential pardon though it may appear to us that the beneficiary is
totally undeserving of the grant. Nor can we amend the Constitution under the
guise of resolving a dispute brought before us because the power is reserved
to the people.
There is nothing in the case before us that precludes our determination
thereof on the political question doctrine. The deliberations of the
Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of
justice to settle all actual controversies before them. When political questions
are involved, the Constitution limits the determination to whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. If
grave abuse is not established, the Court will not substitute its judgment for
that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide. In this light, it would appear clear that the
second paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to determine whether
or not there has been a grave abuse of discretion on the part of any branch or
instrumentality of the government, incorporates in the fundamental law the
ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA
4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified conditions.
Pursuant to the principle of separation of powers underlying our system of
government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it
goes hand in hand with the system of checks and balances, under which the
Executive is supreme, as regards the suspension of the privilege, but only if
and when he acts within the sphere alloted to him by the Basic Law, and the

authority to determine whether or not he has so acted is vested in the Judicial

Department, which, in this respect, is, in turn, constitutionally supreme. In the
exercise of such authority, the function of the Court is merely to check not
to supplant the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there
exist factual bases for the President to conclude that it was in the national
interest to bar the return of the Marcoses to the Philippines. If such postulates
do exist, it cannot be said that she has acted, or acts, arbitrarily or that she
has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments,
and the facts revealed during the briefing in chambers by the Chief of Staff of
the Armed Forces of the Philippines and the National Security Adviser,
wherein petitioners and respondents were represented, there exist factual
bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the
country is not besieged from within by a well-organized communist
insurgency, a separatist movement in Mindanao, rightist conspiracies to grab
power, urban terrorism, the murder with impunity of military men, police
officers and civilian officials, to mention only a few. The documented history of
the efforts of the Marcose's and their followers to destabilize the country, as
earlier narrated in this ponencia bolsters the conclusion that the return of the
Marcoses at this time would only exacerbate and intensify the violence
directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be
contained. The military establishment has given assurances that it could
handle the threats posed by particular groups. But it is the catalytic effect of
the return of the Marcoses that may prove to be the proverbial final straw that
would break the camel's back. With these before her, the President cannot be
said to have acted arbitrarily and capriciously and whimsically in determining
that the return of the Marcoses poses a serious threat to the national interest
and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will
cause the escalation of violence against the State, that would be the time for
the President to step in and exercise the commander-in-chief powers granted
her by the Constitution to suppress or stamp out such violence. The State,
acting through the Government, is not precluded from taking pre- emptive
action against threats to its existence if, though still nascent they are
perceived as apt to become serious and direct. Protection of the people is the
essence of the duty of government. The preservation of the State the fruition
of the people's sovereignty is an obligation in the highest order. The

President, sworn to preserve and defend the Constitution and to see the
faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the country,
while the Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one of
the root causes of widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is easily within
the ambit of judicial notice.
The President has determined that the destabilization caused by the return of
the Marcoses would wipe away the gains achieved during the past few years
and lead to total economic collapse. Given what is within our individual and
common knowledge of the state of the economy, we cannot argue with that
determination.
WHEREFORE, and it being our well-considered opinion that the President did
not act arbitrarily or with grave abuse of discretion in determining that the
return of former President Marcos and his family at the present time and
under present circumstances poses a serious threat to national interest and
welfare and in prohibiting their return to the Philippines, the instant petition is
hereby DISMISSED.
SO ORDERED.
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting
Communist insurgency, a simmering separatist movement, a restive
studentry, widespread labor disputes, militant farmer groups. . . . Each of
these threats is an explosive ingredient in a steaming cauldron which could
blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the
Court, Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently the
basis of my full concurrence to the exhaustive and well-written ponencia of
Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not
derived solely from a particular constitutional clause or article or from an
express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of

law. History and time-honored principles of constitutional law have conceded

to the Executive Branch certain powers in times of crisis or grave and
imperative national emergency. Many terms are applied to these powers:
"residual," "inherent," 44 moral," "implied," "aggregate," "emergency."
whatever they may be called, the fact is that these powers exist, as they must
if the governance function of the Executive Branch is to be carried out
effectively and efficiently. It is in this context that the power of the President to
allow or disallow the Marcoses to return to the Philippines should be viewed.
By reason of its impact on national peace and order in these admittedly
critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot
but pose a clear and present danger to public order and safety. One needs
only to recall the series of destabilizing actions attempted by the so-called
Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution's aftermath to realize this. The most publicized of these offensives
is the Manila Hotel incident which occurred barely five (5) months after the
People's Power Revolution. Around 10,000 Marcos supporters, backed by
300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oathtaking of Arturo Tolentino as acting president of the Philippines. The public
disorder and peril to life and limb of the citizens engendered by this event
subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp
Aguinaldo incidents. Military rebels waged simultaneous offensives in
different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel
soldiers took over Channel 7 and its radio station DZBB. About 74 soldier
rebels attacked Villamor Air Base, while another group struck at Sangley
Point in Cavite and held the 15th Air Force Strike wing commander and his
deputy hostage. Troops on board several vehicles attempted to enter Gate I
of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted
personnel who forced their way through Gate 1 of Fort Bonifacio. They
stormed into the army stockade but having failed to convince their
incarcerated members to unite in their cause, had to give up nine (9) hours
later.
And who can forget the August 28, 1987 coup attempt which almost toppled
the Aquino Government? Launched not by Marcos loyalists, but by another
ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who
remains at large to date, this most serious attempt to wrest control of the
government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away
high-powered firearms and ammunition from the Camp Crame Armory during
a raid conducted in June 1988. Most of the group members were, however,
captured in Antipolo, Rizal. The same group was involved in an unsuccessful
plot known as Oplan Balik Saya which sought the return of Marcos to the
country.
A more recent threat to public order, peace and safety was the attempt of a
group named CEDECOR to mobilize civilians from nearby provinces to act as
blockading forces at different Metro Manila areas for the projected link-up of
Marcos military loyalist troops with the group of Honasan. The pseudo
"people power" movement was neutralized thru checkpoints set up by the
authorities along major road arteries where the members were arrested or
forced to turn back.
While not all of these disruptive incidents may be traced directly to the
Marcoses, their occurrence militates heavily against the wisdom of allowing
the Marcoses' return. Not only will the Marcoses' presence embolden their
followers toward similar actions, but any such action would be seized upon as
an opportunity by other enemies of the State, such as the Communist Party of
the Philippines and the NPA'S, the Muslim secessionists and extreme rightists
of the RAM, to wage an offensive against the government. Certainly, the state
through its executive branch has the power, nay, the responsibility and
obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to
return to the Philippines is one factor, which albeit, at first blush appears to be
extra legal, constitutes a valid justification for disallowing the requested
return. I refer to the public pulse. It must be remembered that the ouster of
the Marcoses from the Philippines came about as an unexpected, but
certainly welcomed, result of the unprecedented peoples power" revolution.
Millions of our people braved military tanks and firepower, kept vigil, prayed,
and in countless manner and ways contributed time, effort and money to put
an end to an evidently untenable claim to power of a dictator. The removal of
the Marcoses from the Philippines was a moral victory for the Filipino people;
and the installation of the present administration, a realization of and
obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is
being made to sympathy, compassion and even Filipino tradition. The political
and economic gains we have achieved during the past three years are
however too valuable and precious to gamble away on purely compassionate
considerations. Neither could public peace, order and safety be sacrificed for
an individual's wish to die in his own country. Verily in the balancing of
interests, the scales tilt in favor of presidential prerogative, which we do not
find to have been gravely abused or arbitrarily exercised, to ban the
Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at all
times, and under all circumstances. No doctrine involving more pernicious
consequences was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex
Parte Milligan as self-evident truth. But faced with a hard and delicate case,
we now hesitate to qive substance to their meaning. The Court has permitted
a basic freedom enshrined in the Bill of Rights to be taken away by
Government.
There is only one Bill of Rights with the same interpretation of liberty and the
same guarantee of freedom for both unloved and despised persons on one
hand and the rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should
not be a precedent. We are interpreting the Constitution for only one person
and constituting him into a class by himself. The Constitution is a law for all
classes of men at all times. To have a person as one class by himself smacks
of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue
before us is one of rights and not of power. Mr. Marcos is insensate and
would not live if separated from the machines which have taken over the
functions of his kidneys and other organs. To treat him at this point as one
with full panoply of power against whom the forces of Government should be
marshalled is totally unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his right to come home
and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual
invocation of national security and public safety which is hauntingly familiar
because it was pleaded so often by petitioner Ferdinand E. Marcos to justify
his acts under martial law. There is, however, no showing of the existence of
a law prescribing the limits of the power to impair and the occasions for its
exercise. And except for citing breaches of law and order, the more serious of
which were totally unrelated to Mr. Marcos and which the military was able to
readily quell, the respondents have not pointed to any grave exigency which

