EN 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, CONRADO F. ESTRELLA, petitioners, vs. HONORABLE RAUL
MANGLAPUS,
CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as
Secretary of Foreign Affairs, Executive Secretary, Secretary of
Justice, Immigration Commissioner, Secretary of National Defense and
Chief of Staff, respectively, respondents.
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
national life.
We recall that in February 1986,
Ferdinand E. Marcos was deposed from the presidency via the
non-violent "people power" revolution and forced into
exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and
consolidation of power have not been unchallenged. The failed Manila
Hotel coup in 1986 led by political leaders of Mr. Marcos, the
takeover of television station Channel 7 by rebel troops led by Col.
Canlas with the support of "Marcos loyalists" and the
unsuccessful plot of the Marcos spouses to surreptitiously return
from Hawaii with mercenaries aboard an aircraft chartered by a
Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the
nation to the capacity of the Marcoses to stir trouble even from afar
and to the fanaticism and blind loyalty of their followers in the
country. The ratification of the 1987 Constitution enshrined the
victory of "people power" and also clearly reinforced the
constitutional moorings of Mrs. Aquino's presidency. This did not,
however, stop bloody challenges to the government. On August 28,
1987, Col. Gregorio Honasan, one of the major players in the February
Revolution, led a failed coup that left scores of people, both
combatants and civilians, dead. There were several other armed
sorties of lesser significance, but the message they conveyed was the
same — a split in the ranks of the military establishment that
threatened civilian supremacy over the military and brought to the
fore the realization that civilian government could be at the mercy
of a fractious military.
But the armed threats to the Government
were not only found in misguided elements in the military
establishment and among rabid followers of Mr. Marcos. There were
also the communist insurgency and the secessionist movement in
Mindanao which gained ground during the rule of Mr. Marcos, to the
extent that the communists have set up a parallel government of their
own in the areas they effectively control while the separatists are
virtually free to move about in armed bands. There has been no let up
in these groups' determination to wrest power from the government.
Not only through resort to 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 nation
attributed to Mr. Marcos and his cronies left the economy devastated.
The efforts at economic recovery, three years after Mrs. Aquino
assumed office, have yet to show concrete results in alleviating the
poverty of the masses, while the recovery of the ill-gotten wealth of
the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has
signified his wish to return to the 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 from various
directions and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the return of Mr.
Marcos and his family.
The Petition
This case is unique. It should not
create a precedent, for the case of a dictator forced out of office
and into exile after causing twenty years of political, economic and
social havoc in the country and who within the short space of three
years seeks to return, is in a class by itself.
This petition for mandamus and
prohibition asks the 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 their
return to the Philippines.
The Issue
The 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 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.]
The case for petitioners is founded on
the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill
of Rights, to wit:
Section 1. No person shall be deprived
of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.
xxx xxx
xxx
Section 6. The liberty of abode and of
changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
The petitioners contend that the
President is without power to impair the liberty of abode of the
Marcoses because only a court may do so "within the limits
prescribed by law." Nor may the President impair their right to
travel because no law has authorized her to do so. They advance the
view that before the right to travel may be impaired by any authority
or agency of the government, there must be legislation to that
effect. llcd
The petitioners further assert that
under international law, the right of Mr. Marcos and his family to
return to the Philippines is guaranteed.
The Universal Declaration of Human
Rights provides:
Article 13.
(1) Everyone has the right to freedom
of movement and residence within the borders of each state.
(2) Everyone has the right to leave any
country, including his own, and to return to his country.
Likewise, the International Covenant on
Civil and Political Rights, which had been ratified by the
Philippines, provides:
Article 12
1) Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any
country, including his own.
3) The above-mentioned rights shall not
be subject to any restrictions except those which are provided by
law, are necessary to protect national security, public order (order
public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the
present Covenant.
4) No one shall be arbitrarily deprived
of the right to enter his own country.
