Republic of the Philippines of the military establishment that thraetened civilian supremacy over military and
SUPREME COURT brought to the fore the realization that civilian government could be at the mercy
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 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.
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.

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.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS.
JR., IRENE M. ARANETA, IMEE M. 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.
RESOLUTION
EN BANC:
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 And neither can we subscribe to the view that a recognition of the President's
whom executive power is vested, has unstated residual powers which are implied implied or residual powers is tantamount to setting the stage for another
from the grant of executive power and which are necessary for her to comply with dictatorship. Despite petitioners' strained analogy, the residual powers of the
her duties under the Constitution. The powers of the President are not limited to President under the Constitution should not be confused with the power of the
what are expressly enumerated in the article on the Executive Department and in President under the 1973 Constitution to legislate pursuant to Amendment No. 6
scattered provisions of the Constitution. This is so, notwithstanding the avowed which provides:
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. Whenever in the judgment of the President (Prime Minister),
Marcos, for the result was a limitation of specific power of the President, there exists a grave emergency or a threat or imminence
particularly those relating to the commander-in-chief clause, but not a diminution thereof, or whenever the interim Batasang Pambansa or the
of the general grant of executive power. regular National Assembly fails or is unable to act adequately
on any matter for any reason that in his judgment requires
That the President has powers other than those expressly stated in the immediate action, he may, in order to meet the exigency, issue
Constitution is nothing new. This is recognized under the U.S. Constitution from the necessary decrees, orders, or letters of instruction, which
which we have patterned the distribution of governmental powers among three shall form part of the law of the land,
(3) separate branches.
There is no similarity between the residual powers of the President under the
Article II, [section] 1, provides that "The Executive Power shall 1987 Constitution and the power of the President under the 1973 Constitution
be vested in a President of the United States of America." In pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an express
Alexander Hamilton's widely accepted view, this statement grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the
cannot be read as mere shorthand for the specific executive President of the specific power of legislation.
authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of 4. Among the duties of the President under the Constitution, in compliance with
article II, section 1, and the conditional language of article I, his (or her) oath of office, is to protect and promote the interest and welfare of the
[section] 1: "All legislative Powers herein granted shall be people. Her decision to bar the return of the Marcoses and subsequently, the
vested in a Congress of the United States . . ." Hamilton remains of Mr. Marcos at the present time and under present circumstances is in
submitted that "[t]he [article III enumeration [in sections 2 and compliance with this bounden duty. In the absence of a clear showing that she
31 ought therefore to be considered, as intended merely to had acted with arbitrariness or with grave abuse of discretion in arriving at this
specify the principal articles implied in the definition of execution decision, the Court will not enjoin the implementation of this decision.
power; leaving the rest to flow from the general grant of that
power, interpreted in confomity with other parts of the
Constitution... ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for
lack of merit."
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).]