Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR 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.

 

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved, the Court's decision in this case would undeniably have a profound effect on the political, economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a revolutionary government. Her ascension to and consilidation of power have not been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the victory of "people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the February Revolution, led a failed coup that left scores of people, both combatants and civilians, dead. There were several other armed sorties of lesser significance, but the message they conveyed was the same a split in the ranks of the military establishment that thraetened civilian supremacy over military and brought to the fore the realization that civilian government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements and among rabid followers of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the communists have set up a parallel government of their own on the areas they effectively control while the separatist are virtually free to move about in armed bands. There has been no let up on this groups' determination to wrest power from the govermnent. Not only through resort to arms but also to through the use of propaganda have they been successful in dreating chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoses has remained elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the resolution of the following issues:

1. Does the President have the power to bar the return of former President Marcos and family to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his family from returning to the Philippines, in the interest of "national security, public safety or public health

a. Has the President made a finding that the return of former President Marcos and his family to the Philippines is a clear and present danger to national security, public safety or public health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with in making such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's decision, including the grounds upon which it was based, been made known to petitioners so that they may controvert the same?

c. Is the President's determination that the return of former President Marcos and his family to the Philippines is a clear and present danger to national security, public safety, or public health a political question?

d. Assuming that the Court may inquire as to whether the return of former President Marcos and his family is a clear and present danger to national security, public safety, or public health, have respondents established such fact?

3. Have the respondents, therefore, in implementing the President's decision to bar the return of former President Marcos and his family, acted and would be acting without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing any act which would effectively bar the return of former President Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because only a court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or agency of the government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case involves a political question which is non-justiciable. According to the Solicitor General:

As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these constitutional rights in vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at this time in the face of the determination by the President that such return and residence will endanger national security and public safety.

It may be conceded that as formulated by petitioners, the question is not a political question as it involves merely a determination of what the law provides on the matter and application thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with the more primordial and transcendental right of the State to security and safety of its nationals, the question becomes political and this Honorable Court can not consider it.

There are thus gradations to the question, to wit:

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

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish their residence here even if their return and residence here will endanger national security and public safety? this is still a justiciable question which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall return to the Philippines and establish their residence here? This is now a political question which this Honorable Court can not decide for it falls within the exclusive authority and competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security over individual rights. In support thereof, they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for reasons of national security and public safety has international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose return to their homelands was prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits. We, however, view this issue in a different light. Although we give due weight to the parties' formulation of the issues, we are not bound by its narrow confines in arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines of the right to travel and the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right to return to one's country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those pertaining to the liberty of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of effectively exercising the right to travel are not determinative of this case and are only tangentially material insofar as they relate to a conflict between executive action and the exercise of a protected right. The issue before the Court is novel and without precedent in Philippine, and even in American jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the right to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the express power of the Court under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious threat to national interest and welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government." [At 631-632.1 If this can be said of the legislative power which is exercised by two chambers with a combined membership of more than two hundred members and of the judicial power which is vested in a hierarchy of courts, it can equally be said of the executive power which is vested in one official the President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the same article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the framers of the Constitution intend that the President shall exercise those specific powers and no other? Are these se enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that the President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated powers, and what is not enumerated is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with the same problem. He said:

Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution ought to settle everything beforehand it should be a nightmare; by the same token, to those who think that constitution makers ought to leave considerable leeway for the future play of political forces, it should be a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested in a President of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who held the office from Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's dictatorship, he concluded that "what the presidency is at any particular moment depends in important measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of course, an agency of government subject to unvarying demands and duties no remained, of cas President. But, more than most agencies of government, it changed shape, intensity and ethos according to the man in charge. Each President's distinctive temperament and character, his values, standards, style, his habits, expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded the entire government. The executive branch, said Clark Clifford, was a chameleon, taking its color from the character and personality of the President. The thrust of the office, its impact on the constitutional order, therefore altered from President to President. Above all, the way each President understood it as his personal obligation to inform and involve the Congress, to earn and hold the confidence of the electorate and to render an accounting to the nation and posterity determined whether he strengthened or weakened the constitutional order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the consideration of tradition and the development of presidential power under the different constitutions are essential for a complete understanding of the extent of and limitations to the President's powers under the 1987 Constitution. The 1935 Constitution created a strong President with explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modify the system of government into the parliamentary type, with the President as a mere figurehead, but through numerous amendments, the President became even more powerful, to the point that he was also the de facto Legislature. The 1987 Constitution, however, brought back the presidential system of government and restored the separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the Philippines and the Legislature may vote the shares of stock held by the Government to elect directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:

...Here the members of the legislature who constitute a majority of the "board" and "committee" respectively, are not charged with the performance of any legislative functions or with the doing of anything which is in aid of performance of any such functions by the legislature. Putting aside for the moment the question whether the duties devolved upon these members are vested by the Organic Act in the Governor-General, it is clear that they are not legislative in character, and still more clear that they are not judicial. The fact that they do not fall within the authority of either of these two constitutes logical ground for concluding that they do fall within that of the remaining one among which the powers of government are divided ....[At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find reinforcement for the view that it would indeed be a folly to construe the powers of a branch of government to embrace only what are specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At 210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essentially ideals to guide governmental action. But such does not mean that they are empty words. Thus, in the exercise of presidential functions, in drawing a plan of government, and in directing implementing action for these plans, or from another point of view, in making any decision as President of the Republic, the President has to consider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of the Government exercising the powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds everyone that "[s]overeignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to the country are the deposed dictator and his family at whose door the travails of the country are laid and from whom billions of dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of even the preferred freedoms of speech and ofexpression, although couched in absolute terms, admits of limits and must be adjusted to the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

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

More particularly, this case calls for the exercise of the President's powers as protector of the peace. Rossiter The American Presidency].The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security.

That the President has the power under the Constitution to bar the Marcose's from returning has been recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the House of Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for true national reconciliation and as irrevocable proof of our collective adherence to uncompromising respect for human rights under the Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense of compassion to allow a man to come home to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar to the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or denied.

The Extent of Review

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

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

There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere alloted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise of such authority, the function of the Court is merely to check not to supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act [At 479-480.]

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

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

The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw that would break the camel's back. With these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.

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

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

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

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

SO ORDERED.

 

Separate Opinions

 

