EN BANC - GR 88211 Sep.

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 YÑIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.

Topic:
What is the scope of the executive power? – Express, implied/residual powers
Doctrine:
Residual Power –whatever power inherent in the government that is neither legislative nor
judicial has to be executive
Facts:
Ferdinand E. Marcos was deposed from the presidency via the non-violent "people power"
revolution and forced into exile. Now, Mr. Marcos, in his deathbed, wish to return to the
Philippines to die. But the President, considering the dire consequences to the nation of his
return, has stood firmly on the decision to bar the return of Mr. Marcos and his family.
Issue:
W/O the President may prohibit the Marcoses from returning to the Philippines? - Yes
Held:
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.

Ratio:
- Right to travel and return:
o Right involved in this case is not to travel but to return.
o The Right to return is not guaranteed in the bill of rights however is a generally
accepted principle under international law but this issue is only tangentially
material, and an appropriate case will have to be awaited.
- Executive Power:
o Executive Power is not limited to what is provided in the constitution.
o The President has the duty to protect the people, promote their welfare and
advance the national interest hence can bar the Marcoses.
o President’s power to bar the Marcoses from returning was recognized by the
Legislature.
o whatever power inherent in the government that is neither legislative nor judicial
has to be executive
 rhl il,j\Nf, executive power is more than the sum of specific powers so enumerated.
6" ID.; PRESIDENT,S RESIDUAL POWER TO PROTECT THE GENERAL WELFARE OF
[G.R. No. 8821 l september 5, 1989.]
1 THE PEOPLE; THE POWERS INVOLVED. * The power involved is the President's
residual power to protect the general welfare of the people. lt is founded on the duty of
R. MARCOS, FERDINAND the President, as steward of the people. To paraphrase Theodore Roosevell, it is not
FERDINAND E. MARCOS, IMELDA R.
only the power of the President but also hls duty to do anything not forbidden by the
MARCOS, JR., IRENE M. ARANETA, IMEE M- MANOTOC, TOMAS Constilution or the laws that the needs of the nation demand. The President is not only
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
clothed wilh extraordinary powers in times of emergency, but is also lasked with
YNIIGUEZ ANd PHILIPPINE CONSTITUTION ASSOCIATION
atiending to the day-to-day problems of maintaining peace and order and ensuring
(PHILCONSA), represented by itsPresident, CONRADO F'
domestic tranquillity in times when no foreign foe appears on the horizon. Wide
isrnrua, petitioners, vs. HONORABLE RAUL MANGLAPUS,
discretion, within the bounds of law, in fulfilling presidential duties intimes of peace is
CATALINO MACARAIG, SEDFREY ORDONTZ, MIRIAM DEFENSOR not in any way diminished by the relative want of an emergency specitted in the
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as ao 66 nfl er-i n-ch ief p rovi s io n.
Foreign Affairs, Executive Secretary, Secretary of
of r'r1
Secretary
Ju$tice, immigration Commissioner, Secretary of National Defense 7. lD"; LIBERTY OF ABODE AND RIGHT T0 TRAVEL; REQUEST TO BE ALLOWED
and Chief of Staff, respectively, respandents. TO RETURN TO THE PHILIPPINES; TO BE TREATED AS ADDRESSED TO THE RESIDUAL
UNSTATED POWERS oF THE PRESIDENT. - The request 0r demand of the Marcoses to
be allowed to return to the Philippines cannot be considered in the light soleiy of the
constilutional provisions guaranteeing liberty of abode and the right to travel, subject
to certain exceptions, or of case law which clearly never conternplated $ituations even
I.CONSTITUT|ONALLAW;BILLOFRIGHTS;RIGHTTORETURNTOONE'S remotely similar to the present one. lt must be treated as a matler that is appropriately
couNTRY NoT AMONG THr RlGHl"S GUARANTTED.
* Tlre right to return to one's addressed to those residual unstated powers of the President which are inrplicit in and
country is not among the rights specifically guaranteed in the Bill of Righls, which treats correlative to the paramount duty residing in that offtce to safeglard and protect
only of the liberty of abode and the right to travel. general welfare. ln that context, such request or demand should submit to the exercise
2. lD.; 10.; RIGHT TO RETURN CONSIDERED AS A GENERALLY ACCEPTED of a broader discretion on the part of the President to determine whether it must be
PRINCIPLE OF INTERNATIONAL LAW. -
lt is the court's well-considered view that the granted or denied"
right to return may be considered, as a generally accepted principle of international law 8. lD.; JUDICIAL REVIEW; poWER To OETERMINE GRAVE ABUSE OF Dl$CRETION
aicj under our Constitulion, is part of the law of tlre land [Art. Il Sec 2 of the
OR EXCESS OF JURISDICTION ON ANY BRANCH OR INSTRUMENTALIry OF THE
Constitulion.l GOVIRNMENT. *'The present Constitution limits resort to the political question
3. lD.; lD.; RIGHT T0 RETURN, DISTINCT Al'iD SEpARATE FR0M THE RIGHT TO doctrine and broadens the scope of judicial inquiry into areas which the Court, under
TRAVEL. * lt is distinct and separate from the right to travel and enjoys a different previous constitutions, would have normally left to the political departmerits to decide.
protection uncler the lnternational Covenant of Civii and Political Rights, le., against The deliberations of the Conslitutional Commission cited by petitioners show that the
being "arbitrarily deprived" thereof [Art. 12 (4).1 framers intended to r,videnthe scope of judicial review but they did not intend courts of
justice to settle all actual controversies before them. When political questions are
4. lD.; ALLoCATIoN oF PoWER lN THE THREE BRANCHES oF G0VERNMENT A involved, the Constitution limits lhe determination to whethel or not there has been a
GRANT OF ALL THE POWERS INHERENT THERETO. - As the supreme court in grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
ocampo u cabangis [1 5 Phil. 526 (1910)] pointed out "a grant of the legislative power official whose action is being queslioned.
means a grant of all legislative power; and a grant of the judicial power-means a grant
of all the iudicial poweiwhich may be exercised under the government.' [At 631-632.] lf 9. lD; LIBERTY 0F ABODE AND RIGHT TO TRAVEL; DENIAL OF REQUEST TO BE
this can be said of the legislative power which is exercised by two chambers with a ALTOWED TO RETURN TO THE PHILIPPINES, NOT A GRAVE ABUSE OF DISCRETION. -
combined membership of more than two hundred members and of the judicial power We frnd that from the pleadings ftled by the parties, from their oral arguments, and the
which is vested in a hierarchy of courts, it can equally be sald of the executive power facts revealed during the briefrng in chambers by the Chief of Staff of the Armed Forces
which is vested in one official * the Fresident. of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's decision.
5. lD.; PRESIDENT,S PoWER UNDER THE 1987 CoNST|TUT|oN; EXTENT AND The documented history of the efforts of the Marcoses and their followers to
LIMITATION. - Consideration of tradition and the development of presidenlial power destabilize the country, as earlier narrated inlhis ponencia bolsters the conclusion that
under the different constitutions are essential {or a comple'te understanding of the the return of the Marcoses at this time would only exacerbate and inlensify the violence
extent of and lirnitations to the President's powers under the 1987 Constitution. directed against the Slate and instigate more chaos. With these before her, the
Although the 1987 Constitution lmposes limitations on the exercise of specillc powers President cannot be said to have acted arbitrarily and capriciously and whimsically in
of the Fresident, it maintains intact what is traditionally considered as within the scope determining that the return of the Marcoses poses a serious threat to the national
of "executive power." Corollarily, the powers of the President cannot be said to be interest and welfare and in prohibiting their return.
limited only io the specifrc powers enumerated in the Constitution. ln other words, aD Te, hno,r! c, qr u . r l01ll
CD iqr:lnnr!91e. Asia. lnc. q 201q
 GUTIERREZ, JR., J.: dissenting: accordingly amended. We are now precluded by its mandate from refusing to invalidate
'1. CQNSTITUTION,AL LAW; CONSTITUTI0N; ITS PROVISIONS PROTECT ALL a political use of power through a convenient resorl to the political question doctrine.

MEN, AT ALL TIMES AND UNDER ALL CIRCUMSTANCES.

,,ThE *
CONStitUtiON ' , , iS A
We are cornpelled to decide what would have been non-justiceable under our decisions
interpreting earlier fundamental charters.
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 circurnstances. No doctrine 7, ID.; LIBERTY OF ABCIDE AND RIGHT TO TMVEL; DENIAL A GRAVE ABUSE OF
involving more pernicious consequences was ever invented by the wit of man than that DISCRETION. *
We do not have to look into the factual bases of the ban Marcos policy
any of its provisions can be suspended during any of the greal exigencies of in order to ascertain whether or not the respondents acted with grave abuse of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866]). discretion. Nor are we forced to fall back uponiudicial notice of the implications of a
Marcos return to his home to buttress a conclusion, ln the frrst place, there has never
2. lD.; POLITICAL QUESTIONS; 0UTSIDE THE SCOPE OF JUDICIAL been a pronouncement by the President that a clear and present danger to national
DETERMINATION, - lt is a well-settled doctrine that politicalpower
questions are not within
security and public safety will arise if Mr. Marcos and his family are allowed to roturn to
the province of the judiciary, except to lhe extent that to deal with such
the Philippines. lt was only after the present petition was filed that the alleged danger
questions has been conferred on the court$ by express constitutional or statutory to national security and public safety convenienlly surfaced in the respondents'
provisions. pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos
3. lD.; lD.; CONSTRUED. - lt is not so easy, however, to define the phrase political policy to (1) national welfare and interest and (2) the continuing need to preserve the
question, nor to determine what matters fall within its scope. lt is frequently used to gains achieved in term$ of recovery and stability. Neither ground satisftes the criteria of
designate all questions that lie outside the scope of the judicial power. More properly, national security and public safety. The "confluence theory" of the Solicitor General or
however, il means those questions which, under the constitution, are to be decided by what the majority calls "catalytic effect," which alone sustains the claim of danger to
the people in their sovereign capacity, or in regard to which full discretionary authority national security is fraught with perilous implicatione, Any difficult problem or any
has been delegated to the legislative cr executive branch of the government' troublesome per$on can be substituted for the Marcos threat as the catalysing factor.
It was precisely the banning by Mr. Mareos of the right to travel by $enators Benigno
4. lD.; lD.; CONSTITUTIONAL POWER VESTED EXCLUSIVETY lN THE PRESIDENT
Aquino, Jr,, Jovito Salonga, and scores of other "undesirables" and "threats to national
OR CONGRESS, BEYOND PROHIB ION OR EXAMINATION BY THE COURT REQUIRED
* a political question to
exi$t, there must be in the security" during that unfortunate period which led the framers of our present
FoR ITS EXISTENCE. For
Constitution not only to re-enact but to strengthen the declaration of this right.
Constitution a power vesled exclusively in the President or Congre$s, the exercise of
which the court should not examlne or prohibit. A claim of plenary or inherent power
against a civil right whlch claim is not found in a specifrc provision is dangerous.
Neither should we validate a roving commi$sion allowing public officials to $trike where
DECISION
they please and to override everylhing which to them represenls evil. The entire
Government is bound by the rule of law. The authority implied in Section 5 of the Bill of
RiEhts itself does not exist because no law has been enaeled specifying the CORTES, J:
circumstances when the right may be impaired in the interest of national security or
public safety. The power is in Congress, not the Executive. Before the Court is a controversy of grave national importance, While ostensibly
only legal issues are involved, the Court's decision in this case would undeniably have a
5. lD.; LIBERTY OF ABODE AND RIGHT T0 TRAVEL; RIGHT TO TRAVEL INOLUDES profound effect on the political, economic and other aspects of national life.
RIGHT TO TRAVEL OUT OF OR BACK TO THE PHILIPPINES. -
SCCIiON 6 Of thE BiII Of
+-..L -k\\[ We recall that in February 1986, Ferdinand E. Mareosw.as depoeed'ftom the
Rights states categorically that the liberty of abode and of changing the same within
Y Uqt
o t I presidency via the non-violent "people power' revotution and forced into exlle. ln his
the limits prescribed by law may be impaired only upon a lawful order of a court. Not by
an execulive offrcer. Not even by the President. Section 6 further provides that the right
V stead, Corazon C. Aquino was declared President of the Republic under a revolutionary
of or back in{a the government. Her ascension to and consolidation of power have not been unchallenged.
to travel, and this obviously includes the right t0 travel aut
The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the
Philippines, cannot be impaired except in the interest of national $ecurity, public safety,
takeover of television statisn Channel 7 by rebel troops led by Col. Canlas with the
or public health, as may be provided by law.
$upport of "Marcos loyalists" and the unsuccessful plot of the Marcos spouses to
6. ID.; POLITICAL QUESTION DOCIRINE NO LONGER UTILIZED BY THE COURT; surreptitiously return from Hawaii with mercenaries aboard an aircraft chartered by a
COURT COMPELLED TO DECIDE THE CASE UNDER THE 1987 CONSTITUTION. _ ThC Lebanese arms dealer lManila Bulletin, January 30, 19871 awakened the natlon to the
framers of the Constitution believed that the free use of the political queslion doctrine capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind
allowed the Court during the Marcos years lo fall back on prudence, institutional loyalty of their followers in the country. The ratification of the 1987 Constitution
diffrculties, complexity of issues, momentousness of consequences or a fear that it enshrined the victory of "people power" and also clearly roinforced the constitutional
was extravagantly extending judicial power in the cases where it refused to examine moorings of Mrs. Aquino's presldency. This did not, however, stop bloody challenges to
and slrike down an exercise of authoritarian power. Parenthetically, at least two of the the government. On Augu$t 28,1987, Col. Gregorio Honasan, one of the major players
respondents and their counsel were among the most vigorous critics of Mr. Marcos in the February Revolution, led a failed coup that left scores of people, both combatants
(the main petitioner) and his use of the political question doctrine. The Constitution was and civilians, dead. There were several other armed sorties of lesser significance, but
CD Te.hnologies Asla, lnc. g ?019
CD Technologie6 Aela, ln.. Q 2019
 the message they conveyed was the same * a split in the ranks of the military President [rlarcos and his farnily to the Philippines is a clear and present
establishment that threatened civilian supremacy over the military and broughl to the danger to national security, public safety or public health?
fore the realization that civilian government could be at the mercy of a fractious b. ,Assuming that she has made that f inding, *
military.
But the armed threats to the Government were not only found in misguided
(1) Have the requirements of due process been
complied wilh in making such finding?
elements in the military establishment and among rabid followers of Mr, Marcos. There
were alsn the communist insurgency and the seces$ionist movement in Mindanao (2) Has there been prior notice to petitioners?
which gained ground during the rule of Mr. Marcos, to the extent that the communists (3) Has there been a hearing?
have set up a parallel government of their own in the areas they effectively control whiie (4) Assuming that notice and hearing may be dispensed
the separatists are virlually free to move about in armed bands. There has been no let with, has the President's decision, including the grounds upon
up in these groups' determination to wrest power from the government. Not only which it was based, been made known to petitioners so that
through resort to arms but also through the use of propaganda have they been they may controvert the same?
successful in creating chaos and destabilizing the country,
c. ls the President's determination that the return of forrner President
Nor are the woes of the Republic purely political. The accumulated foreign debt Marcos and his family to the Philippines is a clear and present danger to
and the plunder of the nation attributed to Mr. Marcos and his eronies left the economy nalional security, public safety, or public health a political question?
devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed
offrce, have yet to show concrete results in alleviating the poverty of the masses, while d. Assuming that the Court may inquire as to whether the return of
the recovery of the ill-gotten wealth of the Marcoses has remained elusive. former President Marcos and his family is a clear and present danger to
:-.') national security, public safety, or public health, have respondents
Now Mr. Marcos, in his deathbed, has signified his wish to return to the \ f ,J,.j.,.'. established such iact?
Philippines to die. But Mrs. Aquino, considering the dire consequences to the nation of
his return at a time when the stability of government is threatened from various 3. Have lhe respondents, therefore, in implementing the president's
directions and the economy is just beginning to rise and move forward, has slood decision to bar the return of former President Marcos and his family, acted and
would be acting without jurisdiction, or in exce$s of jurisdiction, or with grave
firmly on the decision to bar the return of Mr. Marcos and his family.
abuse of discretion, in performing any act which would effectively bar the return
\/ifi.' iil1t.'l Li \