permits the use of untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political
question beyond our jurisdiction to consider. They contend that the decision
to ban former President Marcos, and his family on grounds of national
security and public safety is vested by the Constitution in the President alone.
The determination should not be questioned before this Court. The
President's finding of danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not within the province
of the judiciary, except to the extent that power to deal with such questions
has been conferred on the courts by express constitutional or statutory
provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to
designate all questions that he outside the scope of the judicial power. More
properly, however, it means those questions which, under the constitution, are
to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive
branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066
[1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other words, in
the language of Corpus Juris Secundum (supra), it refers to 'those questions
which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the Government. It is
concerned with issues dependent upon the wisdom, not legality, of a
particular measure.
The most often quoted definition of political question was made by Justice
William J. Brennan Jr., who penned the decision of the United States
Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663
[1962]). The ingredients of a political question as formulated in Baker v. Carr
are:
It is apparent that several formulations which vary slightly according to the
settings in which the questions arise may describe a political question, which
identifies it as essentially a function of the separation of powers. Prominent
on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial

policy determination of a kind clearly for non-judicial discretion; or the

impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already
made; or potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
For a political question to exist, there must be in the Constitution a power
vested exclusively in the President or Congress, the exercise of which the
court should not examine or prohibit. A claim of plenary or inherent power
against a civil right which claim is not found in a specific provision is
dangerous. Neither should we validate a roving commission allowing public
officials to strike where they please and to override everything which to them
represents evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which
commits or vests the determination of the question raised to us solely in the
President.
The authority implied in Section 6 of the Bill of Rights itself does not exist
because no law has been enacted specifying the circumstances when the
right may be impaired in the interest of national security or public safety. The
power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of
power may be found in the commander-in-chief clause which allows the
President to call out the armed forces in case of lawless violence, invasion or
rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety
requires it.
There is, however, no showing, not even a claim that the followers of former
President Marcos are engaging in rebellion or that he is in a position to lead
them. Neither is it claimed that there is a need to suspend the privilege of the
writ of habeas corpus or proclaim martial law because of the arrival of Mr.
Marcos and his family. To be sure, there may be disturbances but not of a
magnitude as would compel this Court to resort to a doctrine of nonjusticeability and to ignore a plea for the enforcement of an express Bill of
Rights guarantee.
The respondents themselves are hard-pressed to state who or what
constitutes a Marcos "loyalist." The constant insinuations that the "loyalist"
group is heavily funded by Mr. Marcos and his cronies and that the "loyalists"
engaging in rallies and demonstrations have to be paid individual allowances
to do so constitute the strongest indication that the hard core "loyalists" who
would follow Marcos right or wrong are so few in number that they could not
possibly destabilize the government, much less mount a serious attempt to
overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged
a "loyalist." It is in the best of Filipino customs and traditions to allow a dying
person to return to his home and breath his last in his native surroundings.
Out of the 103 Congressmen who passed the House resolution urging
permission for his return, there are those who dislike Mr. Marcos intensely or
who suffered under his regime. There are also many Filipinos who believe
that in the spirit of national unity and reconciliation Mr. Marcos and his family
should be permitted to return to the Philippines and that such a return would
deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.
The Court, however, should view the return of Mr. Marcos and his family
solely in the light of the constitutional guarantee of liberty of abode and the
citizen's right to travel as against the respondents' contention that national
security and public safety would be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue
exclusively to the President, there is likewise no dearth of decisional data, no
unmanageable standards which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and
of changing the same within the limits prescribed by law may be impaired
only upon a lawful order of a court. Not by an executive officer. Not even by
the President. Section 6 further provides that the right to travel, and this
obviously includes the right to 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 doctrine so often invoked by then President Marcos to justify his acts
is now being used against him and his family. Unfortunately, the Court should
not and is not allowed to indulge in such a persiflage. We are bound by the
Constitution.
The dim view of the doctrine's use was such that when the present
Constitution was drafted, a broad definition of judicial power was added to the
vesting in the Supreme Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political
question doctrine as a means to avoid having to make decisions simply
because they are too controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political
question doctrine allowed the Court during the Marcos years to fall back on
prudence, institutional difficulties, complexity of issues, momentousness of
consequences or a fear that it was extravagantly extending judicial power in
the cases where it refused to examine and strike down an exercise of
authoritarian power. Parenthetically, at least two of the respondents and their
counsel were among the most vigorous critics of Mr. Marcos (the main
petitioner) and his use of the political question doctrine. The Constitution was
accordingly amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to the question
doctrine. We are compelled to decide what would have been non-justiceable
under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we
may refuse to resolve. There are still some political questions which only the
President, Congress, or a plebiscite may decide. Definitely, the issue before
us is not one of them.

