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, R.,
IRENE M. ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR !"IGUE# $%& P'ILIPPINE
CONSTITUTION ASSOCIATION (P'ILCONSA), repre*e%te& b+ ,t* Pre*,&e%t,
CONRADO F. ESTRELLA, petitioners,
vs.
'ONORA-LE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFRE! ORDO"E#,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE .ILLA, ,% t/e,r
0$p$0,t+ $* Se0ret$r+ o1 Fore,2% A11$,r*, E3e04t,5e Se0ret$r+, Se0ret$r+ o1
4*t,0e, Imm,2r$t,o% Comm,**,o%er, Se0ret$r+ o1 N$t,o%$6 De1e%*e $%& C/,e1 o1
St$11, re*pe0t,5e6+, respondents.

CORTES, J.:
Before the Court is a contreversy of grave national importance. hile ostensibly only
legal issues are involved, the Court!s decision in this case "ould undeniably have a
profound effect on the political, economic and other aspects of national life.
e recall that in #ebruary $%&', #erdinand E. Marcos "as deposed from the
presidency via the non(violent )people po"er) revolution and forced into e*ile. +n his
stead, Cora,on C. A-uino "as declared President of the Republic under a
revolutionary government. .er ascension to and consilidation of po"er have not been
unchallenged. /he failed Manila .otel coup in $%&' led by political leaders of Mr.
Marcos, the ta0eover of television station Channel 1 by rebel troops led by Col. Canlas
"ith the support of )Marcos loyalists) and the unseccessful plot of the Marcos spouses
to surreptitiously return from .a"ii "ith mercenaries aboard an aircraft chartered by a
2ebanese arms dealer 3Manila Bulletin, 4anuary 56, $%&17 a"a0ened the nation to the
capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind
loyalty of their follo"ers in the country. /he ratification of the $%&1 Constitution
enshrined the victory of )people po"er) and also clearly reinforced the constitutional
moorings of Mrs. A-uino!s presidency. /his did not, ho"ever, stop bloody challenges to
the government. 8n August 9&, $%&1, Col. :regorio .onasan, one of the ma;or players
in the #ebruary Revolution, led a failed coup that left scores of people, both
combatants and civilians, dead. /here "ere several other armed sorties of lesser
significance, but the message they conveyed "as the same < a split in the ran0s of
the military establishment that thraetened civilian supremacy over military and brought
to the fore the reali,ation that civilian government could be at the mercy of a fractious
military.
But the armed threats to the :overnment "ere not only found in misguided elements
and among rabid follo"ers of Mr. Marcos. /here are also the communist insurgency
and the seccessionist movement in Mindanao "hich gained ground during the rule of
Mr. Marcos, to the e*tent that the communists have set up a parallel government of
their o"n on the areas they effectively control "hile the separatist are virtually free to
move about in armed bands. /here has been no let up on this groups! determination to
"rest po"er 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 destabili,ing
the country.
Nor are the "oes of the Republic purely political. /he accumulated foreign debt and
the plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated. /he efforts at economic recovery, three years after Mrs. A-uino assumed
office, have yet to sho" concrete results in alleviating the poverty of the masses, "hile
the recovery of the ill(gotten "ealth of the Marcoses has remained elusive.
No", Mr. Marcos, in his deathbed, has signified his "ish to return to the Philipppines to
die. But Mrs. A-uino, considering the dire conse-uences to the nation of his return at a
time "hen the stability of government is threatened from various directions and the
economy is ;ust beginning to rise and move for"ard, has stood firmly on the decision to
bar the return of Mr. Marcos and his family.
The Petition
/his case is uni-ue. +t should not create a precedent, for the case of a dictator forced
out of office and into e*ile after causing t"enty years of political, economic and social
havoc in the country and "ho "ithin the short space of three years see0s to return, is
in a class by itself.
/his petition for mandamus and prohibition as0s the Courts to order the respondents to
issue travel documents to Mr. Marcos and the immediate members of his family and to
en;oin the implementation of the President!s decision to bar their return to the
Philippines.
The Issue
/h issue is basically one of po"er= "hether or not, in the e*ercise of the po"ers
granted by the Constitution, the President may prohibit the Marcoses from returning to
the Philippines.