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. History and time-honored principles of constitutional law have conceded to the Executive Branch certain powers in times of crisis or grave and imperative national emergency. Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate," "emergency." whatever they may be called, the fact is that these powers exist, as they must if the governance function of the Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the President to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on national peace and order in these admittedly critical times, said question cannot be withdrawn from the competence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to public order and safety. One needs only to recall the series of destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel incident which occurred barely five (5) months after the People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the Philippines. The public disorder and peril to life and limb of the citizens engendered by this event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy hostage. Troops on board several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms and ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group members were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for the projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people power" movement was neutralized thru checkpoints set up by the authorities along major road arteries where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden their followers toward similar actions, but any such action would be seized upon as an opportunity by other enemies of the State, such as the Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against the government. Certainly, the state through its executive branch has the power, nay, the responsibility and obligation, to prevent a grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines was a moral victory for the Filipino people; and the installation of the present administration, a realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy, compassion and even Filipino tradition. The political and economic gains we have achieved during the past three years are however too valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for both unloved and despised persons on one hand and the rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are interpreting the Constitution for only one person and constituting him into a class by himself. The Constitution is a law for all classes of men at all times. To have a person as one class by himself smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of power. Mr. Marcos is insensate and would not live if separated from the machines which have taken over the functions of his kidneys and other organs. To treat him at this point as one with full panoply of power against whom the forces of Government should be marshalled is totally unrealistic. The Government has the power to arrest and punish him. But does it have the power to deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no showing of the existence of a law prescribing the limits of the power to impair and the occasions for its exercise. And except for citing breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any grave exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to consider. They contend that the decision to ban former President Marcos, and his family on grounds of national security and public safety is vested by the Constitution in the President alone. The determination should not be questioned before this Court. The President's finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been conferred on the courts by express constitutional or statutory provisions. It is not so easy, however, to define the phrase political question, nor to determine what matters fall within its scope. It is frequently used to designate all questions that he outside the scope of the judicial power. More properly, however, it means those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr., who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, which identifies it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or potentiality of embarrassment from multifarious pronouncements by various departments on one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the President or Congress, the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power against a civil right which claim is not found in a specific provision is dangerous. Neither should we validate a roving commission allowing public officials to strike where they please and to override everything which to them represents evil. The entire Government is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying the circumstances when the right may be impaired in the interest of national security or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the commander-in-chief clause which allows the President to call out the armed forces in case of lawless violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so constitute the strongest indication that the hard core "loyalists" who would follow Marcos right or wrong are so few in number that they could not possibly destabilize the government, much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of Filipino customs and traditions to allow a dying person to return to his home and breath his last in his native surroundings. Out of the 103 Congressmen who passed the House resolution urging permission for his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. There are also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that such a return would deprive his fanatic followers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents' contention that national security and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the President. Section 6 further provides that the right to travel, and this obviously includes the right to travel out of or back into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or from the Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the return of Mr. Marcos and family is concerned. There is absolutely no showing how any of these statutes and regulations could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply be applying the Constitution, in the preservation and defense of which all of us in Government, the President and Congress included, are sworn to participate. Significantly, the President herself has stated that the Court has the last word when it comes to constitutional liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).

Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest and detention of "enemies of the State" without charges being filed against them, the dissolution of Congress and the exercise by the President of legislative powers, the trial of civilians for civil offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of newspaper offices, radio and television stations and other forms of media, the proposals to amend the Constitution, etc. was invariably met by an invocation that the petition involved a political question. It is indeed poetic justice that the political question doctrine so often invoked by then President Marcos to justify his acts is now being used against him and his family. Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition of judicial power was added to the vesting in the Supreme Court and statutory courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid having to make decisions simply because they are too controversial, displeasing to the President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution was accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power through a convenient resort to the question doctrine. We are compelled to decide what would have been non-justiceable under our decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to resolve. There are still some political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national security do not readily lend themselves to the presentation of proof before a court of justice. The vital information essential to an objective determination is usually highly classified and it cannot be rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It posed a rhetorical question. If after investigating conditions in the Archipelago or any part thereof, the President finds that public safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the same facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the president acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive Branch which has the appropriate civil and military machinery for the facts. This was the method which had to be used in Lansang. This Court relied heavily on classified information supplied by the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of the government whose act was in question to obtain the facts. And as should be expected the Executive Branch supplied information to support its position and this Court was in no situation to disprove them. It was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from giving the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ lacks popular support because of one reason or another. But when this Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for determining the clear and present danger to national security and public safety. The majority of the Court has taken judicial notice of the Communist rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are led by people who have always opposed him. If we use the problems of Government as excuses for denying a person's right to come home, we will never run out of justifying reasons. These problems or others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present danger to national security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only after the present petition was filed that the alleged danger to national security and public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to (1) national welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability. (See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and public safety. The President has been quoted as stating that the vast majority of Filipinos support her position. (The Journal, front page, January 24,1989) We cannot validate their stance simply because it is a popular one. Supreme Court decisions do not have to be popular as long as they follow the Constitution and the law. The President's original position "that it is not in the interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that "considerations of the highest national good dictate that we preserve the substantial economic and political gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989). "Interest of the nation national good," and "preserving economic and political gains," cannot be equated with national security or public order. They are too generic and sweeping to serve as grounds for the denial of a constitutional right. The Bill of Rights commands that the right to travel may not be impaired except on the stated grounds of national security, public safety, or public health and with the added requirement that such impairment must be "as provided by law." The constitutional command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest and most present danger to national security and constitutional freedoms. Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples' power." Yet, there is no move to arrest and exile the leaders of student groups, teachers' organizations, pea ant and labor federations, transport workers, and government unions whose threatened mass actions would definitely endanger national security and the stability of government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It is not shown how extremists from the right and the left who loathe each other could find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the claim of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome person can be substituted for the Marcos threat as the catalysing factor. The alleged confluence of NPAs, secessionists, radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or any serious problem, the Government can state that the situation threatens a confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's decision to use the political question doctrine in a situation where it does not apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured the Court that a rebellion of the above combined groups will not succeed and that the military is on top of the situation. Where then is the clear danger to national security? The Court has taken judicial notice of something which even the military denies. There would be severe strains on military capabilities according to General de Villa. There would be set-backs in the expected eradication of the Communist threat. There would be other serious problems but all can be successfully contained by the military. I must stress that no reference was made to a clear and present danger to national security as would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the right to travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was unable to act adequately on any matter for any reason that in his judgment required immediate action. When the Bill of Rights provides that a right may not be impaired except in the interest of national security, public safety, or public health and further requires that a law must provide when such specifically defined interests are prejudiced or require protection, the inaction of Congress does not give reason for the respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling against an unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right which is legally demandable and enforceable. For his own good, it might be preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we should differentiate the right to return home from the right to go abroad or to move around in the Philippines. If at all, the right to come home must be more preferred than any other aspect of the right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national security" during that unfortunate period which led the framers of our present Constitution not only to re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have a freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains that our country has achieved in terms of human rights, especially human rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who were barred by their successors from returning to their respective countries. There is no showing that the countries involved have constitutions which guarantee the liberty of abode and the freedom to travel and that despite such constitutional protections, the courts have validated the "ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeply committed to democratic principles and as observant of constitutional protections as President Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord and to divide the nation. Opposition to the government no matter how odious or disgusting is, however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless to defend itself against a threat to national security? Does the President have to suspend the privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has more than ample powers under eixisting law to deal with a person who transgresses the peace and imperils public safety. But the denial of travel papers is not one of those powers because the Bill of Rights says so. There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live and die in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit simply because many believe Marcos to be beneath contempt and undeserving of the very liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which may depend on the action we take today), the respondents have acted with grave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not, that the petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government was prepared to prove the justification for opposing the herein petition, i.e. that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and three representatives from the military appeared for the respondents, together with former Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive would pose a threat to the national security as it had alleged. The fears expressed by its representatives were based on mere conjectures of political and economic destabilization without any single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's decision" to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the most detested man in the entire history of our country. But we are not concerned here with popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us see things through the prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts and the applicable law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear is a phantom. That phantom did not rise when the people stood fast at EDSA against the threat of total massacre in defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of Constitutional Law. These principles have not changed simply because I am now on the Court or a new administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals, including the patriot and the homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the Philippines may be resolved by answering two simple questions: Does he have the right to return to his own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on is sheer speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by popular will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should be allowed to return to our country under the conditions that he and the members of his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos or any member of his family die, the body should not be taken out of the municipality of confinement and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline, and for human compassion.

 

PADILLA, J., dissenting:

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

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

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

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

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

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and data which would justify their reliance on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained and expressed by the respondents, including those conveyed through the military, do not, with all due respect, escalate to proportions of national security or public safety. They appear to be more speculative than real, obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be "under control," as admitted to the Court by said military authorities, given the resources and facilities at the command of government. But, above all, the Filipino people themselves, in my opinion, will know how to handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in short, should not accept respondents' general apprehensions, concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

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

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

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

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

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

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or convincing proof why his right as a Filipino to return should be denied him. All we have are general conclusions of "national security" and "public safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all members of the Court, in what appears to be an extended political contest, the "cold neutrality of an impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any person, party or group but to the Constitution and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or even worse, convicted them without trial.