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

The other method is to avail of judicial notice. In this particular case, judicial
notice would be the only basis for determining the clear and present danger
to national security and public safety. The majority of the Court has taken
judicial notice of the Communist rebellion, the separatist movement, the
rightist conspiracies, and urban terrorism. But is it fair to blame the present
day Marcos for these incidents? All these problems are totally unrelated to the
Marcos of today and, in fact, are led by people who have always opposed
him. If we use the problems of Government as excuses for denying a
person's right to come home, we will never run out of justifying reasons.
These problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos
policy in order to ascertain whether or not the respondents acted with grave
abuse of discretion. Nor are we forced to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President
that a clear and present danger to national security and public safety will arise
if Mr. Marcos and his family are allowed to return to the Philippines. It was
only after the present petition was filed that the alleged danger to national
security and public safety conveniently surfaced in the respondents'
pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to (1) national welfare and interest and (2) the continuing
need to preserve the gains achieved in terms of recovery and stability. (See
page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies
the criteria of national security and public safety. The President has been
quoted as stating that the vast majority of Filipinos support her position. (The
Journal, front page, January 24,1989) We cannot validate their stance simply
because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President's
original position "that it is not in the interest of the nation that Marcos be
allowed to return at this time" has not changed. (Manila Times, front page,
February 7, 1989). On February 11, 1989, the President is reported to have
stated that "considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past three years"
in justifying her firm refusal to allow the return of Mr. Marcos despite his failing
health. (Daily Globe, front page, February 15, 1989). "Interest of the nation
national good," and "preserving economic and political gains," cannot be
equated with national security or public order. They are too generic and
sweeping to serve as grounds for the denial of a constitutional right. The Bill
of Rights commands that the right to travel may not be impaired except on the
stated grounds of national security, public safety, or public health and with the
added requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.

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

The Solicitor General's argument that the failure of Congress to enact a

statute defining the parameters of the right to travel and to freely choose
one's abode has constrained the President to fill in the vacuum, is too
reminiscent of Amendment No. 6 of the martial law Constitution to warrant
serious consideration. Amendment No. 6 allowed Marcos to issue decrees
whenever the Batasang Pambansa failed or was unable to act adequately on
any matter for any reason that in his judgment required immediate action.
When the Bill of Rights provides that a right may not be impaired except in
the interest of national security, public safety, or public health and further
requires that a law must provide when such specifically defined interests are
prejudiced or require protection, the inaction of Congress does not give
reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts
does not obstruct us from ruling against an unconstitutional assertion of
power by Philippine officials. Let the United States apply its laws. We have to
be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The
agony of traveling while hooked up to machines which have taken over the
functions of his heart, lungs, and kidneys may hasten his death. The physical
condition of Mr. Marcos does not justify our ignoring or refusing to act on his
claim to a basic right which is legally demandable and enforceable. For his
own good, it might be preferable to stay where he is. But he invokes a
constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld
if to do so would run counter to a constitutional guarantee. Besides, the
petitioners are not asking for passports and nothing else. Any travel
documents or any formal lifting of the Marcos ban as would allow international
airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the
right to travel. I do not think we should differentiate the right to return home
from the right to go abroad or to move around in the Philippines. If at all, the
right to come home must be more preferred than any other aspect of the right
to travel. It was precisely the banning by Mr. Marcos of the right to travel by
Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other
"undesirables" and "threats to national security" during that unfortunate period
which led the framers of our present Constitution not only to re-enact but to
strengthen the declaration of this right. Media often asks, "what else is new?"
I submit that we now have a freedom loving and humane regime. I regret that
the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom
we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has
disclosed a list of former dictators who were barred by their successors from

returning to their respective countries. There is no showing that the countries

involved have constitutions which guarantee the liberty of abode and the
freedom to travel and that despite such constitutional protections, the courts
have validated the "ban a return" policy. Neither is it shown that the
successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are
conducting a campaign to sow discord and to divide the nation. Opposition to
the government no matter how odious or disgusting is, however, insufficient
ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is
the Government helpless to defend itself against a threat to national security?
Does the President have to suspend the privilege of the writ of habeas corpus
or proclaim martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried
in court. The Government has more than ample powers under eixisting law to
deal with a person who transgresses the peace and imperils public safety. But
the denial of travel papers is not one of those powers because the Bill of
Rights says so. There is no law prescribing exile in a foreign land as the
penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to
return to and live and die in his own country. I say this with a heavy
heart but say it nonetheless. That conviction is not diminished one whit simply
because many believe Marcos to be beneath contempt and undeserving of
the very liberties he flounted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question
before us, nor can we resolve it. The question we must answer is whether or
not, assuming that Marcos is permitted to leave Hawaii (which may depend
on the action we take today), the respondents have acted with grave abuse of
discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they
were prepared to offer, but could not, that the petitioner's return would
prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the
Solicitor General if the government was prepared to prove the justification for
opposing the herein petition, i.e. that it had not acted arbitrarily. He said it
was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The
Solicitor General and three representatives from the military appeared for the
respondents, together with former Senator Arturo M. Tolentino, representing
the petitioners.

In about two hours of briefing, the government failed dismally to show that the
return of Marcos dead or alive would pose a threat to the national security as
it had alleged. The fears expressed by its representatives were based on
mere conjectures of political and economic destabilization without any single
piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist
"factual bases for the President's decision" to bar Marcos's return. That is not
my recollection of the impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition
to the specific powers granted by the Constitution, the Court is taking a great
leap backward and reinstating the discredited doctrine announced in Planas
v. Gil (67 Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit rather than expand
presidential powers, as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case
(343 U.S. 579) that if it was true that the President had been granted the
totality of executive power, "it is difficult to see why our forefathers bothered to
add several specific items, including some trifling ones, . . . I cannot accept
the view that this clause is a grant in bulk of all conceivable executive power
but regard it as an allocation to the presidential office of the generic powers
thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise,
considering that Marcos is perhaps the most detested man in the entire
history of our country. But we are not concerned here with popularity and
personalities. As a judge, I am not swayed by what Justice Cardozo called the
"hooting throng" that may make us see things through the prisms of prejudice.
I bear in mind that when I sit in judgment as a member of this Court, I must
cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only
of the established facts and the applicable law and not of wounds that still
fester and scars that have not healed. And not even of fear, for fear is a
phantom. That phantom did not rise when the people stood fast at EDSA
against the threat of total massacre in defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three
decades as a professor of Constitutional Law. These principles have not
changed simply because I am now on the Court or a new administration is in
power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the
Philippines against the prohibitions of the government then, Marcos is entitled
to the same right to travel and the liberty of abode that his adversary invoked.
These rights are guaranteed by the Constitution to all individuals, including
the patriot and the homesick and the prodigal son returning, and tyrants and
charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are
we ready to be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should
be allowed to return to the Philippines may be resolved by answering two
simple questions: Does he have the right to return to his own country and
should national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both
under the Universal Declaration of Human Rights and the 1987 Constitution
of the Philippines, he has the right to return to his own country 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:
I dissent. As I see it, the core issue in this case is, which right will prevail in
the conflict between the right of a Filipino, Ferdinand E. Marcos, to return to
the Philippines, and the right of the Philippine Government to bar such return
in the interest of national security and public safety. In this context, the issue
is clearly justiciable involving, as it does, colliding assertions of individual right
and governmental power. Issues of this nature more than explain why the
1986 Constitutional Commission, led by the illustrious former Chief Justice
Roberto Concepcion, incorporated in the 1987 Constitution, the new provision
on the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. Article VIII, Section 1, par. 2; (Emphasis
supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of
every Filipino to travel which, in the language of the Constitution, shall not be
impaired "except in the interest of national security, public safety, or public
health, as may be provided by law" (Art. III, Sec. 6). That the right to travel
comprises the right to travel within the country, to travel out of the country and
to return to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises in the
interpretation of the qualifications attached by the Constitution to such right to
travel.
Petitioners contend that, in the absence of restricting legislation, the right to
travel is absolute. I do not agree. It is my view that, with or without restricting
legislation, the interest of national security, public safety or public health can
justify and even require restrictions on the right to travel, and that the clause
"as may be provided by law" contained in Article III, Section 6 of the 1987
Constitution merely declares a constitutional leave or permission for
Congress to enact laws that may restrict the right to travel in the interest of
national security, public safety or public health. I do not, therefore, accept the
petitioners' submission that, in the absence of enabling legislation, the
Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health,
The power of the State, in particular cases, to restrict travel of its citizens
finds abundant support in the police power of the state wich may be exercised
to preserve and maintain government as well as promote the general welfare
of the greatest number of people.
And yet, the power of the State, acting through a government in authority at
any given time, to restrict travel, even if founded on police power, cannot be
absolute and unlimited under all circumstances, much less, can it be arbitrary
and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
constitutional right, i.e., the right to return to the country. 1 Have the
respondents presented sufficient evidence to offset or override the exercise of this
right invoked by Mr. Marcos? Stated differently, have the respondents shown to the
Court sufficient factual bases and data which would justify their reliance on national
security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully

weighed and assessed the "briefing" given the Court by the highest military
authorities of the land last 28 July 1989. 1 have searched, but in vain, for
convincing evidence that would defeat and overcome the right of Mr. Marcos
as a Filipino to return to this country. It appears to me that the apprehensions
entertained and expressed by the respondents, including those conveyed
through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than
real, obsessive rather than factual. Moreover, such apprehensions even if
translated into realities, would be "under control," as admitted to the Court by

said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will
know how to handle any situation brought about by a political recognition of
Mr. Marcos' right to return, and his actual return, to this country. The Court, in
short, should not accept respondents' general apprehensions, concerns and
perceptions at face value, in the light of a countervailing and even irresistible,
specific, clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are
not to be used as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its
charter. By adopting the generally accepted principles of international law as
part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine
government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to
leave any country, including his own, and to return to his country. This
guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil
and Political Rights which states that "no one shall be arbitrarily deprived of
the right to enter his own country." (Emphasis supplied) "Arbitrary" or
"arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to
protect an individual against unexpected, irresponsible or excessive encroachment
on his rights by the state based on national traditions or a particular sense of justice
which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos
of the President, have raised the argument of "national security" and "public
safety," it is the duty of this Court to unquestioningly yield thereto, thus
casting the controversy to the realm of a political question. I do not agree. I
believe that it is one case where the human and constitutional light invoked
by one party is so specific, substantial and clear that it cannot be
overshadowed, much less, nullified by simplistic generalities; worse, the
Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading
what, to me, is its clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one
could validly defend the right of former Senator Benigno S. Aquino, Jr., a
Filipino, to return to the Philippines in 1983 and, at the same time, credibly
deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in
1989. I still have not found a satisfactory answer to that question. Instead, it
has become clearer by the day that the drama today is the same drama in
1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not
be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing,
personal, political or otherwise, the following are the cogent and decisive
propositions in this case

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried
in this country;
2. respondents have not shown any "hard evidence" or convincing proof why
his right as a Filipino to return should be denied him. All we have are general
conclusions of "national security" and "public safety" in avoidance of a
specific demandable and enforceable constitutional and basic human right to
return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue
today, requires of all members of the Court, in what appears to be an
extended political contest, the "cold neutrality of an impartial judge." It is only
thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the
exercise of the powers granted by the Constitution, the President may prohibit
the Marcoses from returning to the Philippines." 1 I therefore take exception to
allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I
have legitimate reason to fear that my brethren, in passing judgment on the
Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped
the bounds of judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues"
facing the Court: "The right to return to one's country," pitted against "the right
of travel and freedom of abode", and their supposed distinctions under
international law, as if such distinctions, under international law in truth and in
fact exist. There is only one right involved here, whether under municipal or
international law: the light of travel, whether within one's own country, or to
another, and the right to return thereto. The Constitution itself makes no
distinctions; let then, no one make a distinction. Ubi lex non distinguish nec
nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the
Executive have the power to deny a citizen his right to travel (back to the
country or to another)? It is a question that, in essence, involves the
application, and no more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the
President is possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of

"executive power." Corollarily, the powers of the President cannot be said to

be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so
enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the Constitution,
constrained to consider these basic principles in arriving at a decision. More
than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their
welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers to the State for
the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people
become rulers, the Constitution reminds everyone that "sovereignty resides in
the people and all government authority emanates from them." [Art. II, Sec.
1.]6
And finally:
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people.
To paraphrase Theodore Roosevelt, it is not only the power of the President
but also his duty to do anything not forbidden by the Constitution or the laws
that the needs of the nation demanded [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the Constitution.
It also may be viewed as a power implicit in the President's duty to take care
that the laws are faithfully executed [See Hyman, The American President,
where the author advances the view that an allowance of discretionary power
is unavoidable in any government and is best lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the
Charter, but has them by constitutional implication* the latter must yield to the
paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a
big of rights. Precisely a constitution exists to assure that in the discharge of
the governmental functions, the dignity that is the birthright of every human
being is duly safeguarded. To be true to its primordial aim a constitution must
lay down the boundaries beyond which he's forbidden territory for state
action" 8

My brethren have not demonstrated, to my satisfaction, how the President

may override the direct mandate of the fundamental law. It will not suffice, so I
submit, to say that the President's plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right,
a titan in the field of public law, "this argument ... rests ... not upon the text of
the (Constitution] ... but upon a mere inference therefrom." 9 For if it were,
indeed, the intent of the Charter to create an exception, that is, by Presidential
action, to the right of travel or liberty of abode and of changing the same other than
what it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of
the court" 11 the Charter could have specifically declared so. As it is, the lone
deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial
mandate. Had the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the Constitution, as far
as limits to the said right are concerned, come full circle: Limits by legislative,
judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the
Marcoses from the country; neither is there any court decree banishing him
from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded
as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon
lawful order of the court, or when necessary in the interest of national
security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or
(2) "when necessary in the interest of national security, public safety, or public
health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such practices as
"hamletting", forced relocations, or the establishment of free-fire zones. 14