According to the petitioners, the resolution of the case "ould depend on the resolution
of the follo"ing issues=
1
$. >oes the President have the po"er to bar the return of former President Marcos and
family to the Philippines?
a. +s this a political -uestion?
9. Assuming that the President has the po"er to bar former President Marcos and his
family from returning to the Philippines, in the interest of )national security, public
safety or public health
a. .as the President made a finding that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public safety
or public health?
b. Assuming that she has made that finding
@$A .ave the re-uirements of due process been complied "ith in ma0ing such finding?
@9A .as there been prior notice to petitioners?
@5A .as there been a hearing?
@BA Assuming that notice and hearing may be dispensed "ith, has the President!s
decision, including the grounds upon "hich it "as based, been made 0no"n to
petitioners so that they may controvert the same?
c. +s 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 -uestion?
d. Assuming that the Court may in-uire as to "hether 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?
5. .ave the respondents, therefore, in implementing the President!s decision to bar the
return of former President Marcos and his family, acted and "ould be acting "ithout
;urisdiction, or in e*cess of ;urisdiction, or "ith grave abuse of discretion, in performing
any act "hich "ould effectively bar the return of former President Marcos and his
family to the Philippines? 3Memorandum for Petitioners, pp. C(1D Rollo, pp. 95B(95'.$
/he case for petitioners is founded on the assertion that the right of the Marcoses to
return to the Philippines is guaranteed under the follo"ing provisions of the Bill of
Rights, to "it=
Eection $. No person shall be deprived of life, liberty, or property "ithout due process
of la", nor shall any person be denied the e-ual protection of the la"s.
*** *** ***
Eection '. /he liberty of abode and of changing the same "ithin the limits prescribed
by la" shall not be impaired e*cept upon la"ful order of the court. Neither shall the
right to travel be impaired e*cept in the interest of national security, public safety, or
public health, as may be provided by la".
/he petitioners contend that the President is "ithout po"er to impair the liberty of
abode of the Marcoses because only a court may do so )"ithin the limits prescribed by
la".) Nor may the President impair their right to travel because no la" has authori,ed
her to do so. /hey advance the vie" that before the right to travel may be impaired by
any authority or agency of the government, there must be legislation to that effect.
/he petitioners further assert that under international la", the right of Mr. Marcos and
his family to return to the Philippines is guaranteed.
/he Fniversal >eclaration of .uman Rights provides=
Article $5. @$A Everyone has the right to freedom of movement and residence "ithin the
borders of each state.
@9A Everyone has the right to leave any country, including his o"n, and to return to his
country.
2i0e"ise, the +nternational Covenant on Civil and Political Rights, "hich had been
ratified by the Philippines, provides=
Article $9
$A Everyone la"fully "ithin the territory of a Etate shall, "ithin that territory, have the
right to liberty of movement and freedom to choose his residence.
9A Everyone shall be free to leave any country, including his o"n.
5A /he above(mentioned rights shall not be sub;ect to any restrictions e*cept those
"hich are provided by la", are necessary to protect national security, public order
@order publicA, public health or morals or the rights and freedoms of others, and are
consistent "ith the other rights recogni,ed in the present Covenant.
BA No one shall be arbitrarily deprived of the right to enter his o"n country.
8n the other hand, the respondents! principal argument is that the issue in this case
involves a political -uestion "hich is non(;usticiable. According to the Eolicitor :eneral=
2
As petitioners couch it, the -uestion involved is simply "hether or not petitioners
#erdinand E. Marcos and his family have the right to travel and liberty of abode.
Petitioners invo0e these constitutional rights in vacuo "ithout reference to attendant
circumstances.
Respondents submit that in its proper formulation, the issue is "hether or not
petitioners #erdinand 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 "ill endanger national security and public safety.
+t may be conceded that as formulated by petitioners, the -uestion is not a political
-uestion as it involves merely a determination of "hat the la" provides on the matter
and application thereof to petitioners #erdinand E. Marcos and family. But "hen the
-uestion is "hether the t"o rights claimed by petitioners #erdinand E. Marcos and
family impinge on or collide "ith the more primordial and transcendental right of the
Etate to security and safety of its nationals, the -uestion becomes political and this
.onorable Court can not consider it.
