Professional Documents
Culture Documents
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* EN BANC.
669
which treats only of the liberty of abode and the right to travel,
but it is our wellconsidered view that the right to return may be
considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution]. However, it is distinct and separate
from the right to travel and enjoys a different protection under
the International Covenant of Civil and Political Rights,
i.e.,against being arbitrarily deprived thereof [Art. 12 (4)].
670
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671
Same; Same; Same; Same; The President has the power under
the Constitution to bar the Marcoses from returning to our country.
That the President has the power under the Constitution to bar
the Marcoses from returning has been recognized by members of
the Legislature, and is manifested by the Resolution proposed in
the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the
Philippines as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence
to uncompromising respect for human rights under the
Constitution and our laws. [House Resolution No. 1342, Rollo, p.
321.] The Resolution does not question the Presidents power to
bar the Marcoses from returning to the Philippines, rather, it
appeals to the Presidents sense of compassion to allow a man to
come home to die in his country. What we are saying in effect is
that the request or demand of the Marcoses to be allowed to
return to the Philippines cannot be considered in the light solely
of the constitutional provisions guaranteeing liberty of abode and
the right to travel, subject to certain exceptions, or of case law
which clearly never contemplated situations even remotely
similar to the present one. It must be treated as a matter that is
appropriately addressed to those residual unstated powers of the
President which are implicit in and correlative to the paramount
duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to
the exercise of a broader discretion on the part of the President to
determine whether it must be granted or denied.
672
673
674
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675
Same; Same; Same; Same; The Court has the last word when
it comes to Constitutional liberties.There is also no disrespect
for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation
and defense of which all of us in Government, the President and
Congress included, are sworn to participate. Significantly, the
President herself has stated that the Court has the last word
when it comes to constitutional liberties and that she would abide
by our decision.
676
critics of Mr. Marcos (the main petitioner) and his use of the
political question doctrine. The Constitution was accordingly
amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to
the political question doctrine. We are compelled to decide what
would have been nonjusticeable under our decisions interpreting
earlier fundamental charters. This is not to state that there can
be no more political questions which we may refuse to resolve.
There are still some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue before
us is not one of them.
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transgresses the peace and imperils public safety. But the denial
of travel papers is not one of those powers
677
678
679
680
681
question that emerges is: Has it been proved that Marcos, or his
return, will, in fact, interpose a threat to the national security,
public safety, or public health? What appears in the records are
vehement insistences that Marcos does pose a threat to the
national goodand yet, at the same time, we have persistent
claims, made by the military top brass during the lengthy closed
door hearing on July 25, 1989, that this Government will not fall
should the former first family in exile step on Philippine soil.
Which is which? At any rate, it is my opinion that we can not
leave that determination solely to the Chief Executive. The Court
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itself must be content that the threat is not only clear, but more
so, present.
CORTS, J.:
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The Petition
683
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The Issue
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684
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685
Article 12
686
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Executive Power
689
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_______________
691
692
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693
694
696
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697
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698
the State, that would be the time for the President to step
in and exercise the commanderinchief powers granted her
by the Constitution to suppress or stamp out such violence.
The State, acting through the Government, is not
precluded from taking preemptive action against threats
to its existence if, though still nascent, they are perceived
as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The
preservation of the Statethe fruition of the peoples
sovereigntyis an obligation in the highest order. The
President, sworn to preserve and defend the Constitution
and to see the faithful execution the laws, cannot shirk
from that responsibility.
We cannot also lose sight of the fact that the country is
only now beginning to recover from the hardships brought
about by the plunder of the economy attributed to the
Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to
destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover
the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by
the excessive foreign borrowing during the Marcos regime,
which stifles and stagnates development and is one of the
root causes of widespread poverty and all its attendant ills.
The resulting precarious state of our economy is of common
knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization
caused by the return of the Marcoses would wipe away the
gains achieved during the past few years and lead to total
economic collapse. Given what is within our individual and
common knowledge of the state of the economy, we cannot
argue with that determination.
WHEREFORE, and it being our wellconsidered opinion
that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former
President Marcos and his family at the present time and
under present circumstances poses a serious threat to
national interest and welfare and in prohibiting their
return to the Philippines, the
699
SO ORDERED.
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700
701
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x x x x x x x x x
It is a wellsettled doctrine that political questions are not
within the province of the judiciary, except to the extent that
power to deal with such questions has been conferred on the
courts by express constitutional or statutory provisions. It is not
so easy, however, to define the phrase political question, nor to
determine what matters fall within its scope. It is frequently used
to designate all questions that lie outside the scope of the judicial
power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive
branch of the government.
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describe a
705
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706
708
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of them.
The Constitution requires the Court to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction.
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present
evidence. Unfortunately, considerations of national security
do not readily lend themselves to the presentation of proof
before a court of justice. The vital information essential to
an objective determination is usually highly classified and
it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93
[1905]), the Court was faced with a similar situation. It
posed a rhetorical question. If after investigating conditions
in the Archipelago or any part thereof, the President finds
that public safety requires the suspension of the privilege
of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such
conditions exist?
In the effort to follow the grave abuse of discretion
formula in the second paragraph of Section 1, Article VIII
of the Constitution, the court granted the Solicitor
Generals offer that the military give us a closed door
factual briefing with a lawyer for the petitioners and a
lawyer for the respondents present.
The results of the briefing call to mind the concurrence
of Justice Vicente Abad Santos in Morales, Jr. v. Enrile,
(121 SCRA 538, 592 [1983]):
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How can this Court determine the factual basis in order that it
can ascertain whether or not the president acted arbitrarily in
suspending the writ when, in the truthful words of Montenegro,
with its very limited machinery [it] cannot be in better position
[than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer
is obvious. It must rely on the Executive Branch which has the
appropriate civil and military machinery for the facts. This was
the method which had to be used in Lansang. This Court relied
heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court,
relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the
Executive Branch supplied information to support its position and
this
710
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715
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716
I dissent. As I see it, the core issue in this case is, which
right will prevail in the conflict between the right of a
Filipino, Ferdinand E. Marcos, to return to the Philippines,
and the right
718
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_______________
720
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721
1. Mr. Marcos5
is a Filipino and, as such, entitled to
return to, die and be buried in this country;
2. respondents have not shown any hard evidence or
convincing proof why his right as a Filipino to
return should be denied him. All we have are
general conclusions of national security and
public safety in avoidance of a specific
demandable and enforceable constitutional and
basic human right to return;
3. the issue of Marcos return to the Philippines,
perhaps more than any issue today, requires of all
members of the Court, in what appears to be an
extended political contest, the cold neutrality of an
impartial judge. It is only thus that we fortify the
independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and
only to the Constitution.
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5 As to whether the U.S. Federal Government will allow Mr. Marcos to
leave the United States, is beyond the issues in this case; similarly, as to
how the Philippine government should deal with Mr. Marcos upon his
return is also outside of the issues in this case.
722
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
4
health, as may be provided by law.
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1 Decision, 4.
2 Seesupra,14.
3 Supra,2.
4 CONST., art. III, sec. 6.
723
And finally: