107. marcos vs. manglapus

8/10/2019 107. Marcos vs. Manglapus

http://slidepdf.com/reader/full/107-marcos-vs-manglapus 1/8

101 Marcos vs Manglapus – 177 SCRA 668 (1989 ) – A7 S1 – executive powerEN BANC

[G.R. No. 88211. September 15, 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, CONRADOF. 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 NationalDefense and Chief of Staff, respectively, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RETURN TO ONE'S COUNTRY, NOT AMONG THE

RIGHTS GUARANTEED.—

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.

2. ID.; ID.; RIGHT TO RETURN CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONALLAW. — It is the court's well-considered view that the right to return may be considered, as a generally accepted principle ofinternational law and under our Constitution, is part of the law of the land [Art. II Sec. 2 of the Constitution.]

3. ID.; ID.; RIGHT TO RETURN, DISTINCT AND SEPARATE FROM THE RIGHT TO TRAVEL. — It is distinct andseparate from the right to travel and enjoys a different protection under the International Covenant of Civil and PoliticalRights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

4. ID.; ALLOCATION OF POWER IN THE THREE BRANCHES OF GOVERNMENT A GRANT OF ALL THE POWERSINHERENT THERETO. — As the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of thelegislative power means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicialpower which may be exercised under the government." [At 631-632.] If this can be said of the legislative power which isexercised 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.5. ID.; PRESIDENT'S POWER UNDER THE 1987 CONSTITUTION; EXTENT AND LIMITATION.— Consideration of

tradition and the development of presidential power under the different constitutions are essential for a completeunderstanding of the extent of and limitations to the President's powers under the 1987 Constitution. Although the 1987Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionallyconsidered as within the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited onlyto the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specificpowers so enumerated.

6. ID.; PRESIDENT'S RESIDUAL POWER TO PROTECT THE GENERAL WELFARE OF THE PEOPLE; THE POWERSINVOLVED. — The power involved is the President's residual power to protect the general welfare of the people. It is foundedon the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of thePresident but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand.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 tranquillity in times when no foreign foe appearson the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any waydiminished by the relative want of an emergency specified in the commander-in-chief provision.

7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; REQUEST TO BE ALLOWED TO RETURN TO THEPHILIPPINES; TO BE TREATED AS ADDRESSED TO THE RESIDUAL UNSTATED POWERS OF THE PRESIDENT.— The requestor demand of the Marcoses to be allowed to return to the Philippines cannot be considered in the light solely of theconstitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or of case lawwhich clearly never contemplated situations even remotely similar to the present one. It must be treated as a matter that isappropriately addressed to those residual unstated powers of the President which are implicit in and correlative to theparamount duty residing in that office to safeguard and protect general welfare. In that context, such request or demandshould submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted ordenied.

8. ID.; JUDICIAL REVIEW; POWER TO DETERMINE GRAVE ABUSE OF DISCRETION OR EXCESS OF JURISDICTION

ON ANY BRANCH OR INSTRUMENTALITY OF THE GOVERNMENT.—

The present Constitution limits resort to the politicalquestion doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, wouldhave normally left to the political departments to decide. The deliberations of the Constitutional Commission cited bypetitioners show that the 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 Constitution limits the determination towhether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the officialwhose action is being questioned.

9. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL OF REQUEST TO BE ALLOWED TO RETURN TOTHE PHILIPPINES, NOT A GRAVE ABUSE OF DISCRETION. — We find that from the pleadings filed by the parties, from theiroral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of thePhilippines and the National Security Adviser, wherein petitioners and respondents were represented, there exist factualbases for the President's decision. The documented history of the efforts of the Marcoses and their followers to destabilize thecountry, 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. With these before her, the Presidentcannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses posesa serious threat to the national interest and welfare and in prohibiting their return.

GUTIERREZ, JR., J.: dissenting:1. CONSTITUTIONAL LAW; CONSTITUTION; ITS PROVISIONS PROTECT ALL MEN, AT ALL TIMES AND UNDER

ALL CIRCUMSTANCES. — "The Constitution . . . is a law for rulers and people, equally in war and in peace, and covers with theshield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more perniciousconsequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the greatexigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866]).

2. ID.; POLITICAL QUESTIONS; OUTSIDE THE SCOPE OF JUDICIAL DETERMINATION. — It is a well-settleddoctrine that political questions are not within the province of the judiciary, except to the extent that power to deal with suchquestions has been conferred on the courts by express constitutional or statutory provisions.