/here are thus gradations to the -uestion, to "it=
>o petitioners #erdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? /his is clearly a ;usticiable -uestion
"hich this .onorable Court can decide.
>o petitioners #erdinand E. Marcos and family have their right to return to the
Philippines and reestablish their residence here even if their return and residence here
"ill endanger national security and public safety? this is still a ;usticiable -uestion
"hich this .onorable Court can decide.
+s there danger to national security and public safety if petitioners #erdinand E. Marcos
and family shall return to the Philippines and establish their residence here? /his is
no" a political -uestion "hich this .onorable Court can not decide for it falls "ithin the
e*clusive authority and competence of the President of the Philippines. 3Memorandum
for Respondents, pp. %($$D Rollo, pp. 9%1(9%%.7
Respondents argue for the primacy of the right of the Etate to national security over
individual rights. +n support thereof, they cite Article ++ of the Constitution, to "it=
Eection B. /he prime duty of the :overnment is to serve and protect the people. /he
:overnment may call upon the people to defend the Etate and, in the fulfillment
thereof, all citi,ens may be re-uired, under conditions provided by la", to render
personal, military, or civil service.
Eection C. /he maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general "elfare are essential for the en;oyment by
all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from
returning to the Philippines for reasons of national security and public safety has
international precedents. Rafael /ru;illo of the >ominican Republic, Anastacio Eomo,a
4r. of Nicaragua, 4orge Fbico of :uatemala, #ulgencio batista of Cuba, Ging #arou0 of
Egypt, Ma*imiliano .ernande, Martine, of El Ealvador, and Marcos Pere, 4imene, of
Hene,uela "ere among the deposed dictators "hose return to their homelands "as
prevented by their governments. 3Eee Etatement of #oreign Affairs Eecretary Raul E.
Manglapus, -uoted in Memorandum for Respondents, pp. 9'(59D Rollo, pp. 5$B(5$%.7
/he parties are in agreement that the underlying issue is one of the scope of
presidential po"er and its limits. e, ho"ever, vie" this issue in a different light.
Although "e give due "eight to the parties! formulation of the issues, "e are not bound
by its narro" confines in arriving at a solution to the controversy.
At the outset, "e must state that it "ould not do to vie" the case "ithin the confines of
the right to travel and the import of the decisions of the F.E. Eupreme Court in the
leading cases of Kent v. Dulles 35C1 F.E. $$', 1& ECt $$$5, 9 2 Ed. 9d $96B7 and Haig
v. Agee 3BC5 F.E. 9&6, $6$ ECt 91'', '% 2 Ed. 9d 'B6A "hich affirmed the right to
travel and recogni,ed e*ceptions to the e*ercise thereof, respectively.
+t must be emphasi,ed that the individual right involved is not the right to travel from
the Philippines to other countries or "ithin the Philippines. /hese are "hat the right to
travel "ould normally connote. Essentially, the right involved is the right to return to
one!s country, a totally distinct right under international la", independent from although
related to the right to travel. /hus, the Fniversal >eclaration of .umans Rights and the
+nternational Covenant on Civil and Political Rights treat the right to freedom of
movement and abode "ithin the territory of a state, the right to leave a country, and the
right to enter one!s country as separate and distinct rights. /he >eclaration spea0s of
the )right to freedom of movement and residence "ithin the borders of each state) 3Art.
$5@lA7 separately from the )right to leave any country, including his o"n, and to return to
his country.) 3Art. $5@9A.7 8n the other hand, the Covenant guarantees the )right to
liberty of movement and freedom to choose his residence) 3Art. $9@lA7 and the right to
)be free to leave any country, including his o"n.) 3Art. $9@9A7 "hich rights may be
restricted by such la"s as )are necessary to protect national security, public order,
public health or morals or enter ---s o"n country) of "hich one cannot be )arbitrarily
deprived.) 3Art. $9@BA.7 +t "ould therefore be inappropriate to construe the limitations to
the right to return to one!s country in the same conte*t as those pertaining to the liberty
of abode and the right to travel.
