sec 1 marcos v maglapus

8/4/2019 Sec 1 Marcos v Maglapus

http://slidepdf.com/reader/full/sec-1-marcos-v-maglapus 1/12

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),represented by its President, CONRADO F. ESTRELLA, petitioners,vs.HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAMDEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary ofForeign 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 issuesare involved, the Court's decision in this case would undeniably have a profound effect on thepolitical, 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 declaredPresident of the Republic under a revolutionary government. Her ascension to and consilidation ofpower 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 thesupport of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiouslyreturn from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [ManilaBulletin, January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble evenfrom afar and to the fanaticism and blind loyalty of their followers in the country. The ratification ofthe 1987 Constitution enshrined the victory of "people power" and also clearly reinforced theconstitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody challengesto the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in theFebruary 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 conveyedwas the same— a split in the ranks of the military establishment that thraetened civilian supremacyover military and brought to the fore the realization that civilian government could be at the mercy ofa fractious military.

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



Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder ofthe nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts ateconomic recovery, three years after Mrs. Aquino assumed office, have yet to show concrete resultsin alleviating the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoseshas 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 ofgovernment is threatened from various directions and the economy is just beginning to rise andmove 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 officeand into exile after causing twenty years of political, economic and social havoc in the country andwho 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 implementationof 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 theConstitution, 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 thefollowing 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 andhis family from returning to the Philippines, in the interest of "national security, publicsafety or public health

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

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with inmaking 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 thePresident's decision, including the grounds upon which it was based,been made known to petitioners so that they may controvert thesame?

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, publicsafety, or public health a political question?

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

3. Have the respondents, therefore, in implementing the President's decision to barthe return of former President Marcos and his family, acted and would be actingwithout jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, inperforming any act which would effectively bar the return of former President Marcosand 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 thePhilippines 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 processof 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 prescribedby 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, orpublic health, as may be provided by law.

The petitioners contend that the President is without power to impair the liberty of abode of theMarcoses because only a court may do so "within the limits prescribed by law." Nor may thePresident impair their right to travel because no law has authorized her to do so. They advance theview 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 toreturn 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 withinthe borders of each state.

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



Likewise, the International Covenant on Civil and Political Rights, which had been ratified by thePhilippines, 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 thosewhich 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 areconsistent 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 petitionersFerdinand E. Marcos and his family have the right to travel and liberty of abode.Petitioners invoke these constitutional rights in vacuo without reference to attendantcircumstances.

Respondents submit that in its proper formulation, the issue is whether or notpetitioners Ferdinand E. Marcos and family have the right to return to the Philippinesand reside here at this time in the face of the determination by the President thatsuch return and residence will endanger national security and public safety.

It may be conceded that as formulated by petitioners, the question is not a politicalquestion as it involves merely a determination of what the law provides on the matterand application thereof to petitioners Ferdinand E. Marcos and family. But when thequestion is whether the two rights claimed by petitioners Ferdinand E. Marcos andfamily impinge on or collide with the more primordial and transcendental right of theState to security and safety of its nationals, the question becomes political and thisHonorable 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 thePhilippines 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 thePhilippines and reestablish their residence here even if their return and residencehere will endanger national security and public safety? this is still a justiciablequestion 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 fallswithin 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. TheGovernment may call upon the people to defend the State and, in the fulfillmentthereof, all citizens may be required, under conditions provided by law, to renderpersonal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, l iberty, andproperty, and the promotion of the general welfare are essential for the enjoyment byall the people of the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to thePhilippines 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 theirhomelands was prevented by their governments. [See Statement of Foreign Affairs Secretary RaulS. 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 andits 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 thecontroversy.

At the outset, we must state that it would not do to view the case within the confines of the right totravel 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 Philippinesto other countries or within the Philippines. These are what the right to travel would normallyconnote. Essentially, the right involved is the right to return to one's country, a totally distinct rightunder international law, independent from although related to the right to travel. Thus, the UniversalDeclaration of Humans Rights and the International Covenant on Civil and Political Rights treat theright 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).] Onthe other hand, the Covenant guarantees the "right to liberty of movement and freedom to choosehis 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 "arbitrarilydeprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right toreturn to one's country in the same context as those pertaining to the liberty of abode and the right totravel.



The right to return to one's country is not among the rights specifically guaranteed in the Bill ofRights, which treats only of the liberty of abode and the right to travel, but it is our well-consideredview that the right to return may be considered, as a generally accepted principle of international lawand, 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 theInternational 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 purposeof effectively exercising the right to travel are not determinative of this case and are only tangentiallymaterial insofar as they relate to a conflict between executive action and the exercise of a protectedright. 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 belimitations 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 forits resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolvewhether or not the President has the power under the Constitution, to bar the Marcoses fromreturning to the Philippines. Then, we shall determine, pursuant to the express power of the Courtunder the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or withgrave abuse of discretion amounting to lack or excess of jurisdiction when she determined that thereturn of the Marcose's to the Philippines poses a serious threat to national interest and welfare anddecided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches ofgovernment. 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 tothe executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress ofthe Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of thePhilippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and insuch lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not onlyestablish a separation of powers by actual division [Angara v. Electoral Commission, supra ] but alsoconfer plenary legislative, executive and judicial powers subject only to limitations provided in theConstitution. For as the Supreme Court inOcampo v. Cabangis [15 Phil. 626 (1910)] pointed out "agrant of the legislative power means a grant of all legislative power; and a grant of the judicial powermeans 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 vestedin a hierarchy of courts, it can equally be said of the executive power which is vested in one officialthe President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in thePresident of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant byexecutive power" although in the same article it touches on the exercise of certain powers by thePresident, i.e ., the power of control over all executive departments, bureaus and offices, the powerto 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 theconcurrence of Congress, the power to contract or guarantee foreign loans, the power to enter intotreaties or international agreements, the power to submit the budget to Congress, and the power toaddress 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? Arethese se enumerated powers the breadth and scope of "executive power"? Petitioners advance theview that the President's powers are limited to those specifically enumerated in the 1987Constitution. Thus, they assert: "The President has enumerated powers, and what is not enumeratedis 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 islegally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with the sameproblem. 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; bythe same token, to those who think that constitution makers ought to leaveconsiderable leeway for the future play of political forces, it should be a visionrealized.

We encounter this characteristic of Article 11 in its opening words: "The executivepower 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 heldthe office from Washington to the early 1900's, and the swing from the presidency by commission toLincoln's dictatorship, he concluded that "what the presidency is at any particular moment dependsin 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 ofcourse, an agency of government subject to unvarying demands and duties noremained, of cas President. But, more than most agencies of government, it changedshape, intensity and ethos according to the man in charge. Each President'sdistinctive temperament and character, his values, standards, style, his habits,expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse andpervaded the entire government. The executive branch, said Clark Clifford, was achameleon, taking its color from the character and personality of the President. Thethrust of the office, its impact on the constitutional order, therefore altered from

President to President. Above all, the way each President understood it as hispersonal obligation to inform and involve the Congress, to earn and hold theconfidence of the electorate and to render an accounting to the nation and posteritydetermined 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, thatthe consideration of tradition and the development of presidential power under the differentconstitutions 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 Presidentwith explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modifythe system of government into the parliamentary type, with the President as a mere figurehead, butthrough numerous amendments, the President became even more powerful, to the point that he wasalso the de facto Legislature. The 1987 Constitution, however, brought back the presidential systemof 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 andbalances.

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 suchpositions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitutionitself provides that the execution of the laws is only one of the powers of the President. It also grantsthe President other powers that do not involve the execution of any provision of law, e.g., his powerover the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on theexercise ofspecific powers of the President, it maintains intact what is traditionally considered aswithin the scope of "executive power." Corollarily, the powers of the President cannot be said to belimited only to the specific powers enumerated in the Constitution. In other words, executive power ismore 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 thePhilippines and the Legislature may vote the shares of stock held by the Government to electdirectors 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 suchfunctions by the legislature. Putting aside for the moment the question whether theduties 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 thatthey 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 findreinforcement for the view that it would indeed be a folly to construe the powers of a branch ofgovernment to embrace only what are specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of blackand white. Even the more specific of them are found to terminate in a penumbrashading 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 byveiling words we do not and cannot carry out the distinction between legislative and