On the other hand, the respondents'
principal argument is that the issue in this case involves a
political question which is non-justiciable. According to the
Solicitor General:
As petitioners couch it, the question
involved is simply whether or not petitioners Ferdinand E. Marcos and
his family have the right to travel and liberty of abode. Petitioners
invoke these constitutional rights in vacuo without reference to
attendant circumstances.
Respondents submit that in its proper
formulation, the issue is whether or not petitioners Ferdinand E.
Marcos and family have the right to return to the Philippines and
reside here at this time in the face of the determination by the
President that such return and residence will endanger national
security and public safety.
It may be conceded that as formulated
by petitioners, the question is not a political question as it
involves merely a determination of what the law provides on the
matter and application thereof to petitioners Ferdinand E. Marcos and
family. But when the question is whether the two rights claimed by
petitioners Ferdinand E. Marcos and family impinge on or collide with
the more primordial and transcendental right of the State to security
and safety of its nationals, the question becomes political and this
Honorable Court can not consider it.
There are thus gradations to the
question, to wit:
Do petitioners Ferdinand E. Marcos and
family have the right to return to the Philippines and reestablish
their residence here? This is clearly a justiciable question which
this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and
family have their right to return to the Philippines and reestablish
their residence here even if their return and residence here will
endanger national security and public safety? This is still a
justiciable question which this Honorable Court can decide.
Is there danger to national security
and public safety if petitioners Ferdinand E. Marcos and family shall
return to the Philippines and establish their residence here? This is
now a political question which this Honorable Court can not decide
for it falls within the exclusive authority and competence of the
President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]
Respondents argue for the primacy of
the right of the State to national security over individual rights.
In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the
Government is to serve and protect the people. The Government may
call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by
law, to render personal, military, or civil service.
Section 5. The maintenance of peace and
order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.
Respondents also point out that the
decision to ban Mr. Marcos and his family from returning to the
Philippines for reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican Republic,
Anastacio Somoza, Jr. of Nicaragua, Jorge Ubico of Guatemala,
Fulgencio Batista of Cuba, King Farouk of Egypt, Maximiliano
Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of
Venezuela were among the deposed dictators whose return to their
homelands was prevented by their governments. [See Statement of
Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for
Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the
underlying issue is one of the scope of presidential power and its
limits. We, however, view this issue in a different light. Although
we give due weight to the parties' formulation of the issues, we are
not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it
would not do to view the case within the confines of the right to
travel and the import of the decisions of the U.S. Supreme Court in
the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L
Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed.
2d 640) which affirmed the right to travel and recognized exceptions
to the exercise thereof, respectively.
It must be emphasized that the
individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are
what the right to travel would normally connote. Essentially, the
right involved is the right to return to one's country, a totally
distinct right under international law, independent from although
related to the right to travel. Thus, the Universal Declaration of
Humans Rights and the International Covenant on Civil and Political
Rights treat the right to freedom of movement and abode within the
territory of a state, the right to leave a country, and the right to
enter one's country as separate and distinct rights. The Declaration
speaks of the "right to freedom of movement and residence within
the borders of each state" [Art. 13(1)] separately from the
"right to leave any country, including his own, and to return to
his country." [Art. 13(2).] On the other hand, the Covenant
guarantees the "right to liberty of movement and freedom to
choose his residence" [Art. 12(1)] 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
the separate rights and freedoms of others." [Art. 12(3)] as
distinguished from the "right to enter his own country" of
which one cannot be "arbitrarily deprived." [Art. 12(4).]
It would therefore be inappropriate to construe the limitations to
the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is
not among the rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right to travel,
but it is our well-considered view that the right to return may be
considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution.] However, it is distinct and separate
from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against
being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent
and Haig, which refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not determinative of
this case and are only tangentially material insofar as they relate
to a conflict between executive action and the exercise of a
protected right. The issue before the Court is novel and without
precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court
of the well-debated issue of whether or not there can be limitations
on the right to travel in the absence of legislation to that effect
is rendered unnecessary. An appropriate case for its resolution will
have to be awaited.