The Petition of former President Marcos and his family to the Philippines? [Memorandum for
This case is unique. lt should not create a precedent, fsr lhe case of a dictator Petitioners, pp. 5-7; Rollo, pp.234-236.1
forced out of office and into exile after causing twenty years of polilical, economic and The case for petitioners is founded 0n the as$ertion that the right of the
social havoc in the country and who within the short space of three years seeks to Marcoses to return to the Philippines is guaranteed under the following provisions of
return, is in a class by itself. _----
/ the Bill of Rights, to wit:
This petition fo{mandamui ,and prohibitior.r asks the Court to order the \'ri"\1.:.;r .
' l/:' f shall be deprived of [e, liberty, or property-wi1lqr,. I
respondents to issue tra'G-l-documents to iltr. Marcos and the immediate members of .f. '/ -Secfig-:-Ilperson
of law, nor shall any person be denied the equilproteition of the
his family and to enjoin the implementation sf lhe President's decision to bar their
return to the Philippines. L m*..ss )
',{,;i r.
The lssue xxx xxx xxx
_.1
\ss,o*
The issue is basically one of power: whether or not, in the exereise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to ,t ....".//
Section]ilhe libefi of
prescfr6ffiiE6alr not
abode. and of changing the same within the
be impaired except u"poli lawf ul order of the
limits
court \
the Philippines. o1'" 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.
According to the petitioners, the resolution of lhe case would depend on the
resolution of the following issues: 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
1. Does the President have the power to barthe return of foruner President ,,r t1
by law." Nor may the Presldent impair their right to travel because no law has
,i
, ,,, 1.,,
Marcos and his family to the Philippines? ;; authorized her to do so. They advance the view thal before the right to travel may be
a. ls this a political question? impaired by any authority or agency of the government, there must be legislation to that
effect .. i, r \
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 The petitioners further assert that under international law, the right of Mr.
rvr r'
- GuD - '',, ,,r.ai o ro''1' ]j' l
Marcos
rvrdr .1
'
.
il'i
"national security, public safety or public health" - uaranteed.
and his family to return to the Phillppines is g
"'l'"ti,. "'
The Universal Declaration of Human Rights provide*: -' ,"'
a. Has the President made a frnding that the return of former
CD TechnoLoqies Asia. lnc O ?019 cdasl'niline (on cDrerhnoroeieeAsra' nc @ ?01e dasiildrrecsl
I i,.1 1,1;r,11'0,
-\',,.j1 t, ,J..-
ii
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, ;.:;. '. I
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 Arlicle 13. (1) Everyone has the right 10 freedom of movement and if
ls there danger to national security and public safety petitioners
residence within the borders of each state. Ferdinand E. Marcos and family shall return to the Philippines and establish their
residence here? This is now a political question wlrich this Honorable Court can
(2) Everyone has the right 1o leave any country, including his own, and to not decide for it falls within the exclusive authority and competence of the
return to his country. President of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp"
)o1-1aa 1

Likewise, the lnternational Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides: Respondents argue for the primacy of the right of the State to national $ecurity
Article 12 over individual rights. ln $upport thereof, they cite Article ll of the Consiitution, to wit:

1) Everyone lawf ul!y within the tenilory of a State shall, within that terrilory, Section 4. The prime duty of lhe Government is to serye and protect the
have the right to liberty of movement and freedom to choose his residence. people. The Government may call upon the people to defend the State and, in the
fulfrllment thereof, all ciiizens may be required, under conditions provided by law,
2) Everyone shall be f ree to leave any country, including his own. tc, render personal, military, or civil service.

3) The above-mentioned rights shall not be subject to any restrictions Section 5. The mainlenance of peace and order; the protection of life,
excepl those which are provided by law, are necessary to protect national security, liberty, and property, and the promotion of the general welfare are essential for the
public order (order public), public heallh or morals or the rights and freedoms of enjoyment by all the people of the blessings of democracy.
others, and are con$istent with the other rights recognized in the present
Covenant. Respondents also point out that the decision to ban Mr. Marcos and his family
from returning to the Philippines for reasons of national security and public $afety has
4) No one shall be arbitrarily deprived of the right to enter his own country, international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza,
Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio Batista of Cuba, King Farouk o{
On the other hand, the respondents' principal argument is that the issue in this
Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of
case involves a political question which is non-justiciable. According 1o lhe Solicitor
Venezuela were among the deposed dictators whose return to their homelands was
General:
prevented by their governmenls. [See Statement 0f Foreign Affairs Secretary Raul S.
As petitioners couch it, the question involved is simply whether or not Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.1
petitioners Ferdinand E" Marcos and his family have the right to lravel and liberty
The parties are in agreement that the underlying issue is one of the scope of
of abode. petitioners invoke these cpn$titutional rights in vacuo without reference presidential power and its limits. We, however, view this i$sue in a different light, ,
to attendant circumstances. i
Although we give due weighl to the parties' formulation of the issues, we are not bound I

Respondents submit that in its proper formulation, the issue is wlrether or by its narrow c0nfine$ in arriving at a solution to the controversy.
not petitioners Ferdinand E. Marcos and family have the right to return to the At the outset, we must state that it would not do to view the case wilhin the r,..r,i'.-,' " ,r. . .
Philippines and reside here at this time ln the face of the determination by the confines of the right to-trAvd''and the import of the decisions of the U.S. Supreme Court
President that such return and residence will endanger national security and
public safety. --!fl-the]eadingcases{Kenlv.Dulles.|fi57U.s.116,78Sct.1113,2LEd.2d1204]and.,:,,-.',.
Haigv.Agee[453U.S.280, 101 SCl.2766,69 1Ed 2d640) whichaffirmedrherightto
It may be conceded that as formulated by petitioners, the question is not a -tr.avel andiecognized exceptions to the exercise thereof, re$pectively. /
. ,1,, == ,:
political question as it involves merely a determination of what the law provides It mu$t be emphasized that the individual right involved i$ nof the right to travel
on the matter and application thereof to petitioners Ferdinand E. Marcos and from the Philippines 1o other countries or within the Philippines. These are what the r ,_
family. But when the question is whether the two rights claimed by petitioners
right to travel would normally connote. Essentially, the right involved is the right to i: . I . , i' i' .i". r
Ferdinand E" Marcos and family impinge on or collide with the more primordial
return to one's country, a totally distinct right under international law, independent from
and transcendental right of the Stale to security and safely of its nationals, the -
although related to thi right to travel. Thus, the Universal Declaration of Humans Rights . i': r: 1 , l,J ,
question becomes political and this Honorable Court can not consider it. cdrep
of i \ "
.

and the lnternational Covenant on Civil and Political Rights treat the right to freedom
There are thus gradations to the question, to wit:
lr

i ..\,:..
i
movement and abode within the territory of a state, thi right to leave country, and the .$ ii"'. -.', 'r''I.' '.f ,

right to enter one's country as separate and distinct rights. The Declaration speaks of
Do petitioners Ferdinand E. Marcos and family have the right to return to ';, i
.".t1, " .. the "right to freedom of movement and residence within the borders of each state" [Art.
the Philippines and reestablish their residence here? This is clearly a justiciable '1
3(1)l separately from the "right to leave any country, including his own, and to return to
question which this Honorable Court can decide. .irr. i ,'r.' his country." [Art. 13(2).1 On the other hand, the Covenant guarantees the "right to liberly
Do petitioners Ferdinand E. Marcos and farnily have their right 10 relurn to of movement and freedom to choose his residence' [Art. 12(1 )] and the right to "be free
the Philippines and reestablish their residence here even if their return and to leave any country, including his own." lArt. 12(2)l which rights may be restricted by
residence here will endanger national security and public safety? This is still a such laws as "are necessary to protect national securiiy, public order, public health or
iusticiable question which this Honorable Court can decide. mcrals or the separate rights and freedoms of others." [Art" 12(3)] as distinguished