executive action with mathematical precision and divide the branches into watertightcompartments, were it ever so desirable to do so, which I am far from believing that itis, 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 toserve and protect the people" and that "[t]he maintenance of peace and order,the protection of l ife,liberty, and property, and the promotion of the general welfare are essential for the enjoyment by allthe 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 protectionof life, liberty and property, and the promotion of the general welfare are essentially ideals to guidegovernmental action. But such does not mean that they are empty words. Thus, in the exercise ofpresidential functions, in drawing a plan of government, and in directing implementing action forthese plans, or from another point of view, in making any decision as President of the Republic, thePresident 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 thePhilippines, the President is, under the Constitution, constrained to consider these basic principles inarriving at a decision. More than that, having sworn to defend and uphold the Constitution, thePresident has the obligation under the Constitution to protect the people, promote their welfare andadvance the national interest. It must be borne in mind that the Constitution, aside from being anallocation of power is also a social contract whereby the people have surrendered their sovereignpowers to the State for the common good. Hence, lest the officers of the Government exercising thepowers delegated by the people forget and the servants of the people become rulers, theConstitution reminds everyone that "[s]overeignty resides in the people and all government authorityemanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to thecountry 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. Theconstitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of even thepreferred freedoms of speech and ofexpression, although couched in absolute terms, admits of l imitsand 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 againstthe exercise of rights of certain individuals. The power involved is the President's residual power toprotect the general welfare of the people. It is founded on the duty of the President, as steward ofthe people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also hisduty 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 thelaws are faithfully executed [see Hyman, The American President , where the author advances theview that an allowance of discretionary power is unavoidable in any government and is best lodgedin 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 limitedmerely to exercising the commander-in-chief powers in times of emergency or to leading the Stateagainst 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-dayproblems of maintaining peace and order and ensuring domestic tranquility in times when no foreignfoe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential dutiesin times of peace is not in any way diminished by the relative want of an emergency specified in thecommander-in-chief provision. For in making the President commander-in-chief the enumeration ofpowers 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 hasbeen recognized by memembers of the Legislature, and is manifested by the Resolution proposed inthe 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 reconciliationand as irrevocable proof of our collective adherence to uncompromising respect for human rightsunder the Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolutiondoes 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 hiscountry.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to return tothe Philippines cannot be considered in the light solely of the constitutional provisions guaranteeingliberty of abode and the right to travel, subject to certain exceptions, or of case law which clearlynever contemplated situations even remotely similar to the present one. It must be treated as amatter that is appropriately addressed to those residual unstated powers of the President which areimplicit in and correlative to the paramount duty residing in that office to safeguard and protectgeneral welfare. In that context, such request or demand should submit to the exercise of a broaderdiscretion 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 orinstrumentality of the Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with theSolicitor General that the issue constitutes a political question which is beyond the jurisdiction of theCourt 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 tothe 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 peoplethemselves through a plebiscite or referendum. We cannot, for example, question the President'srecognition of a foreign government, no matter how premature or improvident such action mayappear. 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 adispute 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 politicalquestion doctrine. The deliberations of the Constitutional Commission cited by petitioners show thatthe framers intended to widen the scope of judicial review but they did not intend courts of justice tosettle all actual controversies before them. When political questions are involved, the Constitutionlimits the determination to whether or not there has been a grave abuse of discretion amounting tolack 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 concernedand decide a matter which by its nature or by law is for the latter alone to decide. In this light, itwould 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 beena 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 theprivilege of the writ of habeas corpus under specified conditions. Pursuant to theprinciple of separation of powers underlying our system of government, the Executiveis supreme within his own sphere. However, the separation of powers, under theConstitution, is not absolute. What is more, it goes hand in hand with the system ofchecks and balances, under which the Executive is supreme, as regards thesuspension of the privilege, but only if and when he acts within the sphere alloted tohim by the Basic Law, and the authority to determine whether or not he has so actedis vested in the Judicial Department, which, in this respect, is, in turn, constitutionallysupreme. In the exercise of such authority, the function of the Court is merely tocheck— not to supplant the Executive, or to ascertain merely whether he has gonebeyond the constitutional limits of his jurisdiction, not to exercise the power vested inhim 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 forthe President to conclude that it was in the national interest to bar the return of the Marcoses to thePhilippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or thatshe 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 revealedduring the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and theNational Security Adviser, wherein petitioners and respondents were represented, there exist factualbases for the President's decision..

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

As divergent and discordant forces, the enemies of the State may be contained. The militaryestablishment has given assurances that it could handle the threats posed by particular groups. Butit 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 haveacted arbitrarily and capriciously and whimsically in determining that the return of the Marcosesposes 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 ofviolence against the State, that would be the time for the President to step in and exercise thecommander-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 againstthreats 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 theState 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, cannotshirk 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 closeassociates and relatives, many of whom are still here in the Philippines in a position to destabilizethe country, while the Government has barely scratched the surface, so to speak, in its efforts torecover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, Wecannot ignore the continually increasing burden imposed on the economy by the excessive foreignborrowing during the Marcos regime, which stifles and stagnates development and is one of the rootcauses of widespread poverty and all its attendant ills. The resulting precarious state of our economyis 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 wouldwipe away the gains achieved during the past few years and lead to total economic collapse. Givenwhat is within our individual and common knowledge of the state of the economy, we cannot arguewith that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily orwith grave abuse of discretion in determining that the return of former President Marcos and hisfamily at the present time and under present circumstances poses a serious threat to nationalinterest and welfare and in prohibiting their return to the Philippines, the instant petition is herebyDISMISSED.

SO ORDERED.

sec 1 marcos v maglapus

Documents