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

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a citizen his right to travel (back to the country or to another)? It is a question that, in essence, involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of the power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of the Government exercising the powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [See Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.

I

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly safeguarded. To be true to its primordial aim a constitution must lay down the boundaries beyond which he's forbidden territory for state action" 8

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

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the interest of national security, public safety, or public health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices as "hamletting", forced relocations, or the establishment of free-fire zones. 14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so appears, the right may be impaired only "within the limits provided by law . 15 The President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign affairs; 17 the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a formidable barrier against Presidential action. (Even on matters of State security, this Constitution prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public health?" What appears in the records are vehement insistences that Marcos does pose a threat to the national good and yet, at the same time, we have persistent claims, made by the military top brass during the lengthy closed-door hearing on July 25, 1989, that "this Government will not fall" should the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court itself must be content that the threat is not only clear, but more so, present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the continued banishment of Marcos. Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was arrested and detained, without judicial warrant or decision, for seven months and seven days. He was held incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering " 24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule, published by him and former Congressman Concordia, authored by President Macapagal and translated into Tagalog by Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal complaints filed by the several military officers named in the "condemned" book as having violated the human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos' return not because I have a score to settle with him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no more of human rights violations be repeated against any one, friend or foe. In a democratic framework, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the present Constitution and existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

 

 

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. History and time-honored principles of constitutional law have conceded to the Executive Branch certain powers in times of crisis or grave and imperative national emergency. Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate," 'emergency." whatever they may be called, the fact is that these powers exist, as they must if the governance function of the Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the President to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on national peace and order in these admittedly critical times, said question cannot be withdrawn from the competence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to public order and safety. One needs only to recall the series of destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel incident which occurred barely five (5) months after the People's Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the Philippines. The public disorder and peril to life and limb of the citizens engendered by this event subsided only upon the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy hostage. Troops on board several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms and ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group members were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for the projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people power" movement was neutralized thru checkpoints set up by the authorities along major road arteries where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden their followers toward similar actions, but any such action would be seized upon as an opportunity by other enemies of the State, such as the Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against the government. Certainly, the state through its executive branch has the power, nay, the responsibility and obligation, to prevent a grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines was a moral victory for the Filipino people; and the installation of the present administration, a realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy, compassion and even Filipino tradition. The political and economic gains we have achieved during the past three years are however too valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for both unloved and despised persons on one hand and the rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are interpreting the Constitution for only one person and constituting him into a class by himself. The Constitution is a law for all classes of men at all times. To have a person as one class by himself smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of power. Mr. Marcos is insensate and would not live if separated from the machines which have taken over the functions of his kidneys and other organs. To treat him at this point as one with full panoply of power against whom the forces of Government should be marshalled is totally unrealistic. The Government has the power to arrest and punish him. But does it have the power to deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no showing of the existence of a law prescribing the limits of the power to impair and the occasions for its exercise. And except for citing breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any grave exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to consider. They contend that the decision to ban former President Marcos, and his family on grounds of national security and public safety is vested by the Constitution in the President alone. The determination should not be questioned before this Court. The President's finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

x x x x x x x x x

It is a well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been conferred on the courts by express constitutional or statutory provisions. It is not so easy, however, to define the phrase political question, nor to determine what matters fall within its scope. It is frequently used to designate all questions that he outside the scope of the judicial power. More properly, however, it means those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr., who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, which Identifies it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or potentiality of embarrassment from multifarious pronouncements by various departments on one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the President or Congress, the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power against a civil right which claim is not found in a specific provision is dangerous. Neither should we validate a roving commission allowing public officials to strike where they please and to override everything which to them represents evil. The entire Govern ment is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying the circumstances when the right may be impaired in the interest of national security or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the commander-in-chief clause which allows the President to call out the armed forces in case of lawless violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so constitute the strongest indication that the hard core "loyalists" who would follow Marcos right or wrong are so few in number that they could not possibly destabilize the government, much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of Filipino customs and traditions to allow a dying person to return to his home and breath his last in his native surroundings. Out of the 103 Congressmen who passed the House resolution urging permission for his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. There are also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that such a return would deprive his fanatic followers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents' contention that national security and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the President. Section 6 further provides that the right to travel, and this obviously includes the right to travel out of or back into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or from the Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the return of Mr. Marcos and family is concerned. There is absolutely no showing how any of these statutes and regulations could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply be applying the Constitution, in the preservation and defense of which all of us in Government, the President and Congress included, are sworn to participate. Significantly, the President herself has stated that the Court has the last word when it comes to constitutional liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).

Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest and detention of "enemies of the State" without charges being filed against them, the dissolution of Congress and the exercise by the President of legislative powers, the trial of civilians for civil offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of newspaper offices, radio and television stations and other forms of media, the proposals to amend the Constitution, etc. was invariably met by an invocation that the petition involved a political question. It is indeed poetic justice that the political question doctrine so often invoked by then President Marcos to justify his acts is now being used against him and his family. Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition of judicial power was added to the vesting in the Supreme Court and statutory courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid having to make decisions simply because they are too controversial, displeasing to the President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution was accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power through a convenient resort to the question doctrine. We are compelled to decide what would have been non-justiceable under our decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to resolve. There are still some political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national security do not readily lend themselves to the presentation of proof before a court of justice. The vital information essential to an objective determination is usually highly classified and it cannot be rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It posed a rhetorical question. If after investigating conditions in the Archipelago or any part thereof, the President finds that public safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the same facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the president acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive Branch which has the appropriate civil and military machinery for the facts. This was the method which had to be used in Lansang. This Court relied heavily on classified information supplied by the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of the government whose act was in question to obtain the facts. And as should be expected the Executive Branch supplied information to support its position and this Court was in no situation to disprove them. It was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from giving the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ lacks popular support because of one reason or another. But when this Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for determining the clear and present danger to national security and public safety. The majority of the Court has taken judicial notice of the Communist rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are led by people who have always opposed him. If we use the problems of Government as excuses for denying a person's right to come home, we will never run out of justifying reasons. These problems or others like them will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present danger to national security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only after the present petition was filed that the alleged danger to national security and public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to-41) national welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability. (See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and public safety. The President has been quoted as stating that the vast majority of Filipinos support her position. (The Journal, front page, January 24,1989) We cannot validate their stance simply because it is a popular one. Supreme Court decisions do not have to be popular as long as they follow the Constitution and the law. The President's original position "that it is not in the interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that "considerations of the highest national good dictate that we preserve the substantial economic and political gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989). "Interest of the nation national good," and "preserving economic and political gains," cannot be equated with national security or public order. They are too generic and sweeping to serve as grounds for the denial of a constitutional right. The Bill of Rights commands that the right to travel may not be impaired except on the stated grounds of national security, public safety, or public health and with the added requirement that such impairment must be "as provided by law." The constitutional command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest and most present danger to national security and constitutional freedoms. Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples' power." Yet, there is no move to arrest and exile the leaders of student groups, teachers' organizations, pea ant and labor federations, transport workers, and government unions whose threatened mass actions would definitely endanger national security and the stability of government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It is not shown how extremists from the right and the left who loathe each other could find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the claim of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome person can be substituted for the Marcos threat as the catalysing factor. The alleged confluence of NPAS, secessionists, radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or any serious problem, the Government can state that the situation threatens a confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply regret that the Court's decision to use the political question doctrine in a situation where it does not apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured the Court that a rebellion of the above combined groups will not succeed and that the military is on top of the situation. Where then is the clear danger to national security? The Court has taken judicial notice of something which even the military denies. There would be severe strains on military capabilities according to General de Villa. There would be set-backs in the expected eradication of the Communist threat. There would be other serious problems but all can be successfully contained by the military. I must stress that no reference was made to a clear and present danger to national security as would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the right to travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was unable to act adequately on any matter for any reason that in his judgment required immediate action. When the Bill of Rights provides that a right may not be impaired except in the interest of national security, public safety, or public health and further requires that a law must provide when such specifically defined interests are prejudiced or require protection, the inaction of Congress does not give reason for the respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling against an unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right which is legally demandable and enforceable. For his own good, it might be preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we should differentiate the right to return home from the right to go abroad or to move around in the Philippines. If at all, the right to come home must be more preferred than any other aspect of the right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national security" during that unfortunate period which led the framers of our present Constitution not only to re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have a freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains that our country has achieved in terms of human rights, especially human rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who were barred by their successors from returning to their respective countries. There is no showing that the countries involved have constitutions which guarantee the liberty of abode and the freedom to travel and that despite such constitutional protections, the courts have validated the "ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeply committed to democratic principles and as observant of constitutional protections as President Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord and to divide the nation. Opposition to the government no matter how odious or disgusting is, however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless to defend itself against a threat to national security? Does the President have to suspend the privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has more than ample powers under eixisting law to deal with a person who transgresses the peace and imperils public safety. But the denial of travel papers is not one of those powers because the Bill of Rights says so. There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and die-in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit simply because many believe Marcos to be beneath contempt and undeserving of the very liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which may depend on the action we take today), the respondents have acted with grave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not, that the petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government was prepared to prove the justification for opposing the herein petition, i. that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and three representatives from the military appeared for the respondents, together with former Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive would pose a threat to the national security as it had alleged. The fears expressed by its representatives were based on mere conjectures of political and economic destabilization without any single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's decision" to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the most detested man in the entire history of our country. But we are not concerned here with popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us see things through the prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts and the applicable law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear is a phantom. That phantom did not rise when the people stood fast at EDSA against the threat of total massacre in defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of Constitutional Law. These principles have not changed simply because I am now on the Court or a new administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals, including the patriot and the homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the Philippines may be resolved by answering two simple questions: Does he have the right to return to his own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on is sheer speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by popular will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should be allowed to return to our country under the conditions that he and the members of his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos or any member of his family die, the body should not be taken out of the municipality of confinement and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline, and for human compassion.