CD Te.hnologies Arla, lnc. 6 20Xs C0 fecino oqler ArLa, nc 6 ?0X9

 be "arbitrarily cleprived'" power which is vested in a hierarchy of courts, it carr equally be said of the executive
from the
,,right to enter his own country" of which one cannot limitations to the risht power which is vested in one official * the President.
tt,"r*Joiu u" tnuppropriate ro construe the
io"ril iri*i.r]i *orio context as tho$e pertaining to the liberty of As stated above, the Constitution provides that "[t]he executive power shall be
to return to one.s.oun,i/in-tnu same
abode and the right to travel
ve$ted in the President of the Philippines" [Art" Vll, Sec. 1].l{owever, lt does not define
t " what is meant by "executive power" although in the same article it touches on the
Therighttoreturntoone.scountryisnotamongtherightsspeciftcallyi'
ot n,ghis, which treats only of the liberty-of abode and the right
to '' ' " exercise of certain power$ by the President, i.e., the power of corlrol over all executive
ouaranteed in the Bill departments, bureaus and offices, the power to execute the laws, the appointing power,
.'
accepted prl".ipfu ot internationat
1,,*
fiA, under our Constitution' it putt ot 'r'
iravel,butitisour**ll-",;;i;;;;l.'i"*tr.".ir.e,,gr,iioreturnmaybe.consjdered,asa'i'.i. ] "''"- the powers under the commander-in-chief clause, the power to grant reprieves,
" commutations and pardons, the power to granl amnesty with the concurrence of
oenerally
ihe law of the land tnri'fi, Sec
2 of the Constitution'l Flowever' it is distinct and : i
and enloys a difierent protection under the i" "''-1 , Congress, the power to contract or guarantee foreign loans, lhe power to enter into
seoarate from the ,ighi'io-iravel"Lirii-
I'e', against being "arbitrarily "t,''' i treaties or international agreements, the power to submit the budget to Congress, and
tnternational Covenant of
rnO Political Rights, \:'i -.' , ^L,r i rr:.l i :',']'. the power to address Congress [Art. Vll, Secs. 14-23]"
;ffi["#il'""ttnn 12i4).] ., of
, iiT':"r
,.., The inevitable question then arises: by enumerating certain powers of the
which refer to the issuance
Thus, the rulings in the cases af Kent and Haig,
President did the framers of the Constitution intend that the President shall exercise
effectively--u*t'"ltiig the right to travel 'are not
oassports for the purpose ,of relate to a those specifrc powers and no other? Are these enumerated powers the breadth and
and are only tangentially material insofar as they
determinative of this case of a protected right' The issue scope of "executive power"? Petitioners advance the view that the President's powers
the exercise
conflict between **".riiu" ".tion
un"d
are lirnited to those specifically enumerated in the 1987 Constitution. Thus, they assert:
without precedent in Philippine' and even in American
before the Court is nou"l 'nJ "The President has enumerated powers, and what is not enumerated is impliedly denied
jurisPrudence -..- ^i...1
'
'r' - '
' r' ta her. lnclusio unius est exclusio alterius." [Memorandum for Petitloners, p. 4; Rollo p,
court of the well-debated issue of whether or not
, !- -
consequently, resolution by the 233.1 This argument brings tn mind the institution of the U. S. Presidency after which
t" travel tn tlre absence of legislation to that effect "
there can be limirations;;;- ftili will have to be awaited ' .' 1""" ' . ' ours is legally patterned.
is rendered ,nn*r"rruryli;';;il;fu; cait to1" its resolution ,- '
Corwin, in his monumental volume on the President of lhe United States grappled
Havingclarifledthesubstanceofthelegalissue,weflnclnowaneedtoexplain:...' with the same problem. He said:
o*,- resoluiion of the issue will involve a two-tiered
rhe methodoloEy ror its'ie!iirii"". has thepower under the Artlcle ll is the most loosely drawn chapter 0f the Constitution. To those
-rl"1''oqn-og1en'
aoproach, We-sjp]]-!il,i tes"1t* ."4fte*er-U nqt 'the-PlesidPLtt
irra we srrJti who think that a constitulion ought to settle everything beforehand it should be a
constjtution,'ro lar--tle frCqs;Jii;in""i'$i*niiUl-
Ietermine,,purslant to'he.i6ar$_;;;;;!h". ili unu-er ifii'co1;tituiiAriin
or with
Article
gravq abuse of
nightmare; by the same token, to those who think that conslitution rnakers ought
to leave considerable leeway for the future play of political forces, it should be a
Presidgqt-actqd-a]blilarily
Vtll, SeAXtg[ r. wnelirei or-ri'!t1he vision realized.
of' lurisOiction when she determined that the
iliscrellon am-qun-tlrlg i; Utflia-t4s threat to national interest and
Philippine$ poses a seii*ub We encounter this characteristic of ,Article ll in its opening words: "The
ieturn of the Marcoses io the
return executive power shall be vested in a President of the United States of America.' "
welfare and decided to bar their
.

.lThe President: Office and Power$, 7787-7957,pp 3-Al

Executive Power
rL^ 1 or7 ..nn.rinnion has fullv resiored the separation of poweG of the
three Reviewing hou/ the powers of the U S' PreBidenl were €xercised bv lhe d ifferenl
- l',i-lilj -i ""*--"m ro iecal the words of Jusllce Laurel in ArgrlE ,r persons who held ihe otrrce from Washinslon to the early 1900's, and the swinq from

?ifi:qi:KiTif#fl,f:l']:','i,!tl:Hi#Jl#;}"ii{1it1"":ffi lr"';:"#ffi.liffl*:ill"*ill"r,lt$:'""r:';r';ff:r[i:1irrl1"'^;
',.,":{i: {"lt(tJl.;i:iili::,",X"'"""Tl|;f td" U$":"if'fi: ?11X",,""T'T;"ii
supreme
rhisvi€w is sha,ed bysch,esinse, who $,ore,n zielrypenatprcsdehcy
Lll:_ l:^iii; j'i,'i 1s';.
.ttii,"
ii ira"t"t po*"'
"hall
be vested in one For the American P6id&cy was a peclliarly peBonal instirution. rt

!1,0,,r,:!i"*smxfj"**"f":":lt$*:lf*ll5,lik:r;i,:[x"
"na
fJli:if;'#,*";i""'fl3""'*ffixi1'*T'*#.','#"fl*',"ffit.;":1

turliih[r;
means a oran! of all l€gtsratNe power, ano i grant of rhe judicial Power mea1s- cast the whhe Hous6 8nd pe ad€d the sliB govemment' The exeMive
"^-d
ilfl"#'ffi1]jfir"s:*]ffi1i"rfi:*ii{"g,s;{;.Tfr#:,rfri
ll,{irfl{iil,,}:*:t#i+"l:rffil#"
 way each President understood it as his personal obligation to inform and involve construe the powers of a branch of government to embrace only what are specifrcally
thecongress, to earn and hold the confidence of the electorate and to render an mentioned in the Constitution:
accounting to the nation and posterity determined whether he strengthened or The great ordinances of the Constitution do not establish and divide ftelds
wea kened the constituti ona I order. lLl 21 2-71 3 -l Even the more specifrc of them are lound to terminale in a
of black and white.
we do not say that the presirlency is what Mrs. Aquirro say$ it is or what she penurnbra shading qradually from one extreme to the other. . .

does but, rather, that the consideration of tradition and the development of presidential xxx xxx xxx
power under lhe different constitutions are essential for a complete understanding of
the extent of and limitations to the President's powers under the 1987 Constitution. that however we may disguise
It does not seem to need argumentto show
The 1935 Constitution created a strong President with explicltly broader powers than it by veiling words we clo not and cannot carry out the distinction between
the u.s. President" The 1973 Constitution attempted to modify the system of legislative and executive action with mathematical precision and divide the
governmenl into the parliamentary type, with the President as a mere figurehead, but branches into watertight compadments, were it ever so desirableto do so, which I

ihrough numerous amendments, the President became even more poWerfui, to the am far f rom believing that it is, or that the Constitution requires.[At 21 0-21 1.]
point that he was also the de facto Legislature. The 1987 Constitution, however,
'brought The Power lnvolved
back the presidential system of government and restored the separation of
legislative, executive and judiclal powers by their actual distribulion arnong three The constitution declares among the guiding principles that [t]he prirne duty of
distinct branches of government with provision for checks and balances. the Government is to serve and proteet the people" and ihat "[t]he maintenance of
peace and order, the protection of life, liberty, and property, and the promotion of the
It would not be accurate, however, t0 state that "executive power" is the power t0 general welfare are es$ential for the enjoyment by all the people of the blessings of
enforce the laws, for the President is head of state a$ well as head of government and clemocracy."[Art. ll, Secs.4 and 5"]
whatever powers inhere in such position$ pertain to the offtce unless the Constitution
itself withirolcJs it. Furthermore, the Constitution itself provides tlrat the execution of the Admittedly, $ervice and protection of the people, the maintenance of peace and
laws is only one of the powers of the President. lt also grants the President other order, the Brotection of life, liberty and property, and the prnmotion of the general
powers thai do not involve the execution of any provision of law, e.9., his power over the welfare are essentially ideals to guide governmental action. But such does not mean
country's foreiEn relations. that they are empty words. Thus, in the exercise of presidenlial functions, in drawing a
plan of government, and in directino implementing action for these plans, or from
on these premises, we hold the view that although the 1987 Constitulion another point of view, in making any decision a$ President of the Republic, the
imposes limitations on the exercise ol specific powers of the President, il maintains President has 1o consider these principles, among other things, and adhere to them.
intact what is traditionally considered as within the scope of "executive povrer."
Corollarily, the powers of the Presid€nt cannot be said to be limited only to the specific Faced with the problem of whether or not the time is right to allow the lVlarcoses .t.
powers enumerated in the Constilution. ln other words, executive power is more thant t0 return to the Philippines, the President is, under the Constitution, constrained to
the sum of specific powers so enumerated' consider these basic principles in arriving at a decigiqn. More than that, having sworn 10
defend and uphold the 0onstitution, the President has the obligation under the
It has been advanced that whatever power inherent in the government that i$ Constitution to protecl the people, promote their welfare and advance the national
l1
neither legislative nor judicial has to be executive. Thus, in the landmark decision of interest. lt must be borne in mind that the Constitution, aside from being an allocation
Springeri. Government of the Phitippine lslands,277 U.S.189 (1 928), on the issue of of power is also a social contract whereby the people have surrendered their sovereign
who between the Governor-General of the Phllippines and the Legislature may vote the
I

powers to the State for the common qood. Hence, lest the offtcers Of the Government ',' ,)
shares of stock held by the Government to elect directors in the National Coal exercising the powers delegated by the people forget and the servants of the people
company and the Philippine National Bank, the u.s. supreme court, in upholding the become rulers, the Constitution reminds everyone that "ls]overeignty resides in the ..,"i

power of the Governor-General to do so, said: people and all governmenl authority emanates from them."[Art. ll, Sec. 1.]
. . . Here the members of the legislature who constitute a majority of the The resolution of the problem is made diftrcult because the persons who seek t0
"board" and "committee" respectively, are not charged with the performance of return to the country are the deposed dictator and his family at whose door the travails
any legislative functions or with the doing of anything which is in aid of of the country are laid and from whom billions of dollars believed to be ili-gotterr wealth
performance of any such funclions by the legislature. Putting aside for the are sought to be recovered. The constitutional guaranlees they invoke are neither
moment the question whether the duties devolved upon these members are absolute nor inflexible. For the exercise of even the preferred freedoms of speech and
vesled by the organic Act in the Governor-General, it is clear that they are not of expression, although couched in absolute terms, admits of limits and mu$t be
legislative in character, and still more clear that they are not ludicial. The fact that
adjusted to the requirements of equally imporlant public interests IZaldivar v.
tttey ao not fal! within the authority af either of these two constitutes logical
Sandiganbayan, G.R" Nos. 79690-707,0ctober 7, 1 9881.
ground for concludlng that they do fall within that of the remaining one among
-*lri"h
th" po*rrt of government are divicled . . .lAlZl}-213;emphasis supplied l To the President, the probiem is one of balancing the general welfare and the
cornmon good against the exercise of rights of certain individuals. The power involved
we are not unmindful of Justice Holmes' strong dissent. But ln his enduring is the President's residual power to protect the generai welfare of the people. lt is
words of dissent we find reinforcement for the view that it would indeed be a folly to
(D tclriologiel A:ia. lr. d 201!
(D lechnolrqier 45id, lnc. ao 21119
 founded on the duty of the President, as steward of the people. To paraphrase con$titutes a political question which is beyond the jurisdiction of the Court to decide.
Theodore Roosevelt, it is not only the power of the President but also his duty to do The present Constitution limits resort to the political question doctrine and
anything not forbidden by the Constitution or the laws that the needs of the natlon broadens the scope of judicial inquiry into areas which the Court, under previous
demand [See Corwin, supra, al 153]. lt is a power borne by the President's duty to constitutions, would have normally left to the political departments to decide. But
preserve and defend the Constitution. lt also may be viewed as a power implicit in the nonetheless there remain issues beyond the Court's jurisdiction the determination of
President's duty to take care that the laws are faithfully executed Isee Hyman, Ihe which is exclusively for the Presldent, for Congress or for the people themselves
American President, where the authcr acivances the view that an allowance of through a plebiscite or referendum. We cannot, for example, question the President's
discretionary power is unavoidable in any government and is best lodged in the recognition nf a foreign government, no matter how premature or improvident such
President]. action may appear. We cannot set aside a presidential pardon though it may appear to
More particularly, this case calls for the exercise of the President's powers as us that the benefrciary is totally undeserving of the grant. Nor can we amend the
protector of the peace. lRossiter, The American Presidencfi. The power of the Constitution under the guise of resolving a dispute brought before us because the
President to keep the peace is not limited merely to exercising the commander-in-chief power is reserved to the people.
powers in times of emergency or to leading the State against external and internal There is nothing in the case before us that precludes our determination thereof
threats to its existence. The President is not only clothed with extraordinary powers in on the political question doctrine. The deliberations of the Constitutional Commission
times of emergency, but is also tasked with attending t0 the day-to-day protrlems of cited by petitioners show that the framers intended to widen the scope of judicial
maintaining peace and order and ensuring domestic tranquillity in times when no review but they did not intend courts of justice to settle all actual controversies before
foreign foe appears on the horizon. Wide discrelion, within the bounds of law, in them. When political questions are involved, the Constitution limits the determination 1o
fulfilling presidential duties in times of peace is not in any way diminished by the whether or not there has been a grave abuse of discretion amounting to lack or excess
relative want of an emergency specified in the commarrder-in-chief provision. For in of jurisdiction on the part of the offrcial who$e action is being questioned. lf grave
making the President comrnandel-in-chief the enumeration of powers that foilow abuse is not established, the Ccurt will not substitute its judgment for that of the
cannot t e said to exclude the President's exercising as Commander-in-Chief powers official concerned and decide a matter which by its nature or by law is for the latter
short of the calling of the armed forces, or suspending the privilege of the writ of alone tcl decide. ln this light, it would appear clear that the second paragraph of Article
habeas corpus or declaring martial law, in order to keep the peace, and maintain pubiic Vlll, Section 1 of the Constitution, defrning 'ludicial power," which speciftcally
order and security. empowers the courts to determine whether or not there has been a grave abuse of
That the President has the power under the Constitution to bar thg Marcoses. discretion on the part of any branch or inslrumentality of the government, incorporates
from returning has been recognized by members of the Legislature, and isjmanifestedi in the fundamental law the ruling in Lansang u" Garcia [G.R. No. L-33964, December 11,
proposed in th@nd
the Resolution pfopo$ed
by the,.Resolution signed b[l 03=of its
the-Llouge of Replgggl]gltyeg-and signed 1971,42 SCRA 4481 that:
memb&s-groinri'fhe
membeis-srgiqtthe
membriis-sr,gi(i Presi(lent to allow Mr. Marcos Io
President return Io
to relurn to lne
the Fnlllpplnes
Phili "as
as a
Article Vll of the [1S35] Constitution vests in the Executlve tlre power to
genuine unselfish gesture for true national reconcilialion and as irrevocab le proof of our suspend the privilege of the writ of habeas corpus under specifted condilions.
collective adherence uncompromising respect far human right$ under the
t0 Pursuant lo the principle of separation of powers underlying our sy$tem of
Constitution and our laws." [House Resolution No. 1342, Rollo, p.321.] The Resolution government, the ExecLrtive is supreme within his own sphere. However, the
does not question the President's power to bar the Marcoses from returning to the separation of powers, under the Constitution, is no"t ab$olute. What is more, it
Philippines, rather, it appeals to the President'$ $ense of compassion to allow a man to goes hand in hand with the system of checks and balances, under which the
come home to die in his country. Execulive is supreme, as regarcls the suspension of the privilege, but only if and
when he acts within the sphere alloted to hinr by the Basic Law, and the authority
What we are saying in effect is that the reque$t or demand of the Marcoses to be
to determine whether or not he has so acted is vested in the Judicial Depanment,
allowed to return to the Philippines cannot be considered in the light solely of the
which, in this respect, is, in turn, constitutionally supreme.
constitutional provisions guaranteeing liberty of abode and the right to travel, subjeet
to certain exceptions, or of case iaw which clearly never contemplated situations even ln the exercise of such aulhority, the function of the Court is merely to
remotely similar to the present one. lt mu$t be treated as a rnatter that is appropriately check * -
not to supplant the Executive, or to ascefiain rnerely whether he has
addressed to those residual unstated powers of the President which are implicit in and gone beyond the constitutional limits of his jurisdiction, not to exercise the power
correlative to the paramount duty residing in that offrce to safeguard and protect vested in him or to determine the wisdom of his act .. [At 479-480.].
general welfare. ln that context, such request or demand should submit to the exercise
Accordingly, the question for the Court to determine is whether or not there exist
of a broader discretion on the part of the Presideni to determine whether it must be
granted or denied. factual bases for the President to conclude that it wa$ in the national interest to bar the
return of the Marcoses to the Phllippines. lf such postulates do exist, it cannot be said
The Extent of Review that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in
Under the Constitution, judicial power includes the duty to determine whether or decidlng to bar their return.
not there has been a grave abuse of discretion amounting to lack or excess of We frnd that from the pleadings filed by the parties, from their oral arguments,
jurisdiction on the part nf any branch or in$trumentality of the Government." [Art. Vlll, and the facts revealed during the briefing in chambers by the Chief of Staff of the
Sec. 1.] Given this wording, we cannot agree with the Solicitor General that the issue lD TL. rn .e ei Ar ,. lnc 6 2019
aD l€.hilain0b5 Arln. lnc q :019 .ia:i;rnti re.Lonr
 Security Adviser, wherein petitioners SO ORDERED,
Armed Forces of the Philippines and the National
and respondents were represented, there exist factual bases for the President's Narvasa, Melencio-Herrera, Gancayco, Grifio-Aquino, Medialdea and Regalado,
decision. JJ., concur.
pretend that the country
The court cannot close its eyes to present realities and Feliciano, J, is on leave.
communist insurgency, a separatist
is not beiieged from within by a well-organized
movementinMindanao,rightistconspiraciestograbpower'urbanterrorism'the to mention Separate Opinions
*itH impunity of military men, police_officers and civilian officials,
*rri.i and their followers
onf, , f**. The documented hisiory of the efforts of the Marcoses
narrated in this ponencra bolsters the conclusion
to destabilize the country, as earlier the
FERNAN, C.J., concurring'
exacerbate and intensify
that the return of the Mircoses at thls time would only
against the State and instigate more chaos' "The threats to national security and public order are real - the mounting
,iot"n"" directed
Communist insurgency, a simmering separatist rnovement, a restive studentry,
Asdivergentanddiscordantforces,lheenemiesofthestatemaybecontained,
posed widespread labor disputes, militant farmer groups. . . . Each of these threats is an
ff,e military eslablishmenihas given assurances that it could handle the threats
explosive ingredient in a steaming cauldron which could blow up if not handled
bv oarticuiar qroups. But it is th6 catatytic effect ol the return of the Marcoses that may
properly."
piJ* i" n. *ri" pioveruiat final straw that would break the camel's back.
These are not my words, They belong to my distinguished colleague in the Court,
Withthesebeforeher,thePresidentcannotbesaidtohaveactedarbitrarilyand Mr. Justice Hugo E, Gutierez, Jr. But they express eloquently the basis of my full
Marcose$ poses
and whimsically in determining.lhat the return of the
a
capriclousty concurrence to the exhaustive and \r/ell-written ponencia of Mme. Justice lrene R.
;;;i;r* threat to the nationai interest and wetfare and in prohibiting their return. Cortes.
It will not do to argue that if the return of ihe Marcoses to the Philippines wiil Presidential powers and plerogatives are not ftxed but fluctuate. They are not
"violence
in. escalation of against the State, lhat would be the time for the
derived solely from a particular conslitutional clause or article or from an express
"rr.*
pi-r,O""it" step in and exercise ttie cornrnander-tn-chief powers granted her by the statutory grant. Their limits are likely to depend on lhe imperatives of events and
The state, acting through the
constitution to suppress or $tamp out such violence. contemporary imponderables rather than on abstract theories of law. History and tirne-
precluded from taking pre-emptive action against threats 1o its
Government, ls not honored principles of constitutional law have conceded t0 the Executive Branch certain
perceived as apt to become serious and
.*iri"r.* if,'though still nascent, they are
of the duty of governrnent The powers in times of crisis or grave and imperative national emergency. Many lerms are
iii*"i. Fr"t!"tion- of the people is ihe essence
* is an.obligation in applied to these power$: 'residual," "inherent," "moral," "inrplied," "aggregate,"
*
pi"*rrution of the State the fruition of the people's sovereignty
"emergency,'' Whatever they may be called, the fact is that these powers exist, as they
defend the Constilution and to
[f.," Ngfr;rt order" The President, sworn to preserve and must if ihe governance function of the Executive Branch is to be carried out effectively
shirk from that responsibility.
see thi f aithful execution the laws, cannot and efficiently. lt is in this context that the power of the President to allow or disallow
is only now beginning to
We cannot also lose sight of lhe fact that the country +ha tr/rraacoo +^ ratrrrn +n +ha Dhilinninoc chnrrld ho vioraror{ Rrr roacnn nf ite imhe.t An
about by the plunder of the-economy attributed to national peace and ordel in these admittedly critical times, said question cannot be
fecover from the hardships biought
close asiociates and relatives, many of whom are still here in withdrawn from the c0mpelence of the Executive Branch to decide.
tie Marcoses and their
the Government has barely
in" pniiippin"s in a position to destabilize the country, while And indeed, the return of the deposed President, his wife and children cannot but
scratchedthesurface,Sotospeak,initseffortstorecQvertheenormouswealth
Then, We cannot ignore the pose a clear and present danger to public order and safety. One needs only to recall the
jurisdictions
uiuif,*O away by the Marcoses in foreign series of destabilizing actions attempted by the so-called Marcos loyalists as well as
increasing burden imposed on the economy by the excessive
foreign
the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The
"".ti"*ff,
["ri"*lrfj during thiN/ircos regime, which stifles and stagnates development and is
most publicized of these offensives is the Manila Hotel incident which occurred barely
the root causes of wideJpread poverty and all its attendant ills The resulting
one of frve (5) months after the People's Power Revolutlon. Around 10,000 Marcos
pr..rri"rt state of ou|' is of common knowledge and is easily within the
".ono,y supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt.
ambit of judicial notice. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of
caused by the return of the
The president has determined that the destabilization Arturo Tolentino as acting president of the Philippines. The public disorder and peril to
the pasl few years and lead to
Marcoses would wipe iway the gains achieved during life and limb of the citizens engendered by this event subsided only upon the eventual
and common knowledge of
total economic collapse^ civen w"hat is within our individual surrender of the loyalist soldiers to the authorities.
thestateoftheeconomy,wecannotarguewiththatdetermination' Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp
WHEREFoRE,anditbeingourwell.consideredopinionthatthePresidentdidnot Aguinaldo incidents. Military rebels waged simultaneous offensives in different parts of
that the return of folmer
act arbitrarily or with giave abule of discretion in determining Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7
pi.sJ.rt f,71lr"o. ani his family at the pre$ent time and under present circumstance$ and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while
in prohibiting their return to
po*"r u serious threat 1o national interest and welfare and another group struck at $angley Point in Cavite and held the 1Sth Air Force Strike wing
it'te pttitippines, the instant petition is hereby DISMISSED'
'_O
Tr.l lo r! e. A. d nr ?rric
CDT4cir.hgre!A1la, ni 4 ?019
commander and his deputy hostage. Troops on board several vehicles attempted to country. Verily in the balancing of interests, the scales tilt In favor of presidential
enter Gate 1 of Camp Aguinaldo even as another batch of 200 soldiers encamped at prerogative, which we do not find to have been gravely abused or arhitrarily exercised,
Horseshoe Village. to ban the Marcoses from returning 1o the Philippines.
Another destabilization plot was sarried oul in April, 1987 by enlisted personnel GUTIERREZ, )R., J., dissenting:
who forced their way through Gate 1 of Fort Bonifacio. They stormed into the army
stockade but having failed to convince their incarcerated members to unite in their 'The Constitution , . , is a law for rulers and people, equally in war and in peace,
cause, had to give up nine (9) hours later. and covers with the shield of its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences was ever invented
And who can forget the Augu$t 28,1987 coup attempt which almosl toppled the
by the wit of man than that any of its provisions can be suspended during any of the
Aquino Governmenl? Launched not by Marcos loyalists, but by another ultra-rightist great exigencies of government." (Ex Parte Milligan,4 Wall. 2; 1B L. Ed. 281 [1866]).
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 Since our days as law students, we have proclaimed the stirring words of 6r
death of many civilians. Parte Milligan as self-evident truth. But faced with a hard and delicate case, we now
Members of the so-called Black Forest Commando were able to cart away high- hesitate to give substance to their meaning. The Gourt has permitted a basic freedom
powered firearms and ammunition from the Gamp Crame Armory during a raid enshrined in the Bill of Rights to be taken away by Government.
conducted in June 1988. Most of the group members were, however, captured in There is only one Bill of Rights with lhe same interpretation of liberty and the
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan same guarantee of freedom for both unloved and despised persons on one hand and
Balik $aya which sought the return of Marcos to the country. the rest who are not so stigmatized on the other.
A more recent threat to public order, peace and safety was the attempt of a
I am, therefore, disturbed by the rnajority ruling which declares that it should not
group named CEDECOR tomobilize civilians from nearby provinces to act as be a precedent. We are interpreting the Constitution for only one person and
blockading forces at differenl Metro Manila area$ for the projecled link-up of Marsos constituting him into a class by himself. The Constitution is a law for all classes of men
rnilitary loyalisl troops with the group of Honasan. The pseudo "people power" at all times. To have a person as one clas$ by himself smack$ of unequal protection of
movement was neutralized thru checkpoints set up by the authorities along major road the laws.
arteries where the members were arrested or forced to turn back.
With all due respect for the majority in the Court, I believe that the issue before us
While not all of these disruptive incidents may be traced directly to the Marcoses, is one of rights and not of power. Mr. Marcos is insensale and would not live i{
their occurrenee militates heavily against the wisdom of allowing the Marcose$' return. separated from the machines which have taken over the functions of his kidneys and
Not only will the Marcoses' presence embolden their followers toward similar actions, other organs, To treat him at this point as one with full panoply of power against whom
but any $uch action would be seized upon as an opportunity by other enemies of the the forces of Government should be marshalled is totally unrealistic. The Government
State, such as the Communist Party of the Philippines and the NP,As, the Muslim has the power to arrest and punish him. But does it have the power to deny him his right
secessionists and extreme righlist$ of the RAM, to wage an offensive against the to come home and die among familiar surroundings?
government. Certainly, lhe state through its executive branch has the power, nay, the
Hence, this dissent,
responslbility and obligation, to prevent a grave and serious threat to its safety from
arising. The Billof Rights provides:
Apparently lost amidst the debate on whether or not to allow the Marcoses to "Sec. 6. The libefi of abode and of changing the same within the limits
return lo the Philippines ls one factor, which albeit, at first blush appears to be extra prescribed by law shall not be impaired except upan lawful order of the court
legal, conslitutes a valid juslifrcation for disallowing the requested return. I refer to the Nelther shall the right to travel be impaired except in the interest of national
public pulse, lt must be remembered that the ouster of the Marcoses from the security, public safety, or public health, as may be provided by law;' (Emphasis
Philippines came about as an unexpected, but certainly welcomed, resull of the supplied, $ection 6, Art. lll, Constitution)
unpiecedented "people's power" revolution. Millions of our people braved military tanks
To have the petition dismissed, the Solicitor General repeats a ritual invocation of
and firepower, kept vigil, prayed, and in countle$s manner and ways contributed time,
effort and money to put an end to an evidently untenable claim to power of a dictator. national security and public safely which is hauntingly familiar because it was pleaded
The removal of the Marcoses from the Philippines wa$ a moral victory for the Filipino so often by petitioner Ferdinand E. Marcos to justify his acts under martial law, There is,
people; and the installation of the present administration, a realization of and obedience however. no showing of the existence of a law prescribing the limits of the power to
to the people's will. 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
Failing in legal arguments for the allowance of the Marcoses' return, appeal is military was able to readily quell, the respondent$ have not pointed to any grave
being made to sympathy, compassion and even Filipino tradition, The political and exigency which permits the use of untrammeled Governmental power in this case and
economic gains we have achieved during the past three years are however too valuable the indefinite suspension of the constitutional right to travel.
and precious to gambte away on purely compassionate consideralions. Neither could
public peace, order and safety be sacrificed for an individual's wish to die in his own basic argument is that the issue before us is a political
.,,.",",",",:::":espondents'
 everything which to them represents evil. The entire Government is bound by the rule of
question beyond our jurisdiction to consider' They contend that the de.cision to ban
law.
former Presldent Marcos, and his family on qrounds of national security and
public
in the President alone. The determination should The respondents have not pointed to any provision of the Constitution which
,rt"ty ir vested by tlre Constitution
nut-Uu qr**tioned before this Court" The President's frnding of danqer to the
nation commits or vests the determination of the question raised to us solely in the President.
should be conclusive on the Court,
The aulhority implied in Section 6 of the Bill of Rights itself does not exisl
What is a Political que$tion? because no law has been enacted specifying the circumstances when the right may be
946i, the 0ourt stated: impaired in the interest of national security or public safety. The power is in Congress,
ln Vera v. Avelino (7V Phn. 192,223 [1
not the Executive.
The closest resort to a textually demonstrable c0nstitutional commitment of
''tt is a well-settled doctrine ,n., o:ilJilll'1"'",.''are not within the
power may be found in the commander-in-chief clause which allows the President to
province of the iudiciary, except 10 the extent that power to deal with such
call out the armed forces in case of lawless violence, invasion or rebellion and to
tluestions has been confened on the courts by express constitutional or suspend the privilege of the writ of habeas corpus or proclairn martial law in the event
political
statutory provisions. lt is not s0 easy, however, to define the phrase
of invasion or rebellion, when the public safety requires it.
question, nor to determine what matters fali within its scope. lt is frequently
judicial
used to designate all questiorrs that lie outside the scope of the There is, however, no showing, not even a claim that the followers of former
powetMoreproperly,however,itmeansthos€questionswhlch,underthe President Marcos are engaging in rebellion or that he is in a position to lead them.
in
constitution, are to be decided by the people in tlreir sovereign capacity, or Neither is it claimed thal there is a need to suspend the privllege of the writ of habeas
iegard to which full discretionary authority has been delegated to the corpus or praclaim martial law because of the arrival of Mr. Marcos and his family. To
legislative or executive branch of the government'' be sure, there may be disturbances but not of a magnitude as would compel this Court
we defrned a political question in Tafiada v. cuenco (1 03 Phil. 1051, 1066 10 resort to a doctrine of non-justiceability and to ignore a plea for the enforcement of
[1957[), as follows: an expre$s Bill of Rights guarantee.
"'ln short, the term 'political question' connotes, in legal parlance' wlrat it The respondents themselves are hardpressed to state who or what constitutes a
means in ordinary parlance, namely, a quest;on of policy' ln olher words, in the Marcos "ioyalist."The constant lnsinuations that the "loyalist"group is heavily funded by
language of corpus Juris secundum (supra), it refers to those questions which, Mr. Marcos and his cronies and that the "loyalists" engaging in rallies and
unier the conslitution, are to be decided by the people in their sovereign capacity, demonstrations have to be paid indlvidual allowances to do so conslitute the strongest
or in regard to which fuil discretionary authority has been delegated to the indication that the hard core "loyalists" who would follow Marcos right or wrong are $o
Legislature or executive branch of the Governrnent. lt is concerned with
issues few in number that they could not possibly destabilize the government, rnuch less
defiendent upon the urisdom, not legality, of a particular mea$ure ' mount a serious attempt to overthrow it.

The most often quoted defrnition of political question was made by Justice Not every person who would allow Mr. Marcos to come home can be tagged a
Court in "loyalist." lt is in the best of Filipino cusloms and traditions to allow a dying person to
William J. Brennan, Jr., who penned the decision of the United States Supreme
Baker v. carr (369 US 186, S2, S. Cr. 691, L. Ed. 2d. 663 [1962]). The ingredienls of a return to his home and breath his last in his native surroundings. Out of the '1 03
political queslion as formulated in Baker v. Carr are: Congressmen who passed the [-louse resolution urging permission for his return, there
are those who dislike Mr. Marcos intensely or who suffered under his regime. There are
,,ltisapparentthatseveralforrnulationswhichvaryslightlyaccordingio also many Filipinos who believe that in the spirit of national unity and reconciliation Mr,
the seflings in which the questiorrs arise may describe a political
question, which
Marcos and his family should be permitted to return to the Philippines and that $uch a
identifres it as essentially a function of the separation of powers. Prorrlinent on
return would deprive his fanatic followers of any further reason lo engage in rallies and
the surface of any case held to involve a political question is found a textually demonstrations,
polilical
demonstrable constitutional commilment of the issue to a coordinate
or a lack of judicially discoverable and rnanageable standards for The Court, however, should view the return of Mr. Marcos and his family solely in
Jepartment;
resolving it; or the impossibility of deciding without an initial policy determination the light of the constitutional guarantee of liberty of abode and the citizens right to
of a kind clearly for non-judicial discretion; or the impossibility of a court's lravel as against the respondents'contention that national securlty and public safety
undertaking independent resolution without expreesing lack of the respect due would be endangered by a grant of the petition.
coordinate- branches of government, or an unusual need for unquestioning Apart from the absence of any lext in the Constitution committing the issue
adherence to a political decision already made; or potentiality of embarrassment exclusively tcl the President, there is likewise no dearth of decisional data, no
from multif arious pronouncements by various departments on one question
"
unmanageable starrdards which stand in the way of a jud icial determination.
For a political question to exist, there must be in the constltution a
power ve$ted
Section 6 of the Bill of Rights states categorically that the liberty of abode and of
exclusively in the President or congress, the exercise of which the court
should not
changing the same within the limits prescribed by law may be lmpaired only upon a
examine or prohibit. A claim of plenary or inherent power against a civil right which
lawful order of a court. Not by an executive offt cer. Not even by the Pres ident. Sectio n 6
claim is not found in a specifrc provision is dangerous. Neither should we validate a further provides thal the right to travel, and this obviously includes the right to lravel o&l
ioulng .o**ission allowing public officials to strike where they please and to or":::.q,:"..,, r:0 lechnohg e! tila, ir.. il 2019
 question doctrine allowed the Court during the Marcos year$ to fall back on prudence,
ofolbackinfothePhilippines,cannotbeimpairedexceptintheinterestofnational
provided bv law' institutional diffrculties, complexity of issues, momentousness of consequences or a
;;tiil;ilil safety, orpublic health' as may be fear that it wa$ exlravagantly extending judicial power in the cases where it refused to
citizen's right to move from one.part of the examine and strike down an exercise of authoritarian power, Parenthetically, at least
There is no law setting the limits on a
or from if;e Rtritippines to a fo.reign country or from a.foreign country two of the respondents and their counsel w€re among the most vigorous critics of Mr.
"orntrr'iJ'unotner
i;ih';'piirlppi."r. -
tr,. soliciior General immisration, health,
rh" l;;'"it"l'Lv Marcos (the main petitioner) and his use of the political question doctrine, The
ouarantine, passports, motor venicte'
destierro' probetion' .and naroll . - are all Constitution was accordingly amended. We are now precluded by its mandate frorn
ilffi;ffit il;;I"; u, in"-irt*n of Mr. Marcos and family is concerned. There is refusing to invalidate a political use of power through a convenient resort to the
political question doctrine. We are compelled to decide what would have been non-
absolutelynoshowingno*,nyofthesestatutesandregulationscouldserveasabasis
justiceable under our decisions interpreting earlier fundarnental charters.
to bar their coming home'
ThereisalsonodisrespectforaPresidentialdeterminationifWegrantthe This is not to state that there ean be no more political questions which we may
Co,nstitution, in the preservation and defense refuse to resolve. There are still some political questions which only the President,
Detition. we would simpri'u'e a-Jprvip 1" sworn to
i. eli.inrlit, th"e president and congress included, are Congress, or a plebiscite may decide. Definitely, the issue before us is not one of them"
[i'*i"r,'rir pt"Jio""t herself has stated that the eourt has the last
;;*il;;. "ir.
d,gn,f,"untry,'ih* by our The Constitution requires the Court "to determine whether or not there has been
word when to-'Jonuiiirtional liberties and that she would abide
it comes a grave abuse of discretion amounting to lack or excos$ of jurisdiction."
decision.
has not been very receptive to the How do we determine a grave abuse of discretion?
As early as 1gg3, it wa$ noted that this court
rawyers. (see Morales, Jr u The tested procedure is to require the parties to present evidence. Unfortunately,
invocation of the potiticai;;il; d".trine by government
considerations of national securily do nol readily lend themselves to the presentation
iiiii irrite,121 scRA sae [r eBB]).
positions in the executive of proof before a court of justice. The vital information essential to an objective
Many of those now occupying the highest
this Court for using what they felt delermination is usually highly classifred and it cannot be rebutted by those who seek
departments, Congress, uni tf,ulraidlriy.criticizel or subservience. Every major to overthrow the government. As early as Earcelon v. Baker (5 Phi|.87,93 [190s]),the
was a doctrine ot "o**i.nr!, *rp*di*n.y,.utility
E. Marcos under his authoritarian regime -
Court was faced with a similar situation. lt posed a rhetorical question. lf after
lf,if"rS"i" ihe-acts of petitionu.F.tOinurd investigating conditions in the Archipelago or any part thereol the President ftnds that
the proclamation the ratifrcation.of a new constitution, the arrest and
ot rJrtiai law public safety requires the suspension of the privilege of lhe writ of habeas corpu$, can
,'enemies lilrr.'stii-i witnout charges belng frled.against them, the
detention of the judicial department inveotigate the same facts and declare that no such conditions
by the presldent of legislative powers, the trial
dissolution of congress lni'ir'" ***i.lre exist?
the seizure of some of the countrv's
of civilians for civit off*ns;;;; ririirrvliibu.als,
t'fil'S o'- closure of newspaper offtces' radio and ln the effort to follow the "grave abuse of discretion" formula in the second
biggest corporations,. if''* o1.
proposals to amend the.Constitution' paragraph of Section l,,Article Vlll of the Constitution, the courl granted the $olicitor
television stations oift"ilotrns of media' the
a political question' General's offer that the military give us a closed door factual briefrng with a lawyer for
etc. - was invariably ,;ilt
"no un inro.atton that the peiition involved
often invoked by then
political question doctrine so the petitioners and a lawyer for the respondents present.
It is indeed poetic justicl tirat the used against him and his family'
President Marcos to f'utiiy"f it;&; it no*.b"ing The results of the briefrng call to mind the concurrence of Justice Vicente Abad
is not alloiled to indulge in such a persiflage'
Unfortunately, tfre Couriltr6utJ not and Santos in Morales, Jr. v. Enrile,(121 SCRA 538, 592 [1983]);
We are bound bY the Constitution'
"How can this Court determine the factual basis in order that it can
Thedimviewofthedoctrine'sUsewassuchthatwhenthepresentConstitution ascertain whether or not the president acted arbitrarily in suspending the writ
power was added to the vesting in the
l-nrtir.
was drafted, a broad "iiudicialpower' when, in the truthful words of Montenegro, with its very limited machinery [it]
;rpt"*; Court and statutory courts of said cannot be in belter position lthan the Executive Branchl to ascertain or evaluate
the conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. lt
ThesecondparagraphofSectionl,ArticleVllloftheconstitutionprovides:
must rely on the Executive Branch which has the appropriate civil and military
''Judicialpowerincludesthedutyofthecourtsofjusticetosettleactual machinery for the facts. This was the method which had to be used in Lanoang,
controversies *f.,lrf, u*i.g.lly demandable and enforceable, and
i.r;fi;';ight; This Court relied heavily on classifred information supplied by the military,
been a grave abuse of discretion,amounting
to determine wn.tftui Jr ni,t there has Accordingly, an incongruous situation obtained. For this Couft, relied on the very
exces- ;ii;ili.il;
on it r purt oGny branch or instrumentality of the branch of the government whose act was in question to obtain the facts. And as
to lack or
Government'" ehould be expected the Executive Branch supplied infotmation to $uppon its
position and this Court was in no situation to disprove them. lt was a ease of the
Thisnewprovisionwasenactedtoprecludethis'courtfromusingihepoliticalquestion defendant judging the suit. After all is said and done, the attempt by this Coun to
doctrine aB a means to ,,oiJ f iuing
to make decisions simply -because they are too dEtermine whether or not the President acted arbitrarily in suspending the writ
displeasing ;;
controversial, iG piesioent or congress, inordinately unpopular, or was a useless and futile exerctse.
*ili"n ruy be ignored and not enforced' "There is still another reason why thi$ Courl should maintain a detached
Theframersoftheconstitutionbelievedthatthefreeuseofthepolitical
c0 TEchnohglae Asla, hc. o 2019
 quell it would be to catch and exile ils leaders, Mr. Marcos himself was forced to {lee
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
tfte country because of "peoples' power." Yet, there is no move to arrest and exile the
because of one reason or another. But when this court declares thal the leaders of student group$, teachers' organization$, peasant and labor federations,
suspension is not aftitrary (because it cannot do othenruise upon the facts
given transport workers, and government unions whose threatened mas$ actions would
to ii by the Executive Branch) it in effect participates in the decision-making definitely endanger national security and the $tability of government. We fail to see how
process. lt assumes a task which il is not equipped to handle; it lends its prestige Mr. Marcos could be a greater danger,
and credibility to an unpopular act." The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-
Ihe other method is to avail of judiciat notice. ln this particular case, judicial soldiers, the hard core loyalists, and other dissatisfred elements would suddenly unite
notice would be the only basis for determining the clear and present danger to national
to overthrow the Republii should a dying Marcos come home is too speculative and
securify and public safity. the majority of the Court has taken
judicial notice of the unsubstantial a ground for denying a constitutional right. lt is not shown how
iommrnist rebellion, the separatiit movement, the rightist conspiracies, and urban extremists from the right and the left who loathe each other could ftnd a ratlying point in
the eoming of Mr. Marcos.
terrorism. But is it fair to blame the present day Marcos for these incidents? All these
pioUt**. are totally unrelated to the Marcos of today and, in fact, are led by people The "confluence theory" of the Solicitor General or what the maiority calls
who have always opposed him. lf we use the problems of Government as excuses for "catalytic effectl' which alone sustains the claim of danger to national security is
denying a persons'iignt to come home, we will never run out of iustifying reason$. fraught with perilous lmplications. Any diffrcult problem or any trouble$ome person can
These problems or others llke them will always be with us' be substltuted for the Marcos threat as the catalysing factor. The alleged confluence of
NPAs, secessionists, radical elements, renegad€ soldiers, elc., would still be present.
signifrcantly, we do not have to look into the factual bases of the ban Mareos
policy in-order to'ascertain whether or not the respondents acte-d with grave abuse of Challenged by any critic or any $erious problem, the Government can state that the
dir"rltion. Nor are we forced to fall back upon judicial notieeol the implications of a situation threatens a confluence of rebel forces and proceed to ride roughshod over
civil liberties in the name of national security. Today, a passport is denied. Tomotrow, a
Marcos relurn to his home to buttress a conclusion.
new$paper may be elosed. Public assemblies may be prohibited. Human rights may be
ln the frrst place, there has never been a pronouncement bylhe President that a violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito
clear and present danger to national security and public safety will.aris-e if Mr. Marcos $alonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be
and his family are allowed to return to the Philippines, lt was only after the
pre$ent
public tomorrow's pariahs? I deeply regret that the court's decision to use the political
putition was frled that the atleged danger to national security and safety
question doctrine in a $ituation where it does not apply raises all kinds of disturbing
conveniently surfaced in the respondents' pleadings. .Secondly, President Aquino possibilities.
herself limiis the reason for the ban Marcos poticy to - (1 ) national welfare and intere$t
I must empha$ize that General Renato de Villa, the chief of staff of the Armed
anU iZ) the continuing need to pre$erve the gains achieved in terms of lecovery
and
73 of ground Forces, has personally assured the Court that a rebellion of the above combined group$
rtuUifity. (See page i respondent$' Commenl at page Rollo). Neither
will not succeed and that the military is on top of the situation. Where then is the clear
r.ii"Rur it" of national security and public safety' The President has been
"iititia
qrii"J as stating that the vast maiority of filipinos support her position. (The Journal, danger to national security? The Courl has taken judicial notice of something which
fiont page, Janriary 24, 1989) we cannot validate her stance simply because it is a even the military denies. There would be severe strains on rnilitary capabilities
prpufiit 5n". Suprehe Court decisions do not have to be popular as. long as they follow according to General de Villa. There would be set-backs in the expected eradication of
ihe Constitution and the law. The President's original position "that it is not in the the Communist threat. There would be other serious problems bul all can be

interest of the nation that Marcos be allowed to return at this time" has not changed. successfully contained by the military. I must stress that no reference was made to a
(Manila Times,frant page, February 7, 1989). On February 11, 1989, the.President is clear and piesent danger to national security as would allow an overriding of the Bill of
ieported to have statedlhat "considerations of the highest national good dictate that Rights.
years" in
*" pr***rr* the substantial economic and political gains of the.pasthisthree failing
The Solicltor General's argument that the fallure of Congress t0 enact a statute
iuitifying her frrm refusal to allow the relurn of Mr. Marcos despite health, defrning the parameters of the right to travel and to freely choose one's abode has
gtabe,front page, February 1 5, 1989). "lnterest of the nation," "national good," and constriined the President to fill in the vacuum, is too reminiscent of Amendment No. 6
iiaii
;preserving economii and political gains." cannot be equated with.national security or
of the martial law Constitution to warrant serious consideration. Amendment No. 6
dunf i" otUlt. They are too
generic and sweeping to serve as grounds for the denial of a allowed Mareos to issue decrees whenever the Balasang Pambansa failed or was
ionitltutionrt rigtrt. fne Sitt of Rights commands that the righl to travel may not be unable to act adequately on any matter for any reason that in his judgment required
i*piir"J except- on the stated giounds oI national security, public slfety, or pufllc immediate action. When the Bill of Rights provides that a right may not be impaired
heatth and with the added requiriment that such impairment must be "as provided by except in the interest of national security, public safety, or public health and further
law." The constitutional command cannot be negated by mere generalizations" requirus that a law must provide when such specifically defined interest$ are prejudiced
or require protection, the inaction of Congress does not give reason for the
There is an actual rebellion not by Marcos followers but by the New Peoples'
respondents to assume the groun ds for its impairment.
Army. Feeding as it does on injustice, ignorance, poverty, and other aspects at
underdevelopirent, the Communist rebellion is the clearest and most present danger to The fact that the Marcoses have been indicted before American federal courts
national securily and constitutional freedoms. Nobody has suggested that one way to does not obstruct us from ruling against an Ungonstitutional assertion of power hy
cDtchnologlesAsla, lnc. @ 2019
cDtchnologllBAsia, ihc, @ zo19
 Philippine officials. Let the United States apply its laws. We have to be true to our own. CRUZ, J., dlssenting:

Mr" Marcos may be too ill to withstand the riqors of a transpaciftc flighl. The It i$ my belief that the petitioner, as a citizen of the Philippines, is entitled to
agony of traveling while hooked up to machines which have taken over the functions of return to and live * and die * in his own country. I say this with a heavy heart but say it
his heart, lungs, and kidneys may hasten his death. The physical condition of Mr. nonetheless. That conviction is not diminished one whit simply because many believe
Marcos does not juslify our ignoring or refusing to act on his claim to a basic right Marcos to be beneath contempt and undeserving of the very liberties he flouted when
which is legally demandable and enforceable. For his own good, it might be preferable he was the absolute ruler of this land.
to stay where he is- Bui he invokes a constitutional right. We have no power to deny it to
him. The right of the United States government to detaln him is nol the question
The issuance of a passport may be discretionary but it should not be withheld if before us, nor can we resolve it. The question we must answer is whether or not,
to do so would run counter to a constitutional guarantee. Besides, the petitioners are assuming that Marcos is permitled to leave Hawaii (which may depend on lhe action
not asking for passports and nothing else. Any travel documents or any formal lifting of we take today), the respondents have acted with grave abuse of discretion in barring
the Marcos ban as would allow international airlines to sell them tickets would suffice. him from his own country.