/he right to return to one!s country is not among the rights specifically guaranteed in
the Bill of Rights, "hich treats only of the liberty of abode and the right to travel, but it
is our "ell(considered vie" that the right to return may be considered, as a generally
accepted principle of international la" and, under our Constitution, is part of the la" of
the land 3Art. ++, Eec. 9 of the Constitution.7 .o"ever, it is distinct and separate from the
right to travel and en;oys a different protection under the +nternational Covenant of Civil
and Political Rights, i.e., against being )arbitrarily deprived) thereof 3Art. $9 @BA.7
3
/hus, the rulings in the cases Kent and Haig "hich refer to the issuance of passports
for the purpose of effectively e*ercising the right to travel are not determinative of this
case and are only tangentially material insofar as they relate to a conflict bet"een
e*ecutive action and the e*ercise of a protected right. /he issue before the Court is
novel and "ithout precedent in Philippine, and even in American ;urisprudence.
Conse-uently, resolution by the Court of the "ell(debated issue of "hether 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 "ill have to be a"aited.
.aving clarified the substance of the legal issue, "e find no" a need to e*plain the
methodology for its resolution. 8ur resolution of the issue "ill involve a t"o(tiered
approach. e shall first resolve "hether or not the President has the po"er under the
Constitution, to bar the Marcoses from returning to the Philippines. /hen, "e shall
determine, pursuant to the e*press po"er of the Court under the Constitution in Article
H+++, Eection $, "hether or not the President acted arbitrarily or "ith grave abuse of
discretion amounting to lac0 or e*cess of ;urisdiction "hen she determined that the
return of the Marcose!s to the Philippines poses a serious threat to national interest
and "elfare and decided to bar their return.
Executive Power
/he $%&1 Constitution has fully restored the separation of po"ers of the three great
branches of government. /o recall the "ords of 4ustice 2aurel in Angara v. Electoral
Commission 3'5 Phil. $5% @$%5'A7, )the Constitution has bloc0ed but "ith deft stro0es
and in bold lines, allotment of po"er to the e*ecutive, the legislative and the ;udicial
departments of the government.) 3At $C1.$ /hus, the $%&1 Constitution e*plicitly
provides that )3the legislative po"er shall be vested in the Congress of the Philippines)
Art H+, Eec. $$, )3t7he e*ecutive po"er shall bevested in the President of the
Philippines) 3Art. H++, Eec. $$, and )3te ;udicial po"er shall be vested in one Eupreme
Court and in such lo"er courts as may be established by la") 3Art. H+++, Eec. $.7 /hese
provisions not only establish a separation of po"ers by actual division 3Angara v.
Electoral Commission, supra7 but also confer plenary legislative, e*ecutive and ;udicial
po"ers sub;ect only to limitations provided in the Constitution. #or as the Eupreme
Court in Ocampo v. Caangis 3$C Phil. '9' @$%$6A7 pointed out )a grant of the
legislative po"er means a grant of all legislative po"erD and a grant of the ;udicial
po"er means a grant of all the ;udicial po"er "hich may be e*ercised under the
government.) 3At '5$('59.$ +f this can be said of the legislative po"er "hich is
e*ercised by t"o chambers "ith a combined membership of more than t"o hundred
members and of the ;udicial po"er "hich is vested in a hierarchy of courts, it can
e-ually be said of the e*ecutive po"er "hich is vested in one official the President.
As stated above, the Constitution provides that )3t7he e*ecutive po"er shall be vested
in the President of the Philippines.) 3Art. H++, Eec. $7. .o"ever, it does not define "hat
is meant by e*ecutive po"er) although in the same article it touches on the e*ercise of
certain po"ers by the President, i.e., the po"er of control over all e*ecutive
departments, bureaus and offices, the po"er to e*ecute the la"s, the appointing
po"er, the po"ers under the commander(in(chief clause, the po"er to grant reprieves,
commutations and pardons, the po"er to grant amnesty "ith the concurrence of
Congress, the po"er to contract or guarantee foreign loans, the po"er to enter into
treaties or international agreements, the po"er to submit the budget to Congress, and
the po"er to address Congress 3Art. H++, Eec. $B(957.