Having clarified the substance of the
legal issue, we find now a need to explain the methodology for its
resolution. Our resolution of the issue will involve a two-tiered
approach. We shall first resolve whether or not the President has the
power under the Constitution, to bar the Marcoses from returning to
the Philippines. Then, we shall determine, pursuant to the express
power of the Court under the Constitution in Article VIII, Section 1,
whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she
determined that the return of the Marcoses to the Philippines poses a
serious threat to national interest and welfare and decided to bar
their return.
Executive Power
The 1987 Constitution has fully
restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v.
Electoral Commission [63 Phil. 139 (1936)], "the Constitution
has blocked but with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments
of the government." [At 157.] Thus, the 1987 Constitution
explicitly provides that "[t]he legislative power shall be
vested in the Congress 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 by law" [Art. VIII, Sec. 1.] These provisions not
only establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in
the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15
Phil. 626 (1910)] pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised
under the government." [At 631-632.] If this can be said of the
legislative power which is exercised by two chambers with a combined
membership of more than two hundred members and of the judicial power
which is vested in a hierarchy of courts, it can equally be said of
the executive power which is vested in one official — the
President.
As stated above, the Constitution
provides that "[t]he executive power shall be vested in the
President of the Philippines." [Art. VII, Sec. 1]. However, it
does not define what is meant by "executive power" although
in the same article it touches on the exercise of certain powers by
the President, i.e., the power of control over all executive
departments, bureaus and offices, the power to execute the laws, the
appointing power, the powers under the commander-in-chief clause, the
power to grant reprieves, commutations and pardons, the power to
grant amnesty with the concurrence of Congress, the power to contract
or guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Secs. 14-23].
The inevitable question then arises: by
enumerating certain powers of the President did the framers of the
Constitution intend that the President shall exercise those specific
powers and no other? Are these enumerated powers the breadth and
scope of "executive power"? Petitioners advance the view
that the President's powers are limited to those specifically
enumerated in the 1987 Constitution. Thus, they assert: "The
President has enumerated powers, and what is not enumerated is
impliedly denied to her. 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
leave considerable 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 President of 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
from Washington to the early 1900's, and the swing from the
presidency by commission to Lincoln's dictatorship, he concluded that
"what the presidency is at any particular moment depends in
important measure on who is President." [At 30.]
This view is shared by Schlesinger, who
wrote in The Imperial Presidency:
For the American Presidency was a
peculiarly personal institution. It remained, of course, an agency of
government subject to unvarying demands and duties no matter who was
President. But, more than most agencies of government, it changed
shape, intensity and ethos according to the man in charge. Each
President's distinctive temperament and character, his values,
standards, style, his habits, expectations, idiosyncrasies,
compulsions, phobias recast the White House and pervaded the entire
government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the
President. The thrust of the office, its impact on the constitutional
order, therefore altered from President to President. Above all, the
way each President understood it as his personal obligation to inform
and involve the Congress, to earn and hold the confidence of the
electorate and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the constitutional
order. [At 212-213.]
We do not say that the presidency is
what Mrs. Aquino says it is or what she does but, rather, that the
consideration of tradition and the development of presidential power
under the different constitutions are essential for a complete
understanding of the extent of and limitations to the President's
powers under the 1987 Constitution. The 1935 Constitution created a
strong President with explicitly broader powers than the U.S.
President. The 1973 Constitution attempted to modify the system of
government into the parliamentary type, with the President as a mere
figurehead, but through numerous amendments, the President became
even more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the
presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with
provision for checks and balances.
It would not be accurate, however, to
state that "executive power" is the power to enforce the
laws, for the President is head of state as well as head of
government and whatever powers inhere in such positions pertain to
the office unless the Constitution itself withholds it. Furthermore,
the Constitution itself provides that the execution of the laws is
only one of the powers of the President. It also grants the President
other powers that do not involve the execution of any provision of
law, e.g., his power over the country's foreign relations.