With all due respect for the majority opinion, I disagree with its dictum on the My reluctant conclusion is that they have, absent the proof they said they were
right to travel. I do not think we should differentiate the right to relurn home from the prepared to offer, but could not, that the petitioner's return would prejudice the security
right to go abroad or to mgve around in the Philippines. lf at all, the right to come home of the state.
rl-'1'
must be more preferredthan any other aspect of the right to travel" lt was precisely the 'rlr(' I was the one who, in tlre open hearing held on June 27, "l 989, asked the Solicitor
banning by Mr. Marcos of the right to travel by Senalors Benigno Aquino, Jr., Jovito General if the government was prepared to prove the justifrcation for opposing the
Salonga, and scores of olher "undesirables" and "threats to national security" during herein petition, i.e., that it had not acted arbitrarily. He said it was, Accordingly, the
that unfortunate period which led the framers of our present Constitution not only to re- Court, appreciating the classifred nalure of the information expected, scheduled a
enact but to strengthen the declaration of this right. Media often asks, "what else is closed-door hearing on July 25, 1988. The Solicitor General and three representatives
new?" I submit that we now have a freedom loving and humane regime. I regret that the frorn the military appeared for the respondents, together with former Senator Arturo M.
Court's decision in this case sets back the gains that our country has achieved in terms Tolentino, representing the petitioners.
of human rights, especially human rights for those whom we do not like or those who
ln about two hours of brieflng, the government failed dismally to show that the
are against us.
return of Marcos dead or alive would pose a threat to the national security as it had
The respondent $ecretary of Foreign Affairs, Raul S. Manglapus has disclosed a alleged. The fears expressed by its representatives were based on mere conjectures of
list of former dictators who were barred by their successor$ from returning to their political and economic destabilization without any single piece of concrete evidence to
respective countries. There is no showing that the countries involved have constitutions back up their apprehensions.
which guarantee the liberty of abode and the freedom to travel and that despite such
Amazingly, howevel the majorily has come to the conclusion that there exist
constitutlonal protections, the courts have validated the "ban a return" policy. Neither is "faclual bases for the President's decision" to bar Marcos'$ return. That is not my
it shown that the successors of the listed dictators are as deeply committed 10 recollection of the impressions of the Court afler that hearing.
democratic principles and as observant of constitutional protections as President
Aquino. ln holding that the President of the Philippines has residual powers in addition to
the specific power$ granted by the Constitution, the Court is taking a great leap
It is indeed regrettable that some followers of the former President are backward and reinstating the discredited doctrine announced in Planas r. Gil (67 Phil.
conducting a campaign to sow discord and to divide the nation" Opposition to the
62). This doe$ not square with the annoLrnced policy of the Constitutional Commission,
government no matter how odious or disgusting is, however, insuffrcient ground to
which was precisely \a limit ralher than expand presidential powers, as a reaction to the
ignore a constitutional guarantee.
excesses of the past dictatorship.
During the protracted deliberations on this case, the question was asked - ls the
I can only repeat Ju$tice Black's wry observation in the Sleel Seizure Case (343
Government helpless to defend itself against a threat to national security? Does the
U.S. 579) that if it was true that the President had been granted the totality of executive
President have to suspend the privilege of the writ of habeas corpus or proclaim power, "it is d!fftcult to see why our forefathers b<lthered to add several specifrc items,
martial law? Can she not take less drastic measures?
including some trifling ones, . . . I cannot accept the view that this clause is a grant in
Of course, the Government can act. lt ean have Mr. Marcos arrested and tried in t. bulk of all conceivable executive power but regard it as an allocation to the presidential
court. The Government has more than ample powers under existing law to deal with a i'--:i;i ri
ri.ilL!, ' office of the generic powers thereafter stated""
person who transgresses the peace and imperils public safety. But the denial of travel
. ,. ':i
I have no illusion that the stand I am taking will be met with paeans of praise,
papers is not one of those powers because the Bill of Rights says so. There is no law ri i
.;r1'lilr,liri 11".l considering that Marcos is perhaps the most detested man in the entire history of our
prescribing exile in a foreign land as the penalty for hurting the Nation.
country. But we are not concerned here with popularity and personalities. As a judge, I
Considering all the foregoing, I vote to GRANT the petition. am not swayed by what Justice Cardozo called the "hooting throng" that may make us
Bidin, J., dlssents. see things through the prisms of prejudice. I bear in mind that when I sit in judgment as
CD Technoloqies Asla, ln.. ii ?019 r:0 Te, i,nrl,qrF! A.in, h . 2clS
 a member of thls Court, I must cast all personal feelings aside. conflict between the right of a Filipino, Ferdinand E. Marcos, to relurn to the Philippines,
and the right of the Philippine Government to bar such return in the interest of national
The issue before us must be resolved with total objectivity, on the basis only of
$ecurity and public safety" ln this contexl, the issue is clearly justiciable involving, as it
the established facts and the applicable law and not of wounds tlrat still fesler and
does, colliding assertions of individual right and governmental power. lssues o{ this
scars that have not healed. And not even of fear, for fear is a phantom. That phantom
nature more than explain why the 1986 Constituticnal Commission, led by the illustrious
did not rise when the people stood fast at EDSA - again$t the threat of total massacre
former Chief Justice Roberto Concepcion, incorporated in the 1987 Constitution, the
in defense at last of their freedom.
new provision on the power of Judicial Review, viz:
I cannot turn back on the lessons of liberty thal I taught for more than three
decades as a professor of Constitutional Law. These principles have not changed "Judicial power includes lhe duty of the courts of justice to settle aclurl
simply because I am rrow on the Court or a new administration is in power and the shoe controversiesinvolving rightswhich are legally demandable and enforceable, and
is on the other foot. to determine whether or not there has been a grave abuse of discretion amaunting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines Government." Article VIll, Section l, par. 2; (emphasis supplied)
agalnst 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 Mr. Marcos invokes in his favor the specifrc and precise conslitutional right of
by the Constitution to a// individuals, including the patriot and the homesick and the every Filipino to travel which, in the language of the Constitution, shall not be impaired
prodigal son returning, and tyrants and charlatans and scoundrels of every stripe. "except in the interest of national security, public safety, or public health, as may be
provided by law" (Art. lll, Sec. 6). That the right to travel comprises the right to travel
I vote to grant the petition.
within the country, to travel out of the country and to return to the cauntry (Philippines),
PARAS, J,, dissenting: is hardly disputable. Short of all such components, the right to travel is meaningless.
The real question arises in the interpretation of the qualifrcations attached by the
I dissent. Already, some people refer to us as a nation without discipline. Are we Constitulion to such right to travel.
ready to be also called a society without compassion? Petitioners contend that, in the absence o'f restricting legislation, the right to
The issue as to whether or not forrner President Ferdinand E. Marcos should be
travel is absolule. i do not agree. lt is my view that, with or without restricting
legislation, the interest of national security, public safety or public health can justify and
allowed 10 return to the Philippines rnay be resolved by answering two simple
even require restriclions r:n the right to travel, and that the clause "as may be provided
que$tions: Does he have the right to return to his own country?; and should national
by law" contained in Article lll, Section 6 of the 1987 Conslitution merely declares a
safety and security deny him this right?
constitutional leave or permission for Congress to enact laws thal may restrict the right
There is no dispute that the former President is still a Filipino citizen and both , -\l .: to travel in the interest of national security, public safety or public health. ldo not,
under the Universal Declaration of Human Rights and the 1987 Constitution of the therefore, accept the petitioners' submission that, in the absence of enabling
Philippines, he has the right to return to his own country except only if prevented by the
il,I legislation, the Philippine Government is powerless to restrict travel even when such
demands of national safety and national security. restriction is demanded by national security, public safety or public health. The power
I

Our Armed Forces have failed to prove this danger. They are bereft of hard of the State, in particular cases, to restrict lravel of its citizens flinds abundant support
evidence, and all they can rely on is sheer speculation. True, there is some danger but in the police power of the State, which may be exercised to preserve and maintain
there is no showing as 1o the extent, government as well as promote the general welfare of the greatest number of people.

It is incredible that one man alone together with his family, who had been ousted And yet, the power of the State, acting through a government in authority at any
from this country by popular will, can arouse an entire country to rise in morbid given time, to restrict travel, even if founded on police power, cannot be absolute and
sympathy for the cause he once espoused. unlinrited under all circum$tances, much le$s, can it be arbitrary and irrational.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific
the fnrmer President should be allowed to return to our country under the conditions constitutional right, i. e., the right to return to the country. , Have the respondents
that he and the members of his family be under house arrest in his hometown in llocos presented sufftcient evidence to offset or override the exercise of this right invoked by
lrlorte, and should President Marcos or any member of his family die, the body should Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient
not be taken out of the municipality of confinement and should be buried within ten (1 0) factual bases and data which would justify their reliance on national security and public
days from date. safety in negating the right to return invoked by Mr. Marcos?

lf we do this, our country shall have maintained its regard f or fundamental human I have given these questions a searching examination. I have carefully weighed
rights, for national discipline, and for hurnan compassion. and assessed the "briefing" given the Court by the highest military authorities of the
land last 28 July 1989. I have searched, but in vain, for convincing evidence that would
PADILLA. J., dissenting: defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It
appear$ to me that the apprehensions entertained and expressed by the respondents,
I dissent. As I see it, the core issue in thts case is, which righr wiil prevail in the including those conveyed through the military, do not, with all due respect, escalate to
CD Te.hnollgie. A'i!, 1fl. c ?l)19
proportions of natlonal security or public safety. They appear to be more speculative "national security" and "public safety" in avoidance of a speelfrc demandable and
than real, obsessive rather than factual. Moreover, such apprehensions even if enforceable constitutional and ba$ic human right to return
translated into realities, would be "under control," as admitted to the Court by said
3. the issue of Marcos' return to the Philipplnes, perhaps more than any issue
military authorities, given the resources and facilities at the command of government.
today, requires, of all members of the Court, in what appears to be an extended political
But, above all, the Filiplno people themselves, in my opinion, wii I know how to handle any
contest, the "cold neutrality of an inrpartial judge." lt is only thus that we fortify the
situation brought about by a political recognition of Mr. Marcos' right to return, and his
independence of this Court, with frdelity, not to any person, party or group but to the
actual return, to this country. The Court, in short, should not accept respondents
Constitution and only to the Constitution.
general apprehensions, concerns and perceptions at face value, in the light of a
countervailing and even irresistible, specific, clear, demandable, and enforceable right ACCORDINGLY, I vote to GRANT the petition.
asserted by a Filipino.
SARMIENTO, J., dissenting:
Deteriorating political, $ocial, econom;c or exceptional conditions, if any, are not
to be used as a pretext to justify derogation of human rights. I vote to granl the petition.
As a member of the United Nations, the Philippines has obligations under its
The only issue that saddles the Court is simply: "whether or not, in the exercise of
charter. By adopting the generally accepted principles 0f international law as par{ of the
the powers granted by the Constitution, the President may prohibit the Marcoses from
law of the land, (Art. ll, Sec. 2 of the Constitution), the Philippine government cannot just
returning to the Philippines." I therefore take exception to allusi0ns anent "the
pay lip serviee to Art. 13, par.2 of the Universal Declaration of Human Rights which
capacity of the Marcose$ to stir trouble even from afar." I have legitimate reason Io
provides that everyone has the right to leave any country, including his own, and fo
fear that my brethren, in passing judgment on the Marcoses (insofar as thelr "capacity
return to his country. This guarantee is reiterated in Art. Xll, par. 2 of the lnternational
to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or even
Covenant on Civil and Poiitical Rights which state$ that "no orle shall be arbitrarily
worse, convicted lhem without trial.
deprived of the right to enter his own country;' (emphasis supplied) 'Arbitrary" or
"arbitrariiy" was specif:cally chosen by the drafters of the Covenant I hoping to protect I also find quite strained what the majority would have as the "real issues" facing
an individual against unexpected, irresponsible or excessive encraachment orr his rights the Court: "The right to return to one's country," pitted againsl "the right of travel and
by the state based on national tradition$ or a particular sense of justice which falls freedom of abode", and their supposed distinctions under international law, as if such
shortr of international law or standards. distinctions, under international law, in lruth and in fact exist. There is only one right
involved here, whether under municipal or international law: the right of travel, whether
The Solicilor General maintains that because the respondenls, as alter eEos of
within one's own country, or to another, and the right to return thereto. The Conslitution
the President, have raised the argument of "nationai security" and "public safety," it is itself makes ncl distinctions; let, then, no one make a distinction. LJbi lex non distinguit,
the duty of this Court to unque$tioningly yield thereto, thus casting the controversy to
nec no$ distinguere debemus.
the realm of a political question. I do not agree. I believe thai this is one case where the
human and con$titutional right Invoked by one party is so specific, substantial and clear As the majority would indeed have it, the issue is one of power: Does the
that it cannot be overshadowed, much less, nullified by simplistic generalities; worse, Executive have the power to deny a citizen his right to travel (back to the country or to
the Court neglects its duty under the Con$titution when it allows the theory of politlcal another)? lt is a quection that, in essence, involves the application, and no more, of the
question to serve as a convenient, and yet, lame excuse for evading what, to me, is its provisions of the 1987 Constitution:
clearly pressing and demandable duty to the Constitution.
Sec. 6. The liberly of abode and of changing the same within the limits
During the oral arguments in thls case, I asked the Solicitor General how one prescribed by law shall not be impaired except upon larruful order of the court.
could validly defend the right of former Senalor Benigno S Aquino, Jr., a Filipino, to Neither shall the right to travel be impaired except in the interest of national
return to the Philippines in 1983 and, at the same time, credibly denylha right of Mr. security, public safety, or public health, as may be provided by law.
Marcos, also a Filipino, to return to the Philippirres in 1989. I still have not found a
The majority says, with ample help from American precedents, that the President
salisfactory an$wer to that question. lnstead, it has become clearer by the day that the
is possessed of the power, lhus:
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 On these premises, we hold the view that although the 1987 Constitution
1983 should not be made to persist in 1989. imposes limitations on the exercise of specifrc powers of the President, il
To one who owes Mr. Marcos, his wife and followers absolutely nothing, maintains intact what is traditionally considered as within the scope of "executive
personal, political or otherwise, the following are the cogent and decisive propositions power" Corollarily, the powers of the President cannot be said to be limited only
in this case * to the specific powers enumerated in the Constitution. ln other words, executive
power is more than the sum of specific powers so enumerated. .