PADILLA, J., dissenting:

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

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

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

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

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

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and data which would justify their reliance on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained and expressed by the respondents, including those conveyed through the military, do not, with all due respect, escalate to proportions of national security or public safety. They appear to be more speculative than real, obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be "under control," as admitted to the Court by said military authorities, given the resources and facilities at the command of government. But, above all, the Filipino people themselves, in my opinion, will know how to handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in short, should not accept respondents' general apprehensions, concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

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

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

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

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

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

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or con- vincing proof why his right as a Filipino to return should be denied him. All we have are general conclusions of "national security" and "public safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all members of the Court, in what appears to be an extended political contest, the "cold neutrality of an impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any person, party or group but to the Constitution and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or even worse, convicted them without trial.

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

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a citizen his right to travel (back to the country or to another)? It is a question that, in essence, involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of the power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of the Government exercising the powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [See Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.

I

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly safeguarded. To be true to its primordial aim a constitution must lay down the boundaries beyond which he's forbidden territory for state action" 8

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

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the interest of national security, public safety, or public health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices as "hamletting", forced relocations, or the establishment of free-fire zones. 14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so appears, the right may be impaired only "within the limits provided by law . 15 The President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign affairs; 17 the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a formidable barrier against Presidential action. (Even on matters of State security, this Constitution prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public health?" What appears in the records are vehement insistences that Marcos does pose a threat to the national good and yet, at the same time, we have persistent claims, made by the military top brass during the lengthy closed-door hearing on July 25, 1989, that "this Government will not fall" should the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court itself must be content that the threat is not only clear, but more so, present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the continued banishment of Marcos. Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence" 22 is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was arrested and detained, without judicial warrant or decision, for seven months and seven days. He was held incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering " 24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule, published by him and former Congressman Concordia, authored by President Macapagal and translated into Tagalog by Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal complaints filed by the several military officers named in the "condemned" book as having violated the human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos' return not because I have a score to settle with him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for Ms crimes to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no more of human rights violations be repeated against any one, friend or foe. In a democratic framwork, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the present Constitution and existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

Footnotes

** The Philippine presidency under the 1935 Constitution was patterned in large measure after the American presidency. But at the outset, it must be pointed out that the Philippine government established under the constitutions of 1935, 1973 and 1987 is a unitary government with general powers unlike that of the United States which is a federal government with limited and enumerated powers. Even so, the powers of the president of the United States have through the years grown, developed and taken shape as students of that presidency have demonstrated.

FERNAN, C. J.:

1 From the speech "Restrictions on Human Rights-States of Emergency, National Security, Public Safety and Public Order" delivered at the Lawasia Seminar on Human Rights, Today and Tomorrow: The Role of Human Rights Commissions and Other Organs, at the Manila Hotel on August 27, 1988.

CRUZ, J.

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

2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations: Under development, Catastrophies and Armed Conflicts, The International Dimensions of Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.

3 P. Hassan, The Word "Arbitrary" as used in the Universal Declaration of Human Rights: "Illegal or Unjust", 10 Harv Int. L.J., p. 225 (1969). 4 FC Newman and IC Vasak Civil and Political Rights, The International Dimensions of Human Rights, pp. 135-166.

4 F.C. Newman and K.Vasak and Poitical Rights, The International Dimensions of Human Rights, pp. 135-166.5as to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States, is beyond the issues in this case; similarly, as to how the Philippine government should deal with Mr. Marcos upon his return is also outside of the issues in this case.

5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States, is beyond the issues in this case; similarly, as to how the Philippine Government should deal with Mr. Marcos upon his return is also outside of the issues in this case.

SARMIENTO, J.:

1 Decision, 4.

2 See supra, 1-4.

3 Supra, 2.

4 CONST., art. Ill, see. 6.

5 Decision, supra, 18; emphasis in the original.

6 Supra, 20-21.

7 Supra, 21-22.

* But see Cruz, J., Dissenting.

8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).

9 Republic v. Quasha, No L-30299, Aug. 17, 1972, 46 SCRA 160,169.

10 CONST., supra.

11 Supra.

12 CONST. (1973), art. IV, sec. 5.

13 Supra.

14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263 (1987 ED.)

15 CONST. (1987), art III, sec. 6, supra.

16 See Supra ,Aart VII, sec 18.

17 See Go Tek v. Deportation Board , No. L-23846, September 9, 1977, 79 scra 17.

18 See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265, and 34339, December 11, 1971, 42 SCRA 448, 480.

19 Decision, supra, 21.

20 Supra.

21 Supra.

22 Supra, 22.

23 Abraham ("Ditto") Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976), official student organ of the University of the philippines. He was detained in the military stockade for commoncriminals from Jan. to Aug, 1976.

24 SPI No. 79-347 ("For: Violation of Presidential Decree No. 90 and Article 142 of the Revised Penal Code, as amended the JG.R. No. 54180, Diosdado Macapagal, Rogaciano M. Mercado, Manuel A. Concordia, and Abraham F. Sarmiento, Petitioners, vs- The Preliminary Investigating Panel in SPI No. 79-347 [Hamilton B. Dimaya Brigadier General, AFP, The Judge Advocate General, Chairman; Leon 0. Ridao Colonel, JAGS GSC Deputy Judge Advocate General, Member; and Amor B. Felipe, Colonel, JAGS (GSC) Executive Officer, Member], and the Minister of National Defense, Respondent Supreme Court.

25 See Santos v. The Special Commottee on Travel, et al., G.R. No. L-45748, June 28, 1977, of which the undersigned was the counsel of the petitioner.


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