/he inevitable -uestion then arises= by enumerating certain po"ers of the President
did the framers of the Constitution intend that the President shall e*ercise those
specific po"ers and no other? Are these se enumerated po"ers the breadth and scope
of )e*ecutive po"er)? Petitioners advance the vie" that the President!s po"ers are
limited to those specifically enumerated in the $%&1 Constitution. /hus, they assert=
)/he President has enumerated po"ers, and "hat is not enumerated is impliedly
denied to her. Inclusion unius est exclusio alterius3Memorandum for Petitioners, p. B(
Rollo p. 955.$ /his argument brings to mind the institution of the F.E. Presidency after
"hich ours is legally patterned.II
Cor"in, in his monumental volume on the President of the Fnited Etates grappled "ith
the same problem. .e said=
Article ++ is the most loosely dra"n chapter of the Constitution. /o those "ho thin0 that
a constitution ought to settle everything beforehand it should be a nightmareD by the
same to0en, to those "ho thin0 that constitution ma0ers ought to leave considerable
lee"ay for the future play of political forces, it should be a vision reali,ed.
e encounter this characteristic of Article $$ in its opening "ords= )/he e*ecutive
po"er shall be vested in a President of the Fnited Etates of America.) . . .. 3The
President! O""ice and Powers# $%&%$'(%# pp. )*+.7
Revie"ing ho" the po"ers of the F.E. President "ere e*ercised by the different
persons "ho held the office from ashington to the early $%66!s, and the s"ing from
the presidency by commission to 2incoln!s dictatorship, he concluded that )"hat the
presidency is at any particular moment depends in important measure on "ho is
President.) 3At 56.7
/his vie" is shared by Echlesinger "ho "rote in The Imperial Presidenc,=
#or the American Presidency "as a peculiarly personal institution. it remained of
course, an agency of government sub;ect 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, e*pectations,
+diosyncrasies, compulsions, phobias recast the hite.ouse and pervaded the entire
government. /he e*ecutive branch, said Clar0 Clifford, "as a chameleon, ta0ing its
color from the character and personality of the President. /he thrust of the office, its
impact on the constitutional order, therefore altered from President to President. Above
all, the "ay 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
4
an accounting to the nation and posterity determined "hether he strengthened or
"ea0ened the constitutional order. 3At 9$9( 9$5.7
e do not say that the presidency is "hat Mrs. A-uino says it is or "hat she does but,
rather, that the consideration of tradition and the development of presidential po"er
under the different constitutions are essential for a complete understanding of the
e*tent of and limitations to the President!s po"ers under the $%&1 Constitution. /he
$%5C Constitution created a strong President "ith e*plicitly broader po"ers than the
F.E. President. /he $%15 Constitution attempted to modify the system of government
into the parliamentary type, "ith the President as a mere figurehead, but through
numerous amendments, the President became even more po"erful, to the point that
he "as also the de facto 2egislature. /he $%&1 Constitution, ho"ever, brought bac0
the presidential system of government and restored the separation of legislative,
e*ecutive and ;udicial po"ers by their actual distribution among three distinct branches
of government "ith provision for chec0s and balances.
+t "ould not be accurate, ho"ever, to state that )e*ecutive po"er) is the po"er to
enforce the la"s, for the President is head of state as "ell as head of government and
"hatever po"ers inhere in such positions pertain to the office unless the Constitution
itself "ithholds it. #urthermore, the Constitution itself provides that the e*ecution of the
la"s is only one of the po"ers of the President. +t also grants the President other
po"ers that do not involve the e*ecution of any provision of la", e.g., his po"er over
the country!s foreign relations.