1 Mr. Marcos is a Filipino and, as sueh, entitled to return to,

. . die and be buried in
this country; So also:

2. respondents have not shown any "hard evidence" or convincing proof why his . .,:! rili. rl Faced with the problem of whether or not the time ls right to allow the
right asa Filipinolo return should be denied him. All we have are general conclusions of Marcoses to return to the Philippines, the President is, under the Constitution,
aD rechn. o9le5 Arin, ni u 2019 .di4lnunlihe..orl
 constrained to considerthese basic principles in arriving at a decision. Morethan Obviously, none of the twin legal bars exist. There is no law banning the
that, having sworn to defend and uphold the Constitution, the President has the Marcoses from the country; neither is there any court decree banishing him from
obligation under the Con$titution to protect the people, promote their welf are and Philippine territory.
advance the national interest. lt must be borne in mind that the Constitution, aside
from being an allocation of power is also a social contract whereby the people It is to be noted that under the 1Q73 Constitution, the right to travel is worded as
have surrendered their sovereign powsrs to the State for the cornmon good. follows:
Hence, lestthe ofFrcers of the Government exercising the powers delegated by the
Sec. 5, The liberty of abode and of travel shall not be impaired except upon
people forget and the servants of the people become ruiers, the Constitulion
lawfui order of the cout1, or when necessary in the interest of national security,
rerninds everyone that "[s]overeignty resides in the people and all government public safety, or public health.
authority emanates f rom them." [Art. tl, Sec. '1 .]
Under this provision, the right may be abated: (1) upon a lawful court order, or (2)
And finally: "when necessary in the interest of national security, public safety, or public health."
To the President, the problem is one of balancing the general welfare and Arguably, the provision enabled the Chief Executive (Marcos) to moderate movement of
the common good against the exercise of rights of certain individuals. The power citizens, which, Bernas says, justified such practices as "hamletting", forced relocations,
involved is the President's residual power to protect the general welfare of the or the establishment of free-fire zones.
people. lt is founded on the duty of the President, as steward of the people, To
The new Constitution, however, so it clearly appears, has divested the Executive's
paraphrase Theodore Roosevelt, it is not only the power of the Presicient but also
implied power. And, as it so appears the right may be impaired only "within the limirs
his duty to do anythinE not forbiden by the Constitution or the laws that the needs
provided hy law." The President is out of the picture,
of the nation demanded [See Corwin, sultra, a7 153]. ll is a power borne by the
President's duly to preserve and defend the Constitution. lt also may be viewed as Admittediy, the Chief Executive is the 'sole" judge of all matters affecting national
a power implicit in the President's duty to take care that the laws are faith{ully security and foreign affairs; the Bill of Rights * precisely, a fornr of check aqainsl
executed [See Hyrnan, The American president, wher€ the author advanees the excesses of officialdom *
is, in this case, a formidable barrier against Presidential
view that an allowance of discretionary power is unavoidable in any government action. (Even on matters of $tate security. this Constitution prescribes limits to
and is best lodged in the Presidentl. Exe0utive's powers as Commander-in-Chief)
I am not persuaded. Second'. Assuming, ex hypothesi, that the President may legally act, the question
that emerges is: Has it been proved that Marcos, or his return, will, in fact, inlerpose a
t.
threat to the "national $ecurity, public sa{ety, or public health?" What appears in the
friist While the Chief Executive exercises powers not found expressly in the records are vehernent insistences that Marcos does pose a threat to the national qood
Charter, but has them by constitutional implication, the latter must yield to the * and yet, at the same time, we have persistenl claims, made by the military top brass
paramountcy of the Bill of Rights. According to Fernando: 'A regime of during the lengthy closed-door hearing on July 25,19B9,that "this Government will not
constitutionalism is thus unthinkable without an assurance of the primacy of a blll of fall' should the f ormer first family in exile step on Philippine soil, Which is which?
rights. precisely a conslitution exists to assure that in the discharge of the
governmental functions, the dignity that is the birthright of every human being is duly I At any ra1e, 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
safeguarded. To be true to its primordial aim, a constilution must lay down the
more so, present. ,

boundaries beyond which lies forbidden territory for state action."

My brethren have not demonstrated, to my $atisfaction, how the President may
That the President "has the obligalion under the Constitution to protect the
people . . . :"
is an obligation open to no doubt. But the question, and so I ask again
override the direct mandate of the fundarnental law. lt will not suifice, so I submit, to 'I , and again, is: From whom? lf we say "from Marcos," we unravel chinks in our political
say that the President's plenitude of powers, as provided in the Constitution, or by
armor. lt also flies in the face of claims, so confrdently asserted, that "this Government
sheer constitutional implication, prevail over express constitutional commands.
"Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the fleldof public law, "this
!i.'r will nol lall" even if we allowed Marcos to return.
argument . . . rests . . . not upon the text of the [Constitution] .. but upon a mere i,
,il
, '' ,. lt flies, frnally, in the face of the fact that a good number of the henchmen, trusted
inference therefrorn." For if it were, indeed, the intent of the Charter to create an allies, implementors of marlial law, and pathetie parasite$ of the ex-first couple are, in
exception, that is, by Presidential action, to the right of travel or ,iberty of abode and of fact, in the Government, in the comfort of ils offices, and or at the helm of its key
changing the same other than what it explicitly says already ("limits prescribed by law" agencies. Let us not, therefore, joke ourselves of moral factors warranting the
'or "upon lawful order of the court" ) - the Charter could have specifrcally declared continued banishment of Marcos. Morality is the last refuge of the self-righteous.
so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) Third:The problem is not of balancing the general welfare against the exercise of
lawful judicial mandate. Had the Constitution intended a third exception, that is, by individual liberties. As I indicated, not one shred of evidence, let alone solid evidence,
Presidential initiative, it could have so averred" lt would also have made the other than surmises of possibilities, has been shown to justify ihe "balancing act"
Constltution, as far as limits to the said right are concerned, come full circle: Limils by referred to. Worse, these conjectures contradict conlentions that as far as Philippine
legislative, judicial, and executive processes. society is concerned, Marcos is "history".
C, Tedino dgirs A, .. .r D 2019 .drliirtrlinr .!x, CO ir.fr.li! e5 Ari;, lr!: 4 ;019
 The power of the President, so my brethren declaim, "calls for the exercise of the President, under the present Constitution and existing laws, does not have it.
President's power as protector of peace." :r r Mandamus, I submit, lies.
This is the seif-same falsehood lr4arcos foisted on the Filipino people to justify
the authoritarian rule. lt also means that we are no better than he was"
Footnotes
That "[t]he power of the President to keep the peace is not limited merely Io .1935
- The Philippine presidency under the Constilution was patterned in large measure after
exercising the commander-in-chief powers in times of emergency or to leading the
State against external and internal threats to its existence,"::r It a bigger fantasy: lt not the American presidency. But at the outset, it must be pointed out that the Philippine
government established underthe eonstitution$ of 1935,1973 and 1987 is a unitary
only summons the martial law decisions of pre-"EDSA" (especially with respect to the
government with general powers unlike that of the United States which is a federal
detestable Amendment No. 6), it is inconsistent with the express provisions of the
government with limited and enumerated powers" Even so, the powers of the president of
commander-in chief clause of the 1987 Charter, a -Charter that has perceptibly reduced
ihe united State$ have through the years grown, developed and taken shape as students
the Executive's power; vis-a-vis ils'l 973 counterpart, ?:.1 of that presidency have demonstrated.
It.
FERNAN, C.J., concurring:
The undersigned would be lacking in candor to conceal his dislike, to say the
least, for Marcos. Because of Marcos, the writer of this dissent lost a son. "' His sons i From the speech "Restrictrons on Human Rights - States of Ernergency, National Securily,
only "offense" wa$ that he openly and unabatedly criticized the dictator, his associates, Public Safety and Public Order" delivered at the Lawasia Seminar on Human Rights,
and his military machinery. He would pay dearly for it; he was arrested and detained, Today and Tomorrow: The Role of Human Rights Commissions and Other 0rqans, at the
without judicial warrant or decision, for seven months and seven days" He was held Manila Hotel on August27, 1988"
incommunicado a greater part of the time, in the military stockade of Camp Crame. ln PAD ILLA, J,: dissenting:
his last week in detention, he was, grudgingly, hospitolized (prison hospital) and
confrned for chronic asthma. The deplorable conditions of his imprisonment 1 ln addition, he invokes the right as a hasic human right recognized by the Universal
exacerbated his delicate health beyond cure. Hedied, on November 11 ,1977, a martyr Declaration of Human Rights"
on the altar of the martial law apparatus. ;:l $.R Marks, Principles and Norms of Human Rights Applicable in Emergency Situations:
The undersigned also counts himself as one of the victims of Marcos' ruthless Underdevelopment, Cata$trophies and Anned Conficts, The international Dimensions of
apparatchiki. On August 14, 1979, he was, along with former President Diosdado Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.
Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia, charged,
.rl P Has$an, The Word 'Arbitrary" as used in the Universal Declaration of Human Rights:
'ASS0ed,' and placed under house arrest, for "inciting to sedition" and "rumor
"lllegal orUnjust", l0 Harv. lnt. 1.J., p.225(1969).
mongering,":',r in the midsl of the distribution of Ang Demokrasya Sa Pilipinas
(Democracy ln the Philippines/, a book extremely critical of martial rule, published by ,l F.C. Newman and K. Vasak, Civil and Political Rights, The International Dimensions ol
him and former Congressman Concordia, authored by President Macapagal and Human Rights, pp. 135-156.
translated into Tagalog by Congressman Rogaciano Mercado. ln addition, they were
5 As to whether the U.S. Federal Government will aliow Mr. Marcos to leave the United States,
also all accused of libel in more than two dozens of criminal complaints ftled by the
is beyond the issues in this case; similarly, a$ to how the Philippine government should
several military ofircers named in the "condemned" book as having violated the human
deal with Mr. Marcos upon his return is also outside of the issues in this case"
rights of dissenlers, and for other crimes, in the office of the Provinclal Fiscal of Rizal. lt
had to take the events at "EDSA'to set them free from house arrest and these political SARM IENTO, J.: dissentingi
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. 1 Decision,4.

I feel the ex-President's death abroad (presenled in the dailies as ''imminent") 'l See supra,l-4.
would leave him "unpunished" for his crimes to country and countrymen. lf punishment '.; Supra,2"
is due, let this leadership inflict it. But let him stand trial and accord him due process.
'1 C0NST., art. lll, sec. 6.
Modesty aside, I have staunchly and consistently advocated the human right of
travel and movement and the liberty of abode. ;rr We would have betrayed our own r: Decision, supra,18 ernphasis in the original.
ideals if we denied Marcos his rights. lt is his constitutional right, a right that can not be
abridged by personal hatred, fear, founded or unfounded, and by speculations of the i: Supra,20-21 .

man's "capacity" "to $tir trouble". Now that the shoe is on the other fool, Iet no more of
human rights violations be repeated against any one, friend or foe, ln a democratic
I Supra,21-22.
framework, there is no such thing as getting even. ' But see Cruz, J., Dissenting.
started this inquirv on the question of power' I hold that the tl FERNANDO, THE BILL OF RIGHTS,4 (1972 ed.)
.,.".,""",.,:::.:ajorltv CDlechnoloqier Asia, lfc, e ?019
 'l
9. Republic v. Quasha, No. L-30299, August 1 7, 1972,46 SCRA 1 60, 69.

10. CONST., ,eupra.

11. Supra.

12 CONST. (1973), aft, lV, $ec. 5.

13. Supra.

14. See BERNAS, THE CONSTITUTION OF THE REPUBLIC 0F THE PHIL|pPINES,263 (1987 ed.).

15, CONST. (1987i, art. lll, sec. 6, supra.

16. See supra, art. Vll, sec. 18,

1 7. See Go Tek v. Deportation Board, No L-23846, $eptember 9, 1977,79 SCRA 1 7.

18. See Lansang r. Garcia, Nos. L-33964,3396$ 33973,33982,34004,34013,34039,34265,

and 34339, December 11,1971 , 42 SCRA 448, 480.

1 9. Decision, supra, 21.

24. Supn.

21 Supra.

22. Supra,22.

23. See CONST. (1987), art. Vll, sec. 18, supra.

**, Abraham ("Ditto") $armiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976),
oflrcial student organ 0f the University of the Philippines. He wss detained in the military
stockade for common criminals f rom January to August, 1976.

24. $PI No. 79-347 ("For: Violation of Presidential Decree No. 90 and Article 142 of the Revised
Penal Code, as amended" - The Judge Advocate General's 0ffrce AFP), Special Civil
Action, G.R. No,54180, Diosdado Macapagal, Rogaciano M. Mercado, Manuel A,
Concordia, and Abraham F. Sarmiento, Petitioners, rs. The Preliminary lnvestigating
Fanel in SPI No. 79-347 lHamilton B. Dimaya, Brigadier General, AFP The Judge
Advocate General, Chairman; Leon 0" Ridao, Colonet, JAGS (GSC), Deputy Judge
Advocate General, Member and Amor B. Felipe Colonel, JAGS (GSC) Executive Officet
Member], and the Minister of National Defense, Respondents - Suprerne Court.

25. See Santos v. The Special Committee on Travel, et al., G.R. No. 145748, June 28, 1977, of
which the undersigned was the counsel of the petitioner.

CD tchnologies Asla, hc. o 2019