The new Constitution, however, so it clearly appears, has divested the

Executive's implied power. And, as it so appears, the right may be impaired
only "within the limits provided by law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting
national security 16 and foreign affairs; 17 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 hypothesis that the President may legally act, the
question that emerges is: Has it been proved that Marcos, or his return, will,
in fact, interpose a threat to the national security , public safety, or public
health?" What appears in the records are vehement insistences that Marcos
does pose a threat to the national good and yet, at the same time, we have
persistent claims, made by the military top brass during the lengthy closed-

door hearing on July 25, 1989, that "this Government will not fall" should the
former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to
the Chief Executive. The Court itself must be content that the threat is not
only clear, but more so, present. 18
That the President "has the obligation under the Constitution to protect the
people ... " 19 is an obligation open to no doubt. But the question, and so I ask
again and again, is: From whom? If we say "from Marcos," we unravel chinks in our
political armor. It also flies in the face of claims, so confidently asserted, that "this
Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen
trusted allies, implementors of martial law, and pathetic parasites of the exfirst couple are, in fact, in the Government, in the comfort of its offices, and or
at the helm of its key agencies. Let us not, therefore, joke ourselves of moral
factors warranting the continued banishment of Marcos. Morality is the last
refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the
exercise of individual liberties. 20 As I indicated, not one shred of evidence, let
alone solid evidence, other than surmises of possibilities, has been shown to justify
the 'balancing act" referred to. Worse, these conjectures contradict contentions that
as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of
the President's power as protector of peace. 21
This is the self-same falsehood Marcos foisted on the Filipino people to justify
the authoritarian rule. It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence" 22 is a
bigger fantasy: It not only summons the martial law decisions of pre-"EDSA"
(especially with respect to the detestable Amendment No. 6), it is inconsistent with
the express provisions of the commander-in-chief clause of the 1987 Charter, a
Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23

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

health beyond cure. He died, on November 11, 1977, a martyr on the altar of
the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless
apparatchiki. On August 14, 1979, he was, along with former President
Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel
Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering " 24 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 abode. 25 We would have betrayed
our own Ideals if we denied Marcos his rights. It is his constitutional right, a
right that can not be abridged by personal hatred, fear, founded or unfounded,
and by speculations of the "man's "capacity" "to stir trouble" Now that the
shoe is on the other foot, let no more of human rights violations be repeated
against any one, friend or foe. In a democratic framework, there is no this as
getting even.
The majority started this inquiry on the question of power. I hold that the
President, under the present Constitution and existing laws, does not have it.
Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and
Regalado, JJ., concur.
Feliciano, J., is on leave.
Separate Opinions
FERNAN, C.J., concurring:
"The threats to national security and public order are real the mounting
Communist insurgency, a simmering separatist movement, a restive
studentry, widespread labor disputes, militant farmer groups. . . . Each of
these threats is an explosive ingredient in a steaming cauldron which could
blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the

Court, Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently the
basis of my full concurrence to the exhaustive and well-written ponencia of
Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not
derived solely from a particular constitutional clause or article or from an
express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of
law. History and time-honored principles of constitutional law have conceded
to the Executive Branch certain powers in times of crisis or grave and
imperative national emergency. Many terms are applied to these powers:
"residual," "inherent," 44 moral," "implied," "aggregate," 'emergency."
whatever they may be called, the fact is that these powers exist, as they must
if the governance function of the Executive Branch is to be carried out
effectively and efficiently. It is in this context that the power of the President to
allow or disallow the Marcoses to return to the Philippines should be viewed.
By reason of its impact on national peace and order in these admittedly
critical times, said question cannot be withdrawn from the competence of the
Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot
but pose a clear and present danger to public order and safety. One needs
only to recall the series of destabilizing actions attempted by the so-called
Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution's aftermath to realize this. The most publicized of these offensives
is the Manila Hotel incident which occurred barely five (5) months after the
People's Power Revolution. Around 10,000 Marcos supporters, backed by
300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oathtaking of Arturo Tolentino as acting president of the Philippines. The public
disorder and peril to life and limb of the citizens engendered by this event
subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp
Aguinaldo incidents. Military rebels waged simultaneous offensives in
different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel
soldiers took over Channel 7 and its radio station DZBB. About 74 soldier
rebels attacked Villamor Air Base, while another group struck at Sangley
Point in Cavite and held the 15th Air Force Strike wing commander and his
deputy hostage. Troops on board several vehicles attempted to enter Gate I
of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted
personnel who forced their way through Gate 1 of Fort Bonifacio. They

stormed into the army stockade but having failed to convince their
incarcerated members to unite in their cause, had to give up nine (9) hours
later.
And who can forget the August 28, 1987 coup attempt which almost toppled
the Aquino Government? Launched not by Marcos loyalists, but by another
ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who
remains at large to date, this most serious attempt to wrest control of the
government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away
high-powered firearms and ammunition from the Camp Crame Armory during
a raid conducted in June 1988. Most of the group members were, however,
captured in Antipolo, Rizal. The same group was involved in an unsuccessful
plot known as Oplan Balik Saya which sought the return of Marcos to the
country.
A more recent threat to public order, peace and safety was the attempt of a
group named CEDECOR to mobilize civilians from nearby provinces to act as
blockading forces at different Metro Manila areas for the projected link-up of
Marcos military loyalist troops with the group of Honasan. The pseudo
"people power" movement was neutralized thru checkpoints set up by the
authorities along major road arteries where the members were arrested or
forced to turn back.
While not all of these disruptive incidents may be traced directly to the
Marcoses, their occurrence militates heavily against the wisdom of allowing
the Marcoses' return. Not only will the Marcoses' presence embolden their
followers toward similar actions, but any such action would be seized upon as
an opportunity by other enemies of the State, such as the Communist Party of
the Philippines and the NPA'S, the Muslim secessionists and extreme rightists
of the RAM, to wage an offensive against the government. Certainly, the state
through its executive branch has the power, nay, the responsibility and
obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to
return to the Philippines is one factor, which albeit, at first blush appears to be
extra legal, constitutes a valid justification for disallowing the requested
return. I refer to the public pulse. It must be remembered that the ouster of
the Marcoses from the Philippines came about as an unexpected, but
certainly welcomed, result of the unprecedented peoples power" revolution.
Millions of our people braved military tanks and firepower, kept vigil, prayed,
and in countless manner and ways contributed time, effort and money to put
an end to an evidently untenable claim to power of a dictator. The removal of
the Marcoses from the Philippines was a moral victory for the Filipino people;
and the installation of the present administration, a realization of and
obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is
being made to sympathy, compassion and even Filipino tradition. The political
and economic gains we have achieved during the past three years are
however too valuable and precious to gamble away on purely compassionate
considerations. Neither could public peace, order and safety be sacrificed for
an individual's wish to die in his own country. Verily in the balancing of
interests, the scales tilt in favor of presidential prerogative, which we do not
find to have been gravely abused or arbitrarily exercised, to ban the
Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at all
times, and under all circumstances. No doctrine involving more pernicious
consequences was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex
Parte Milligan as self-evident truth. But faced with a hard and delicate case,
we now hesitate to qive substance to their meaning. The Court has permitted
a basic freedom enshrined in the Bill of Rights to be taken away by
Government.
There is only one Bill of Rights with the same interpretation of liberty and the
same guarantee of freedom for both unloved and despised persons on one
hand and the rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should
not be a precedent. We are interpreting the Constitution for only one person
and constituting him into a class by himself. The Constitution is a law for all
classes of men at all times. To have a person as one class by himself smacks
of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue
before us is one of rights and not of power. Mr. Marcos is insensate and
would not live if separated from the machines which have taken over the
functions of his kidneys and other organs. To treat him at this point as one
with full panoply of power against whom the forces of Government should be
marshalled is totally unrealistic. The Government has the power to arrest and
punish him. But does it have the power to deny him his right to come home
and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national