8n these premises, "e hold the vie" that although the $%&1 Constitution imposes
limitations on the e*ercise of speci"ic po"ers of the President, it maintains intact "hat
is traditionally considered as "ithin the scope of )e*ecutive po"er.) Corollarily, the
po"ers of the President cannot be said to be limited only to the specific po"ers
enumerated in the Constitution. +n other "ords, e*ecutive po"er is more than the sum
of specific po"ers so enumerated,
+t has been advanced that "hatever po"er inherent in the government that is neither
legislative nor ;udicial has to be e*ecutive. /hus, in the landmar0 decision of -pringer
v. .overnment o" the Philippine Islands, 911 F.E. $&% @$%9&A, on the issue of "ho
bet"een the :overnor(:eneral of the Philippines and the 2egislature may vote the
shares of stoc0 held by the :overnment to elect directors in the National Coal
Company and the Philippine National Ban0, the F.E. Eupreme Court, in upholding the
po"er of the :overnor(:eneral to do so, said=
....ere the members of the legislature "ho constitute a ma;ority of the )board) and
)committee) respectively, are not charged "ith the performance of any legislative
functions or "ith the doing of anything "hich is in aid of performance of any such
functions by the legislature. Putting aside for the moment the -uestion "hether the
duties devolved upon these members are vested by the 8rganic Act in the :overnor(
:eneral, it is clear that they are not legislative in character, and still more clear that
they are not ;udicial. The "act that the, do not "all within the authorit, o" either o" these
two constitutes logical ground "or concluding that the, do "all within that o" the
remaining one among which the powers o" government are divided ....3At 969(965D
Emphasis supplied.7
e are not unmindful of 4ustice .olmes! strong dissent. But in his enduring "ords of
dissent "e find reinforcement for the vie" that it "ould indeed be a folly to construe the
po"ers of a branch of government to embrace only "hat are specifically mentioned in
the Constitution=
/he great ordinances of the Constitution do not establish and divide fields of blac0 and
"hite. Even the more specific of them are found to terminate in a penumbra shading
gradually from one e*treme to the other. ....
*** *** ***
+t does not seem to need argument to sho" that ho"ever "e may disguise it by veiling
"ords "e do not and cannot carry out the distinction bet"een legislative and e*ecutive
action "ith mathematical precision and divide the branches into "atertight
compartments, "ere it ever so desirable to do so, "hich + am far from believing that it
is, or that the Constitution re-uires. 3At 9$6( 9$$.7
The Power Involved
/he Constitution declares among the guiding principles that )3t7he prime duty of
the:overnment is to serve and protect the people) and that )3t7he maintenance of
peace and order,the protection of life, liberty, and property, and the promotion of the
general "elfare are essential for the en;oyment by all the people of the blessings of
democracy.) 3Art. ++, Eecs. B and C.7
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 "elfare are
essentially ideals to guide governmental action. But such does not mean that they are
empty "ords. /hus, in the e*ercise of presidential functions, in dra"ing a plan of
government, and in directing implementing action for these plans, or from another point
of vie", in ma0ing any decision as President of the Republic, the President has to
consider these principles, among other things, and adhere to them.
#aced "ith the problem of "hether or not the time is right to allo" 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 s"orn
to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their "elfare and advance the national
interest. +t must be borne in mind that the Constitution, aside from being an allocation
of po"er is also a social contract "hereby the people have surrendered their sovereign
po"ers to the Etate for the common good. .ence, lest the officers of the :overnment
e*ercising the po"ers delegated by the people forget and the servants of the people
become rulers, the Constitution reminds everyone that )3s7overeignty resides in the
people and all government authority emanates from them.) 3Art. ++, Eec. $.7
5
/he resolution of the problem is made difficult because the persons "ho see0 to return
to the country are the deposed dictator and his family at "hose door the travails of the
country are laid and from "hom billions of dollars believed to be ill(gotten "ealth are
sought to be recovered. /he constitutional guarantees they invo0e are neither absolute
nor infle*ible. #or the e*ercise of even the preferred freedoms of speech and
ofe*pression, although couched in absolute terms, admits of limits and must be
ad;usted to the re-uirements of e-ually important public interests 3Jaldivar v.
Eandiganbayan, :.R. Nos. 1%'%6(161, 8ctober 1, $%&$.7
/o the President, the problem is one of balancing the general "elfare and the common
good against the e*ercise of rights of certain individuals. /he po"er involved is the
President!s residual po"er to protect the general "elfare of the people. +t is founded on
the duty of the President, as ste"ard of the people. /o paraphrase /heodore
Roosevelt, it is not only the po"er of the President but also his duty to do anything not
forbidden by the Constitution or the la"s that the needs of the nation demand 3Eee
Cor"in, supra, at $C57. +t is a po"er borne by the President!s duty to preserve and
defend the Constitution. +t also may be vie"ed as a po"er implicit in the President!s
duty to ta0e care that the la"s are faithfully e*ecuted 3see .yman, The American
President, "here the author advances the vie" that an allo"ance of discretionary
po"er is unavoidable in any government and is best lodged in the President7.