3. ID.; ID.; CONSTRUED. — It is not so easy, however, to define the phrase political question, nor to determinewhat matters fall within its scope. It is frequently used to designate all questions that lie outside the scope of the judicialpower. More properly, however, it means those questions which, under the constitution, are to be decided by the people intheir sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executivebranch of the government.

4. ID.; ID.; CONSTITUTIONAL POWER VESTED EXCLUSIVELY IN THE PRESIDENT OR CONGRESS, BEYONDPROHIBITION OR EXAMINATION BY THE COURT REQUIRED FOR ITS EXISTENCE. — For a political question to exist, theremust be in the Constitution a power vested exclusively in the President or Congress, the exercise of which the court should notexamine or prohibit. A claim of plenary or inherent power against a civil right which claim is not found in a specific provision

is dangerous. Neither should we validate a roving commission allowing public officials to strike where they please and tooverride everything which to them represents evil. The entire Government is bound by the rule of law. The authority impliedin Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying the circumstances when theright may be impaired in the interest of national security or public safety. The power is in Congress, not the Executive.

5. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; RIGHT TO TRAVEL INCLUDES RIGHT TO TRAVEL OUT OFOR BACK TO THE PHILIPPINES. — Section 6 of the Bill of Rights states categorically that the liberty of abode and of changingthe same within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer.Not even by the President. Section 6 further provides that the right to travel, and this obviously includes the right to travel outof or back into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, asmay be provided by law.

6. ID.; POLITICAL QUESTION DOCTRINE NO LONGER UTILIZED BY THE COURT; COURT COMPELLED TODECIDE THE CASE UNDER THE 1987 CONSTITUTION. — The framers of the Constitution believed that the free use of thepolitical question doctrine allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,complexity of issues, momentousness of consequences or a fear that it was extravagantly extending judicial power in the caseswhere it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at least two of therespondents and their counsel were among the most vigorous critics of Mr. Marcos (the main petitioner) and his use of thepolitical question doctrine. The Constitution was accordingly amended. We are now precluded by its mandate from refusing toinvalidate a political use of power through a convenient resort to the political question doctrine. We are compelled to decidewhat would have been non-justiceable under our decisions interpreting earlier fundamental charters.

7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL A GRAVE ABUSE OF DISCRETION. — We do nothave to look into the factual bases of the ban Marcos policy in order to ascertain whether or not the respondents acted withgrave abuse of discretion. Nor are we forced to fall back upon judicial notice of the implications of a Marcos return to his hometo buttress a conclusion. In the first place, there has never been a pronouncement by the President that a clear and presentdanger to national security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. Itwas only after the present petition was filed that the alleged danger to national security and public safety convenientlysurfaced in the respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to (1)national welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability.Neither ground satisfies the criteria of national security and public safety. The "confluence theory" of the Solicitor General orwhat the majority calls "catalytic effect," which alone sustains the claim of danger to national security is fraught with perilousimplications. Any difficult problem or any troublesome person can be substituted for the Marcos threat as the catalysingfactor. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, andscores of other "undesirables" and "threats to national security" during that unfortunate period which led the framers of ourpresent Constitution not only to re-enact but to strengthen the declaration of this right.

D E C I S I O N

CORTES, J p:Before the Court is a controversy 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 nationallife.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "peoplepower" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under arevolutionary government. Her ascension to and consolidation of power have not been unchallenged. The failed Manila Hotelcoup 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 unsuccessful plot of the Marcos spouses to surreptitiously return fromHawaii 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 oftheir 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 tothe government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the February Revolution, led a failedcoup that left scores of people, both combatants and civilians, dead. There were several other armed sorties of lessersignificance, but the message they conveyed was the same — a split in the ranks of the military establishment that threatenedcivilian supremacy over the military and brought to the fore the realization that civilian government could be at the mercy of afractious military.

But the armed threats to the Government were not only found in misguided elements in the military establishmentand among rabid followers of Mr. Marcos. There were also the communist insurgency and the secessionist movement inMindanao which gained ground during the rule of Mr. Marcos, to the extent that the communists have set up a parallelgovernment of their own in the areas they effectively control while the separatists are virtually free to move about in armedbands. There has been no let up in these groups' determination to wrest power from the government. Not only through resortto arms but also through the use of propaganda have they been successful in creating chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nationattributed 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 Philippines 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 fromvarious directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar thereturn of Mr. Marcos and his family.

The PetitionThis 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 seeksto return, is in a class by itself.

This petition for mandamus and prohibition asks the Court 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 theirreturn to the Philippines.

The IssueThe 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 his 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 graveabuse of discretion, in performing any act which would effectively bar the return of former President Marcos and his family tothe Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.]