security, public safety, or public health, as may be provided by law. (Emphasis

supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual
invocation of national security and public safety which is hauntingly familiar
because it was pleaded so often by petitioner Ferdinand E. Marcos to justify
his acts under martial law. There is, however, no showing of the existence of
a law prescribing the limits of the power to impair and the occasions for its
exercise. And except for citing breaches of law and order, the more serious of
which were totally unrelated to Mr. Marcos and which the military was able to
readily quell, the respondents have not pointed to any grave exigency which
permits the use of untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political
question beyond our jurisdiction to consider. They contend that the decision
to ban former President Marcos, and his family on grounds of national
security and public safety is vested by the Constitution in the President alone.
The determination should not be questioned before this Court. The
President's finding of danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxxxxxxxx
It is a well-settled doctrine that political questions are not within the province
of the judiciary, except to the extent that power to deal with such questions
has been conferred on the courts by express constitutional or statutory
provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to
designate all questions that he outside the scope of the judicial power. More
properly, however, it means those questions which, under the constitution, are
to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive
branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066
[1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it
means in ordinary parlance, namely, a question of policy. In other words, in
the language of Corpus Juris Secundum (supra), it refers to 'those questions
which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the Government. It is
concerned with issues dependent upon the wisdom, not legality, of a
particular measure.
The most often quoted definition of political question was made by Justice
Wilham J. Brennan Jr., who penned the decision of the United States

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

justiceability and to ignore a plea for the enforcement of an express Bill of

Rights guarantee.
The respondents themselves are hard-pressed to state who or what
constitutes a Marcos "loyalist." The constant insinuations that the "loyalist"
group is heavily funded by Mr. Marcos and his cronies and that the "loyalists"
engaging in rallies and demonstrations have to be paid individual allowances
to do so constitute the strongest indication that the hard core "loyalists" who
would follow Marcos right or wrong are so few in number that they could not
possibly destabilize the government, much less mount a serious attempt to
overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged
a "loyalist." It is in the best of Filipino customs and traditions to allow a dying
person to return to his home and breath his last in his native surroundings.
Out of the 103 Congressmen who passed the House resolution urging
permission for his return, there are those who dislike Mr. Marcos intensely or
who suffered under his regime. There are also many Filipinos who believe
that in the spirit of national unity and reconciliation Mr. Marcos and his family
should be permitted to return to the Philippines and that such a return would
deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.
The Court, however, should view the return of Mr. Marcos and his family
solely in the light of the constitutional guarantee of liberty of abode and the
citizen's right to travel as against the respondents' contention that national
security and public safety would be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue
exclusively to the President, there is likewise no dearth of decisional data, no
unmanageable standards which stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and
of changing the same within the limits prescribed by law may be impaired
only upon a lawful order of a court. Not by an executive officer. Not even by
the President. Section 6 further provides that the right to travel, and this
obviously includes the right to 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 doctrine so often invoked by then President Marcos to justify his acts
is now being used against him and his family. Unfortunately, the Court should
not and is not allowed to indulge in such a persiflage. We are bound by the
Constitution.
The dim view of the doctrine's use was such that when the present
Constitution was drafted, a broad definition of judicial power was added to the
vesting in the Supreme Court and statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political
question doctrine as a means to avoid having to make decisions simply
because they are too controversial, displeasing to the President or Congress,
inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political
question doctrine allowed the Court during the Marcos years to fall back on
prudence, institutional difficulties, complexity of issues, momentousness of
consequences or a fear that it was extravagantly extending judicial power in
the cases where it refused to examine and strike down an exercise of
authoritarian power. Parenthetically, at least two of the respondents and their

counsel were among the most vigorous critics of Mr. Marcos (the main
petitioner) and his use of the political question doctrine. The Constitution was
accordingly amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to the question
doctrine. We are compelled to decide what would have been non-justiceable
under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we
may refuse to resolve. There are still some political questions which only the
President, Congress, or a plebiscite may decide. Definitely, the issue before
us is not one of them.
The 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 [19051), the Court was faced with a
similar situation. It posed a rhetorical question. If after investigating conditions
in the Archipelago or any part thereof, the President finds that public safety
requires the suspension of the privilege of the writ of habeas corpus, can the
judicial department investigate the same facts and declare that no such
conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second
paragraph of Section 1, Article VIII of the Constitution, the court granted the
Solicitor General's offer that the military give us a closed door factual briefing
with a lawyer for the petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente
Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain
whether or not the president acted arbitrarily in suspending the writ when, in
the truth words of Montenegro, with its very limited machinery fit] cannot be in
better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It
must rely on the Executive Branch which has the appropriate civil and military
machinery for the facts. This was the method which had to be used in
Lansang. This Court relied heavily on classified information supplied by the
military. Accordingly, an incongruous situation obtained. For this Court, relied
on the very branch of the government whose act was in question to obtain the
facts. And as should be expected the Executive Branch supplied information
to support its position and this Court was in no situation to disprove them. It
was a case of the defendant judging the suit. After all is said and done, the