More particularly, this case calls for the e*ercise of the President!s po"ers as protector
of the peace. Rossiter The American Presidenc,7./he po"er of the President to 0eep
the peace is not limited merely to e*ercising the commander(in(chief po"ers in times
of emergency or to leading the Etate against e*ternal and internal threats to its
e*istence. /he President is not only clothed "ith e*traordinary po"ers in times of
emergency, but is also tas0ed "ith attending to the day(to(day problems of maintaining
peace and order and ensuring domestic tran-uility in times "hen no foreign foe
appears on the hori,on. ide discretion, "ithin the bounds of la", in fulfilling
presidential duties in times of peace is not in any "ay diminished by the relative "ant
of an emergency specified in the commander(in(chief provision. #or in ma0ing the
President commander(in(chief the enumeration of po"ers that follo" cannot be said to
e*clude the President!s e*ercising as Commander(in( Chief po"ers short of the calling
of the armed forces, or suspending the privilege of the "rit of haeas corpus or
declaring martial la", in order to 0eep the peace, and maintain public order and
security.
/hat the President has the po"er under the Constitution to bar the Marcose!s from
returning has been recogni,ed by memembers of the 2egislature, and is manifested by
the Resolution proposed in the .ouse of Representatives and signed by $65 of its
members urging the President to allo" 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 la"s.) 3.ouse Resolution No. $5B9, Rollo, p. 59$.$ /he
Resolution does not -uestion the President!s po"er to bar the Marcoses from returning
to the Philippines, rather, it appeals to the President!s sense of compassion to allo" a
man to come home to die in his country.
hat "e are saying in effect is that the re-uest or demand of the Marcoses to be
allo"ed 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, sub;ect to
certain e*ceptions, or of case la" "hich clearly never contemplated situations even
remotely similar to the present one. +t must be treated as a matter that is appropriately
addressed to those residual unstated po"ers of the President "hich are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect
general "elfare. +n that conte*t, such re-uest or demand should submit to the e*ercise
of a broader discretion on the part of the President to determine "hether it must be
granted or denied.
The Extent o" /eview
Fnder the Constitution, ;udicial po"er includes the duty to determine "hether or not
there has been a grave abuse of discretion amounting to lac0 or e*cess of ;urisdiction
on the part of any branch or instrumentality of the :overnment.) 3Art. H+++, Eec. $7
:iven this "ording, "e cannot agree "ith the Eolicitor :eneral that the issue
constitutes a political -uestion "hich is beyond the ;urisdiction of the Court to decide.
/he present Constitution limits resort to the political -uestion doctrine and broadens
the scope of ;udicial in-uiry into areas "hich the Court, under previous constitutions,
"ould have normally left to the political departments to decide. But nonetheless there
remain issues beyond the Court!s ;urisdiction the determination of "hich is e*clusively
for the President, for Congress or for the people themselves through a plebiscite or
referendum. e cannot, for e*ample, -uestion the President!s recognition of a foreign
government, no matter ho" premature or improvident such action may appear. e
cannot set aside a presidential pardon though it may appear to us that the beneficiary
is totally undeserving of the grant. Nor can "e amend the Constitution under the guise
of resolving a dispute brought before us because the po"er is reserved to the people.