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines isguaranteed 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 anyperson be denied the equal protection of the laws.

xxx xxx xxxSection 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 nationalsecurity, 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 becauseonly a court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because no lawhas authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or agencyof the government, there must be legislation to that effect. llcd

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to thePhilippines 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 121) 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 ofothers, 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 toattendant circumstances.



Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E. Marcos andfamily have the right to return to the Philippines and reside here at this time in the face of the determination by the Presidentthat 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 adetermination 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 collidewith the more primordial and transcendental right of the State to security and safety of its nationals, the question becomespolitical and this Honorable Court can not consider it. cdrep

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 theirresidence 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 theirresidence here even if their return and residence here will endanger national security and public safety? This is still ajusticiable 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 thePhilippines and establish their residence here? This is now a political question which this Honorable Court can not decide for itfalls 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 supportthereof, 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 uponthe people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, torender personal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotionof 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 his family from returning to the Philippines forreasons 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, MaximilianoHernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose returnto 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 notbound 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 theimport 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. 2d1204] and Haig v. Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognizedexceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the Philippines to othercountries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involvedis the right to return to one's country, a totally distinct right under international law, independent from although related to theright to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rightstreat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right toenter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement and residencewithin the borders of each state" [Art. 13(1)] separately from the "right to leave any country, including his own, and to returnto his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement and freedom tochoose his residence" [Art. 12(1)] and the right to "be free to leave any country, including his own." [Art. 12(2)] which rightsmay be restricted by such laws as "are necessary to protect national security, public order, public health or morals or theseparate rights and freedoms of others." [Art. 12(3)] as distinguished from the "right to enter his own country" of which onecannot 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.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treatsonly of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may beconsidered, 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 protectionunder the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases of Kent and Haig, which refer to the issuance of passports for the purpose of effectivelyexercising the right to travel are not determinative of this case and are only tangentially material insofar as they relate to aconflict between executive action and the exercise of a protected right. The issue before the Court is novel and withoutprecedent in Philippine, and even in American jurisprudence. Cdpr

Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the rightto travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will have tobe awaited.

Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. Ourresolution of the issue will involve a two-tiered approach. We shall first resolve whether or not the President has the powerunder the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to theexpress power of the Court under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily orwith grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcosesto the Philippines poses a serious threat to national interest and welfare and decided to bar their return.



Executive PowerThe 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 butwith deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of thegovernment." [At 157.] Thus, the 1987 Constitution explicitly provides that "[t]he legislative power shall be vested in theCongress of the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in the President of the Philippines" [Art.VII, Sec. 1], and "[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be established bylaw" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual division [Angara v. ElectoralCommission, 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 legislativepower means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial power whichmay be exercised under the government." [At 631-632.] If this can be said of the legislative power which is exercised by twochambers with a combined membership of more than two hundred members and of the judicial power which is vested in ahierarchy 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 thePhilippines." [Art. VII, Sec. 1]. However, it does not define what is meant by "executive power" although in the same article ittouches on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureausand offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the powerto grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power tocontract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit thebudget to Congress, and the power to address Congress [Art. VII, Secs. 14-23]. LLphil

The inevitable question then arises: by enumerating certain powers of the President did the framers of theConstitution intend that the President shall exercise those specific powers and no other? Are these enumerated powers thebreadth and scope of "executive power"? Petitioners advance the view that the President's powers are limited to thosespecifically enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated powers, and what is notenumerated is impliedly denied to her. Inclusio unius est exclusio alterius." [Memorandum for Petitioners, p. 4; Rollo p. 233.]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 leaveconsiderable leeway for the future play of political forces, it should be a vision realized.

We encounter this characteristic of Article II in its opening words: "The executive power shall be vested in a Presidentof the United States of America." . . . [The President: Office and Powers, 1787-1957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who held the office fromWashington 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 matter who was President. But, more than most agencies of government, itchanged 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 White House andpervaded the entire government. The executive branch, said Clark Clifford, was a chameleon, taking its color from thecharacter and personality of the President. The thrust of the office, its impact on the constitutional order, therefore alteredfrom President to President. Above all, the way each President understood it as his personal obligation to inform and involvethe Congress, to earn and hold the confidence 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, that the consideration oftradition and the development of presidential power under the different constitutions are essential for a completeunderstanding of the extent of and limitations to the President's powers under the 1987 Constitution. The 1935 Constitutioncreated a strong President with 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, but through numerousamendments, the President became even more powerful, to the point that he was also the de facto Legislature. The 1987Constitution, 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 forchecks and balances. LexLib

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the Presidentis head of state as well as head of government and whatever powers inherent in such positions pertain to the office unless theConstitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of thepowers 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 ofspecific 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 theConstitution. 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 beexecutive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on theissue of who between the Governor-General of the Philippines and the Legislature may vote the shares of stock held by theGovernment to elect directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court, inupholding 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 notcharged with the performance of any legislative functions or with the doing of anything which is in aid of performance of anysuch 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 clearthat they are not judicial. The fact that they do not fall within the authority of either of these two constitutes logical ground forconcluding 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 reinforcementfor the view that it would indeed be a folly to construe the powers of a branch of government to embrace only what arespecifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specificof them are found to terminate in penumbra shading gradually from one extreme to the other. . . .

xxx xxx xxxIt does not seem to need argument to show that however we may disguise it by veiling words we do not and cannotcarry out the distinction between legislative and executive action with mathematical precision and divide the branches intowatertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitutionrequires.[At 210-211.]

The Power InvolvedThe Constitution declares among the guiding principles that "[t]he prime duty of the Government is to serve and

protect the people" and that "[t]he maintenance of peace and order, the protection of life, liberty, and property, and thepromotion 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, libertyand property, and the promotion of the general welfare are essentially ideals to guide governmental action. But such does notmean that they are empty words. Thus, in the exercise of presidential functions, in drawing a plan of government, and indirecting implementing action for these plans, or from another point of view, in making any decision as President of theRepublic, the President has to consider these principles, among other things, and adhere to them. prcd

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, thePresident 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 thepeople, promote their welfare and advance the national interest. It must be borne in mind that the Constitution, aside frombeing an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the Statefor the common good. Hence, lest the officers of the Government exercising the powers delegated by the people forget and theservants of the people become rulers, the Constitution reminds everyone that "[s]overeignty resides in the people and allgovernment 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 deposeddictator 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. Forthe exercise of even the preferred freedoms of speech and of expression, although couched in absolute terms, admits of limitsand must be adjusted to the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988].

To the President, the problem is one of balancing the general welfare and the common good against the exercise ofrights 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 powerof 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 alsomay be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see Hyman, TheAmerican President, where the author advances the view that an allowance of discretionary power is unavoidable in anygovernment 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, TheAmerican 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 Presidentis 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 tranquillity in times when no foreign foe appears on thehorizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any waydiminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the Presidentcommander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising asCommander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpusor 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 Marcoses from returning has been recognized bymembers of the Legislature, and is manifested by the Resolution proposed in the House of Representatives and signed by 103of its members urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for truenational reconciliation and 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.] The Resolution does not question thePresident's power to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense ofcompassion 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 Philippinescannot 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 presentone. It must be treated as a matter that is appropriately addressed to those residual unstated powers of the President whichare implicit in and correlative to the paramount duty residing in that office to safeguard and protect general welfare. In thatcontext, such request or demand should submit to the exercise of a broader discretion on the part of the President todetermine whether it must be granted or denied. llcd

The Extent of Review



Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave abuse ofdiscretion 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 whichis 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 intoareas which the Court, under previous constitutions, would have normally left to the political departments to decide. Butnonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President, forCongress 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 theConstitution 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 ofjudicial review but they did not intend courts of justice to settle all actual controversies before them. When political questionsare involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amountingto 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 isfor the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of theConstitution, defining "judicial power," which specifically empowers the courts to determine whether or not there has been agrave abuse of discretion on the part of any branch or instrumentality of the government, incorporates in the fundamental lawthe ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 448] that:

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of habeascorpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, theExecutive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. Whatis 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 todetermine 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 toascertain merely whether he has gone beyond 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 for the President toconclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do exist, itcannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar theirreturn.

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during thebriefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, whereinpetitioners 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 historyof the efforts of the Marcoses and 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 the violence directed against theState and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The military establishment has givenassurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the Marcosesthat 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 indetermining that the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting theirreturn.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence againstthe State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her by theConstitution to suppress or stamp out such violence. The State, acting through the Government, is not precluded from takingpre-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 thepeople's sovereignty — is an obligation in the highest order. The President, sworn to preserve and defend the Constitution andto see the faithful execution the laws, cannot shirk from that responsibility. LLjur

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships broughtabout by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom arestill here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, soto speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannotignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the Marcosregime, 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 thegains achieved during the past few years and lead to total economic collapse. Given what is within our individual and commonknowledge 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 abuseof discretion in determining that the return of former President Marcos and his family at the present time and under presentcircumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines, theinstant petition is hereby DISMISSED. So ordered.

Narvasa, Melencio-Herrera, Gancayco, Griño-Aquino, Medialdea and Regalado, JJ., concur.Feliciano, J., is on leave.

107. marcos vs. manglapus

Documents