attempt by its Court to determine whether or not the President acted

arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached
attitude and refrain from giving the seal of approval to the act of the Executive
Branch. For it is possible that the suspension of the writ lacks popular support
because of one reason or another. But when this Court declares that the
suspension is not arbitrary (because it cannot do otherwise upon the facts
given to it by the Executive Branch) it in effect participates in the decisionmaking process. It assumes a task which it is not equipped to handle; it lends
its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial
notice would be the only basis for determining the clear and present danger
to national security and public safety. The majority of the Court has taken
judicial notice of the Communist rebellion, the separatist movement, the
rightist conspiracies, and urban terrorism. But is it fair to blame the present
day Marcos for these incidents? All these problems are totally unrelated to the
Marcos of today and, in fact, are led by people who have always opposed
him. If we use the problems of Government as excuses for denying a
person's right to come home, we will never run out of justifying reasons.
These problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos
policy in order to ascertain whether or not the respondents acted with grave
abuse of discretion. Nor are we forced to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President
that a clear and present danger to national security and public safety will arise
if Mr. Marcos and his family are allowed to return to the Philippines. It was
only after the present petition was filed that the alleged danger to national
security and public safety conveniently surfaced in the respondents'
pleadings. Secondly, President Aquino herself limits the reason for the ban
Marcos policy to-41) national welfare and interest and (2) the continuing need
to preserve the gains achieved in terms of recovery and stability. (See page
7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the
criteria of national security and public safety. The President has been quoted
as stating that the vast majority of Filipinos support her position. (The Journal,
front page, January 24,1989) We cannot validate their stance simply because
it is a popular one. Supreme Court decisions do not have to be popular as
long as they follow the Constitution and the law. The President's original
position "that it is not in the interest of the nation that Marcos be allowed to
return at this time" has not changed. (Manila Times, front page, February 7,
1989). On February 11, 1989, the President is reported to have stated that
"considerations of the highest national good dictate that we preserve the
substantial economic and political gains of the past three years" in justifying

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

combined groups will not succeed and that the military is on top of the
situation. Where then is the clear danger to national security? The Court has
taken judicial notice of something which even the military denies. There would
be severe strains on military capabilities according to General de Villa. There
would be set-backs in the expected eradication of the Communist threat.
There would be other serious problems but all can be successfully contained
by the military. I must stress that no reference was made to a clear and
present danger to national security as would allow an overriding of the Bill of
Rights.
The Solicitor General's argument that the failure of Congress to enact a
statute defining the parameters of the right to travel and to freely choose
one's abode has constrained the President to fill in the vacuum, is too
reminiscent of Amendment No. 6 of the martial law Constitution to warrant
serious consideration. Amendment No. 6 allowed Marcos to issue decrees
whenever the Batasang Pambansa failed or was unable to act adequately on
any matter for any reason that in his judgment required immediate action.
When the Bill of Rights provides that a right may not be impaired except in
the interest of national security, public safety, or public health and further
requires that a law must provide when such specifically defined interests are
prejudiced or require protection, the inaction of Congress does not give
reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts
does not obstruct us from ruling against an unconstitutional assertion of
power by Philippine officials. Let the United States apply its laws. We have to
be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The
agony of traveling while hooked up to machines which have taken over the
functions of his heart, lungs, and kidneys may hasten his death. The physical
condition of Mr. Marcos does not justify our ignoring or refusing to act on his
claim to a basic right which is legally demandable and enforceable. For his
own good, it might be preferable to stay where he is. But he invokes a
constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld
if to do so would run counter to a constitutional guarantee. Besides, the
petitioners are not asking for passports and nothing else. Any travel
documents or any formal lifting of the Marcos ban as would allow international
airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the
right to travel. I do not think we should differentiate the right to return home
from the right to go abroad or to move around in the Philippines. If at all, the
right to come home must be more preferred than any other aspect of the right
to travel. It was precisely the banning by Mr. Marcos of the right to travel by
Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other

"undesirables" and "threats to national security" during that unfortunate period

which led the framers of our present Constitution not only to re-enact but to
strengthen the declaration of this right. Media often asks, "what else is new?"
I submit that we now have a freedom loving and humane regime. I regret that
the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom
we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has
disclosed a list of former dictators who were barred by their successors from
returning to their respective countries. There is no showing that the countries
involved have constitutions which guarantee the liberty of abode and the
freedom to travel and that despite such constitutional protections, the courts
have validated the "ban a return" policy. Neither is it shown that the
successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are
conducting a campaign to sow discord and to divide the nation. Opposition to
the government no matter how odious or disgusting is, however, insufficient
ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is
the Government helpless to defend itself against a threat to national security?
Does the President have to suspend the privilege of the writ of habeas corpus
or proclaim martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried
in court. The Government has more than ample powers under eixisting law to
deal with a person who transgresses the peace and imperils public safety. But
the denial of travel papers is not one of those powers because the Bill of
Rights says so. There is no law prescribing exile in a foreign land as the
penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to
return to and live-and die-in his own country. I say this with a heavy heart but
say it nonetheless. That conviction is not diminished one whit simply because
many believe Marcos to be beneath contempt and undeserving of the very
liberties he flounted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question
before us, nor can we resolve it. The question we must answer is whether or
not, assuming that Marcos is permitted to leave Hawaii (which may depend
on the action we take today), the respondents have acted with grave abuse of
discretion in barring him from his own country.

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

phantom. That phantom did not rise when the people stood fast at EDSA
against the threat of total massacre in defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three
decades as a professor of Constitutional Law. These principles have not
changed simply because I am now on the Court or a new administration is in
power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the
Philippines against the prohibitions of the government then, Marcos is entitled
to the same right to travel and the liberty of abode that his adversary invoked.
These rights are guaranteed by the Constitution to all individuals, including
the patriot and the homesick and the prodigal son returning, and tyrants and
charlatans and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are
we ready to be also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should
be allowed to return to the Philippines may be resolved by answering two
simple questions: Does he have the right to return to his own country and
should national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both
under the Universal Declaration of Human Rights and the 1987 Constitution
of the Philippines, he has the right to return to his own country 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:
I dissent. As I see it, the core issue in this case is, which right will prevail in
the conflict between the right of a Filipino, Ferdinand E. Marcos, to return to
the Philippines, and the right of the Philippine Government to bar such return
in the interest of national security and public safety. In this context, the issue

is clearly justiciable involving, as it does, colliding assertions of individual right

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

Court sufficient factual bases and data which would justify their reliance on national
security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully

weighed and assessed the "briefing" given the Court by the highest military
authorities of the land last 28 July 1989. 1 have searched, but in vain, for
convincing evidence that would defeat and overcome the right of Mr. Marcos
as a Filipino to return to this country. It appears to me that the apprehensions
entertained and expressed by the respondents, including those conveyed
through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than
real, obsessive rather than factual. Moreover, such apprehensions even if
translated into realities, would be "under control," as admitted to the Court by
said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will
know how to handle any situation brought about by a political recognition of
Mr. Marcos' right to return, and his actual return, to this country. The Court, in
short, should not accept respondents' general apprehensions, concerns and
perceptions at face value, in the light of a countervailing and even irresistible,
specific, clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are
not to be used as a pretext to justify derogation of human rights. 2
As a member of the United Nations, the Philippines has obligations under its
charter. By adopting the generally accepted principles of international law as
part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine
government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to
leave any country, including his own, and to return to his country. This
guarantee is reiterated in Art. XII, par. 2 of the International Covenant on Civil
and Political Rights which states that "no one shall be arbitrarily deprived of
the right to enter his own country." (Emphasis supplied) "Arbitrary" or
"arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to
protect an individual against unexpected, irresponsible or excessive encroachment
on his rights by the state based on national traditions or a particular sense of justice
which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos
of the President, have raised the argument of "national security" and "public
safety," it is the duty of this Court to unquestioningly yield thereto, thus
casting the controversy to the realm of a political question. I do not agree. I
believe that it is one case where the human and constitutional light invoked
by one party is so specific, substantial and clear that it cannot be
overshadowed, much less, nullified by simplistic generalities; worse, the
Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading
what, to me, is its clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one
could validly defend the right of former Senator Benigno S. Aquino, Jr., a
Filipino, to return to the Philippines in 1983 and, at the same time, credibly
deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in
1989. I still have not found a satisfactory answer to that question. Instead, it
has become clearer by the day that the drama today is the same drama in
1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not
be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing,
personal, political or otherwise, the following are the cogent and decisive
propositions in this case1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried
in this country;
2. respondents have not shown any "hard evidence" or con- vincing proof
why his right as a Filipino to return should be denied him. All we have are
general conclusions of "national security" and "public safety" in avoidance of
a specific demandable and enforceable constitutional and basic human right
to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue
today, requires of all members of the Court, in what appears to be an
extended political contest, the "cold neutrality of an impartial judge." It is only
thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the
exercise of the powers granted by the Constitution, the President may prohibit
the Marcoses from returning to the Philippines." 1 I therefore take exception to
allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I
have legitimate reason to fear that my brethren, in passing judgment on the
Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped
the bounds of judicial restraint, or even worse, convicted them without trial.

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

As the majority would indeed have it, the issue is one of power: Does the
Executive have the power to deny a citizen his right to travel (back to the
country or to another)? It is a question that, in essence, involves the
application, and no more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law. 4
The majority says, with ample help from American precedents, that the
President is possessed of the power, thus:
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so
enumerated. 5
So also:
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the Constitution,
constrained to consider these basic principles in arriving at a decision. More
than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their
welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract
whereby the people have surrendered their sovereign powers to the State for
the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people
become rulers, the Constitution reminds everyone that "sovereignty resides in
the people and all government authority emanates from them." [Art. II, Sec.
1.]6
And finally:
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the people.
To paraphrase Theodore Roosevelt, it is not only the power of the President
but also his duty to do anything not forbidden by the Constitution or the laws
that the needs of the nation demanded [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and defend the Constitution.
It also may be viewed as a power implicit in the President's duty to take care
that the laws are faithfully executed [See Hyman, The American President,

where the author advances the view that an allowance of discretionary power
is unavoidable in any government and is best lodged in the President]. 7
I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the
Charter, but has them by constitutional implication* the latter must yield to the
paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a
big of rights. Precisely a constitution exists to assure that in the discharge of
the governmental functions, the dignity that is the birthright of every human
being is duly safeguarded. To be true to its primordial aim a constitution must
lay down the boundaries beyond which he's forbidden territory for state
action" 8
My brethren have not demonstrated, to my satisfaction, how the President
may override the direct mandate of the fundamental law. It will not suffice, so I
submit, to say that the President's plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in Ms own right,
a titan in the field of public law, "this argument ... rests ... not upon the text of
the (Constitution] ... but upon a mere inference therefrom." 9 For if it were,
indeed, the intent of the Charter to create an exception, that is, by Presidential
action, to the right of travel or liberty of abode and of changing the same other than
what it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of
the court" 11 the Charter could have specifically declared so. As it is, the lone
deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial
mandate. Had the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the Constitution, as far
as limits to the said right are concerned, come full circle: Limits by legislative,
judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the
Marcoses from the country; neither is there any court decree banishing him
from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded
as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon
lawful order of the court, or when necessary in the interest of national
security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or
(2) "when necessary in the interest of national security, public safety, or public
health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such practices as
"hamletting", forced relocations, or the establishment of free-fire zones. 14

The new Constitution, however, so it clearly appears, has divested the

Executive's implied power. And, as it so appears, the right may be impaired
only "within the limits provided by law . 15 The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting
national security 16 and foreign affairs; 17 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 hypothesis that the President may legally act, the
question that emerges is: Has it been proved that Marcos, or his return, will,
in fact, interpose a threat to the national security , public safety, or public
health?" What appears in the records are vehement insistences that Marcos
does pose a threat to the national good and yet, at the same time, we have
persistent claims, made by the military top brass during the lengthy closeddoor hearing on July 25, 1989, that "this Government will not fall" should the
former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to
the Chief Executive. The Court itself must be content that the threat is not
only clear, but more so, present. 18
That the President "has the obligation under the Constitution to protect the
people ... " 19 is an obligation open to no doubt. But the question, and so I ask
again and again, is: From whom? If we say "from Marcos," we unravel chinks in our
political armor. It also flies in the face of claims, so confidently asserted, that "this
Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen
trusted allies, implementors of martial law, and pathetic parasites of the exfirst couple are, in fact, in the Government, in the comfort of its offices, and or
at the helm of its key agencies. Let us not, therefore, joke ourselves of moral
factors warranting the continued banishment of Marcos. Morality is the last
refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the
exercise of individual liberties. 20 As I indicated, not one shred of evidence, let
alone solid evidence, other than surmises of possibilities, has been shown to justify
the 'balancing act" referred to. Worse, these conjectures contradict contentions that
as far as Philippine society is concerned, Marcos is "history".

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

the express provisions of the commander-in-chief clause of the 1987 Charter, a

Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973
counterpart. 23

II.
The undersigned would be lacking in candor to conceal his dislike, to say the
least, for Marcos. Because of Marcos, the writer of it's dissent lost a son His
son's only "offense" was that he openly and unabatedly criticized the dictator,
his associates, and his military machinery. He would pay dearly for it; he was
arrested and detained, without judicial warrant or decision, for seven months
and seven days. He was held incommunicado a greater part of the time, in
the military stockade of Camp Crame. In his last week in detention, he was,
grudgingly, hospitalized (prison hospital) and confined for chronic asthma.
The deplorable conditions of his imprisonment exacerbated his delicate
health beyond cure. He died, on November 11, 1977, a martyr on the altar of
the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless
apparatchiki. On August 14, 1979, he was, along with former President
Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel
Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering " 24 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 Ms crimes to country and countrymen. If
punishment is due, let this leadership inflict it. But let him stand trial and
accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right
of travel and movement and the liberty of abode. 25 We would have betrayed
our own Ideals if we denied Marcos his rights. It is his constitutional right, a
right that can not be abridged by personal hatred, fear, founded or unfounded,
and by speculations of the "man's "capacity" "to stir trouble" Now that the
shoe is on the other foot, let no more of human rights violations be repeated
against any one, friend or foe. In a democratic framwork, there is no this as
getting even.

The majority started this inquiry on the question of power. I hold that the
President, under the present Constitution and existing laws, does not have it.
Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and
Regalado, JJ., concur.
Feliciano, J., is on leave.