/here is nothing in the case before us that precludes our determination thereof on the
political -uestion doctrine. /he deliberations of the Constitutional Commission cited by
petitioners sho" that the framers intended to "iden the scope of ;udicial revie" but
they did not intend courts of ;ustice to settle all actual controversies before them. hen
political -uestions are involved, the Constitution limits the determination to "hether or
not there has been a grave abuse of discretion amounting to lac0 or e*cess of
;urisdiction on the part of the official "hose action is being -uestioned. +f grave abuse
is not established, the Court "ill not substitute its ;udgment for that of the official
concerned and decide a matter "hich by its nature or by la" is for the latter alone to
decide. +n this light, it "ould appear clear that the second paragraph of Article H+++,
Eection $ of the Constitution, defining );udicial po"er,) "hich specifically empo"ers the
courts to determine "hether 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 la" the ruling in 0ansang v. .arcia 3:.R. No. 2(55%'B, >ecember $$,
$%1$, B9 ECRA BB&$ that=7
Article H++ of the 3$%5C7 Constitution vests in the E*ecutive the po"er to suspend the
privilege of the "rit of habeas corpus under specified conditions. Pursuant to the
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principle of separation of po"ers underlying our system of government, the E*ecutive
is supreme "ithin his o"n sphere. .o"ever, the separation of po"ers, under the
Constitution, is not absolute. hat is more, it goes hand in hand "ith the system of
chec0s and balances, under "hich the E*ecutive is supreme, as regards the
suspension of the privilege, but only if and "hen he acts "ithin the sphere alloted to
him by the Basic 2a", and the authority to determine "hether or not he has so acted is
vested in the 4udicial >epartment, "hich, in this respect, is, in turn, constitutionally
supreme. +n the e*ercise of such authority, the function of the Court is merely to chec0
< not to supplant the E*ecutive, or to ascertain merely "hether he has gone beyond
the constitutional limits of his ;urisdiction, not to e*ercise the po"er vested in him or to
determine the "isdom of his act 3At B1%(B&6.7
Accordingly, the -uestion for the Court to determine is "hether or not there e*ist
factual bases for the President to conclude that it "as in the national interest to bar the
return of the Marcoses to the Philippines. +f such postulates do e*ist, 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.
e 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 Etaff of the Armed
#orces of the Philippines and the National Eecurity Adviser, "herein petitioners and
respondents "ere represented, there e*ist factual bases for the President!s decision..
/he Court cannot close its eyes to present realities and pretend that the country is not
besieged from "ithin by a "ell(organi,ed communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab po"er, urban terrorism, the
murder "ith impunity of military men, police officers and civilian officials, to mention
only a fe". /he documented history of the efforts of the Marcose!s and their follo"ers
to destabili,e the country, as earlier narrated in this ponencia bolsters the conclusion
that the return of the Marcoses at this time "ould only e*acerbate and intensify the
violence directed against the Etate and instigate more chaos.
As divergent and discordant forces, the enemies of the Etate may be contained. /he
military establishment has given assurances that it could handle the threats posed by
particular groups. But it is the catal,tic e""ect of the return of the Marcoses that may
prove to be the proverbial final stra" that "ould brea0 the camel!s bac0. ith these
before her, the President cannot be said to have acted arbitrarily and capriciously and
"himsically in determining that the return of the Marcoses poses a serious threat to the
national interest and "elfare and in prohibiting their return.
+t "ill not do to argue that if the return of the Marcoses to the Philippines "ill cause the
escalation of violence against the Etate, that "ould be the time for the President to
step in and e*ercise the commander(in(chief po"ers granted her by the Constitution to
suppress or stamp out such violence. /he Etate, acting through the :overnment, is not
precluded from ta0ing pre( emptive action against threats to its e*istence 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. /he preservation of the Etate the
fruition of the people!s sovereignty is an obligation in the highest order. /he President,
s"orn to preserve and defend the Constitution and to see the faithful e*ecution the
la"s, cannot shir0 from that responsibility.
e cannot also lose sight of the fact that the country is only no" 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 "hom are still here in the
Philippines in a position to destabili,e the country, "hile the :overnment has barely
scratched the surface, so to spea0, in its efforts to recover the enormous "ealth
stashed a"ay by the Marcoses in foreign ;urisdictions. /hen, e cannot ignore the
continually increasing burden imposed on the economy by the e*cessive foreign
borro"ing during the Marcos regime, "hich stifles and stagnates development and is
one of the root causes of "idespread poverty and all its attendant ills. /he resulting
precarious state of our economy is of common 0no"ledge and is easily "ithin the
ambit of ;udicial notice.
/he President has determined that the destabili,ation caused by the return of the
Marcoses "ould "ipe a"ay the gains achieved during the past fe" years and lead to
total economic collapse. :iven "hat is "ithin our individual and common 0no"ledge of
the state of the economy, "e cannot argue "ith that determination.
.ERE#8RE, and it being our "ell(considered opinion that the President did not act
arbitrarily or "ith 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 "elfare and in prohibiting their return to
the Philippines, the instant petition is hereby >+EM+EEE>.
E8 8R>ERE>.
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