Marcos vs.

Manglapuz

In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition, after finding that
the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos
and his family at the present time and under present circumstances pose a threat to national interest and welfare and in
prohibiting their return to the Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:

In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately
conflicting ways, and for the tranquility of the state and order of society, the remains of Ferdinand E. Marcos
will not be allowed to be brought to our country until such time as the government, be it under this
administration or the succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p,
443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major arguments:

1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the inherent right of
citizens to return to their country of birth but also the protection of the Constitution and all of the rights guaranteed to Filipinos
under the Constitution;

2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that the Court
reconsider its decision, order respondents to issue the necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand
R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and
enjoin respondents from implementing President Aquino's decision to bar the return of the remains of Mr. Marcos, and the
other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor General argued that the motion for reconsideration is moot and
academic as to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under
the label 'right to return', including the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize the
country, a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he
prays that the Motion for Reconsideration be denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner herein, to show
that there are compelling reasons to reconsider the decision of the Court.

2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the view that no
compelling reasons have been established by petitioners to warrant a reconsideration of the Court's decision.

The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual scenario under which
the Court's decision was rendered. The threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. On the contrary, instead of erasing fears as to the destabilization
that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when she
called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines,
and declared that the matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine Star, October 4,
1989.]

3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested, has unstated
residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of specific power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive power.

That the President has powers other than those expressly stated in the Constitution is nothing new. This is recognized under the
U.S. Constitution from which we have patterned the distribution of governmental powers among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the United States
of America." In Alexander Hamilton's widely accepted view, this statement cannot be read as mere
shorthand for the specific executive authorizations that follow it in [sections] 2 and 3. Hamilton stressed the
difference between the sweeping language of article II, section 1, and the conditional language of article I,
[section] 1: "All legislative Powers herein granted shall be vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III enumeration [in sections 2 and 31 ought therefore to be
considered, as intended merely to specify the principal articles implied in the definition of execution power;
leaving the rest to flow from the general grant of that power, interpreted in confomity with other parts of
the Constitution...

In Myers v. United States, the Supreme Court — accepted Hamilton's proposition, concluding that the
federal executive, unlike the Congress, could exercise power from sources not enumerated, so long as not
forbidden by the constitutional text: the executive power was given in general terms, strengthened by
specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear that the constitutional
concept of inherent power is not a synonym for power without limit; rather, the concept suggests only that
not all powers granted in the Constitution are themselves exhausted by internal enumeration, so that,
within a sphere properly regarded as one of "executive' power, authority is implied unless there or
elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the President's implied or residual powers is tantamount to
setting the stage for another dictatorship. Despite petitioners' strained analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President under the 1973 Constitution to legislate pursuant to
Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is
unable to act adequately on any matter for any reason that in his judgment requires immediate action, he
may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall
form part of the law of the land,

There is no similarity between the residual powers of the President under the 1987 Constitution and the power of the President
under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It
is not implied. Then, Amendment No. 6 refers to a grant to the President of the specific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and
promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains
of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. In the absence of a
clear showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will
not enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."
Asylum Case Peru vs. Colombia

Overview:

Colombia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Colombia entitled to make a
unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru and was Peru was under
a legal obligation to provide safe passage for the Peruvian to leave Peru?

Facts of the Case:

Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of military rebellion” which took place
on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian
Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on
Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had
qualified Torre as a political refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933 (note the
term refugee is not the same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and refused
to grant safe passage.

Questions before the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under
treaty law and international law?

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana Convention)
when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

The Court’s Decision:

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under
treaty law and international law?

1. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to
make a provisional qualification of the offence (for example, as a political offence) and the territorial State has the right to give
consent to this qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to
qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a
decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo
Convention of 1933), other principles of international law or by way of regional or local custom.

2. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants
asylum under the Havana Convention or relevant principles of international law (p. 12, 13). The Montevideo Convention of
1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was
not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of ratifications the
provisions of the latter Convention cannot be said to reflect customary international law (p. 15).

3. Colombia also argued that regional or local customs support the qualification. The court held that the burden of proof on the
existence of an alleged customary law rests with the party making the allegation:

“The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become
binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty
incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law(text in brackets added).”

4. The court held that Colombia did not establish the existence of a regional custom because it failed to prove consistent and
uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State practice did not allow for
the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal impact of fluctuations of State
practice). The court also reiterated that the fact that a particular State practice was followed because of political expediency and
not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to
the formation of a customary law (see North Sea Continental Shelf Cases and Lotus Case for more on opinio juris):

“[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted
and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or … that it was,
apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by
the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the
knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of
diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much
influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant
and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the
offence.”

5. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on Peru,
because Peru “far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the
Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence [as
“political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson on persistent objectors. Similarly in
the North Sea Continental Shelf Cases the court held ‘in any event the . . . rule would appear to be inapplicable as against
Norway in as much as she had always opposed any attempt to apply it to the Norwegian coast’.)

6. The court concluded that Colombia, as the State granting asylum, is not competent to qualify the offence by a unilateral and
definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?

7. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or
customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial state
(Peru) to grant safe passage only after it requests the asylum granting State (Colombia) to send the person granted asylum
outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary,
it contested the legality of asylum granted to him and refused to grant safe conduct.

8. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have requested
and been granted safe passage for asylum seekers, before the territorial State could request for his departure. Once more, the
court held that these practices were a result of a need for expediency and other practice considerations over an existence of a
belief that the act amounts to a legal obligation (see paragraph 4 above).

“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe
conduct without awaiting a request from the territorial state for the departure of the refugee…but this practice does not and
cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it.”

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued maintenance
of asylum a violation of the treaty?

9. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to persons accused or
condemned for common crimes… (such persons) shall be surrendered upon request of the local government.”
10. In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would constitute
a common crime, while a political offence would not).The accusations that are relevant are those made before the granting of
asylum. Torre’s accusation related to a military rebellion, which the court concluded was not a common crime and as such the
granting of asylum complied with Article 1 of the Convention.

11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in legations, warships, military
camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by
the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions: First:
Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has
sought asylum to ensure in some other way his safety.”

12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of “an imminent or
persistence of a danger for the person of the refugee”. The court held that the facts of the case, including the 3 months that
passed between the rebellion and the time when asylum was sought, did not establish the urgency criteria in this case (pp. 20
-23). The court held:

“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include the danger
of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country… In
principle, asylum cannot be opposed to the operation of justice.”

13. In other words, Torre was accused of a crime but he could not be tried in a court because Colombia granted him asylum. The
court held that “protection from the operation of regular legal proceedings” was not justified under diplomatic asylum.

14. The court held:

“In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic asylum involves a
derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from
territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.”

15. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the guise of
justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted
by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly
extra-legal character which a Government might take or attempt to take against its political opponents… On the other hand, the
safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against
the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the
application of the laws of the country whereas it is his duty to respect them… Such a conception, moreover, would come into
conflict with one of the most firmly established traditions of Latin-America, namely, non-intervention [for example, by Colombia
into the internal affairs of another State like Peru]….

16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and disorderly action of
irresponsible sections of the population.” (for example during a mob attack where the territorial State is unable to protect the
offender). Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima.

17. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2(2) of the
Havana Convention (p. 25).

“The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a refugee to an
embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of protection, the asylum is
granted as long as the continued presence of the refugee in the embassy prolongs this protection.”

NB: The court also discussed the difference between extradition and granting of asylum – you can read more on this in pp. 12 –
13 of the judgment. The discussions on the admissibility of the counter claim of Peru are set out in pp. 18 – 19.