119 Marcos vs Manglapus

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. M ARCOS, JR., IRENE M.ARANET A, IMEE MANOTOC, TOM AS M ANOTOC, GREGORIO ARANETA, PACIFICO E.MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),represented by its President, CONRADO F. ESTRELLA, petitioners,vs.HONORABLE RAUL M ANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, 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 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 wasdeclared 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 byCol. 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 Lebanesearms 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 alsoclearly 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 themajor players in the February Revolution, led a failed coup that left scores of people, both

combatants and civilians, dead. There were several other armed sorties of lesser significance, but

the message they conveyed was the same a split in the ranks of the military establishment that

thraetened civilian supremacy over military and brought to the fore the realization that civiliangovernment could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements and among

rabid followers of Mr. Marcos. There are also the communist insurgency and the seccessionist

movement in Mindanao which gained ground during the rule of Mr. Marcos, to the extent that thecommunists 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 onthis groups' determination to wrest power from the govermnent. Not only through resort to arms but


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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 econom y devastated. The efforts ateconomic 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 ofgovernment 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 c lass by itself.

This petition for mandamusand 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 theimplementation 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 Marcosand 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, 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, 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?


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(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, 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, 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 actingwithout 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 thePhilippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of l ife, 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 prescribed

by law shall not be impaired except upon lawful order of the court. Neither shall theright 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 thePresident 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.


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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 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 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 vacuowithout 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 r ight to return to the Philippines

and reside here at this time in the face of the determination by the President that suchreturn 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 matter

and application thereof to petitioners Ferdinand E. Marcos and family. But when thequestion 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 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 the

Philippines and reestablish their residence here? This is clearly a justiciable questionwhich 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 questionwhich 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 Phil ippines and establish their residence here?


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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 t he 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 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 byall 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 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 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 exercisethereof, respectively.

It must be emphasized that the individual right involved is notthe right to travel from the Philippinesto 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 rightunder 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).] Onthe other hand, the Covenant guarantees the "r ight 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 toreturn to one's country in the same context as those pertaining to the liberty of abode and the right to

travel.


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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-consideredview 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 underthe 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 Haigwhich 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 ofa 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 forits 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 Courtunder the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with

grave abuse of d iscretion 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 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 inAngara 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, the1987 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 thePhilippines" [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 alsoconfer 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 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 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 byexecutive 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


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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 theconcurrence 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? Arethese 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 notenumerated 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. Presidencyafter which ours is legally 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 thata constitution ought to settle everything beforehand it should be a n ightmare; 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." . . . . [ThePresident: 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 noremained, of cas President. But, more than most agencies of government, it changed

shape, 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 and

pervaded the entire government. The executive branch, said Clark Clifford, was achameleon, 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 hispersonal 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


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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 Presidentwith 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 wasalso 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 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

such positions pertain to the office unless the Constitution itself withholds it. Furthermore, theConstitution 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 specificpowers 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 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 norjudicial 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 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 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 theremaining 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 specifica lly mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black andwhite. Even the more specific of them are found to terminate in a penumbra shading

gradually from one extreme to the other. ....

xxx xxx xxx


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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 andexecutive 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 genera l 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 guide

governmental 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 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 inarriving at a decision. More than that, having sworn to defend and uphold the Constitution, the

President has the obligation under the Constitutionto protect the people, promote their welfare and

advance 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 surrender ed their sovereign

powers 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, 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 andfrom whom billions of dollars believed to be il l-gotten wealth are sought to be recovered. The

constitutional 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

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 toprotect 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 nationdemand [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 takecare that the laws are faithfully executed [seeHyman, 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].


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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 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-dayproblems 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 thecommander-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 habeascorpusor 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 returnto 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 c learly never contemplated situations even remotely similar to the present one. It must betreated 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 grantedor 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 theSolicitor 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'sjurisdiction the determination of which is exclusively for the Pres ident, for Congress or for the people

themselves 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 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 adispute brought before us because the power is reserved to the people.


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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 thatthe 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 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 concerned

and 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 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 theprinciple 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 thesuspension 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 actedis 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 checknot 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 orthat 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 theNational 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 officersand 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 thisponenc iabolsters the

conclusion 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 military

establishment has given assurances that it could handle the threats posed by particular groups. But

it is the catalytic effectof the return of the Marcoses that may prove to be the proverbial final strawthat would break the camel's back. With these before her, the President cannot be said to have


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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 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 against

threats to its existence if, though still nascent they are perceived as apt to become serious anddirect. 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, 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 close

associates 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 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 foreignborrowing 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 result ing 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 wouldwipe away the gains achieved during the past few years and lead to total economic collapse. Given

what is within our individual and common knowledge of the state of the economy, we cannot argue

with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or

with grave abuse of discretion in determining that the return of former President Marcos and his

family at the present time and under present circumstances poses a serious threat to nationalinterest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby

DISMISSED.

SO ORDERED.

Documents

119 Marcos vs Manglapus