On these premises, we hold the view
that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact
what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of
specific powers so enumerated.
It has been advanced that whatever
power inherent in the government that is neither legislative nor
judicial has to be executive. Thus, in the landmark decision of
Springer v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the Governor-General of the
Philippines and the Legislature may vote the shares of stock held by
the Government to elect directors in the National Coal Company and
the Philippine National Bank, the U.S. Supreme Court, in upholding
the power of the Governor-General to do so, said:
. . . Here the members of the
legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the
performance of any legislative functions or with the doing of
anything which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act in
the Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact
that they do not fall within the authority of either of these two
constitutes logical ground for concluding that they do fall within
that of the remaining one among which the powers of government are
divided . . . [At 202-203; emphasis supplied.]
We are not unmindful of Justice Holmes'
strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to
construe the powers of a branch of government to embrace only what
are specifically mentioned in the Constitution:
The great ordinances of the
Constitution do not establish and divide fields of black and white.
Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. . . .
xxx xxx
xxx
It does not seem to need argument to
show that however we may disguise it by veiling words we do not and
cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into
watertight compartments, were it ever so desirable to do so, which I
am far from believing that it is, or that the Constitution
reqiures.[At 210-211.]
The Power Involved
The 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 the promotion of the general welfare are essential for
the enjoyment by all the people of the blessings of democracy."
[Art. II, Secs. 4 and 5.]
Admittedly, service and protection of
the people, the maintenance of peace and order, the protection of
life, liberty and property, and the promotion of the general welfare
are essentially ideals to guide governmental action. But such does
not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in
directing implementing action for these plans, or from another point
of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and
adhere to them.
Faced with the problem of whether or
not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than
that, having sworn to defend and uphold the Constitution, the
President has the obligation under the Constitution to protect the
people, promote their welfare and advance the national interest. It
must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have
surrendered their sovereign powers to the State for the common good.
Hence, lest the officers of the Government exercising the powers
delegated by the people forget and the servants of the people become
rulers, the Constitution reminds everyone that "[s]overeignty
resides in the people and all government authority emanates from
them." [Art. II, Sec. 1.]
The resolution of the problem is made
difficult because the persons who seek to return to the country are
the deposed dictator and his family at whose door the travails of the
country are laid and from whom billions of dollars believed to be
ill-gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For the
exercise of even the preferred freedoms of speech and of expression,
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, 1988].
To the President, the problem is one of
balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the
people. It is founded on the duty of the President, as steward of the
people. To paraphrase Theodore Roosevelt, it is not only the power of
the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand [See
Corwin, supra, at 153]. It is a power borne by the President's duty
to preserve and defend the Constitution. It also may be viewed as a
power implicit in the President's duty to take care that the laws are
faithfully executed [see Hyman, The American President, where the
author advances the view that an allowance of discretionary power is
unavoidable in any government and is best lodged in the President].
More particularly, this case calls for
the exercise of the President's powers as protector of the peace.
[Rossiter, The American Presidency]. The power of the President to
keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the
State against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic
tranquillity in times when no foreign foe appears on the horizon.
Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative
want of an emergency specified in the commander-in-chief provision.
For in making the President commander-in-chief the enumeration of
powers that follow cannot be said to exclude the President's
exercising as Commander-in-Chief powers short of the calling of the
armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.
That the President has the power under
the Constitution to bar the Marcoses from returning has been
recognized by members 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.] The Resolution does not question the President's power to
bar the Marcoses from returning to the Philippines, rather, it
appeals to the President's sense of compassion to allow a man to come
home to die in his country.
What we are saying in effect is that
the request or demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right
to travel, subject to certain exceptions, or of case law which
clearly never contemplated situations even remotely similar to the
present one. It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President which
are implicit in and correlative to the paramount duty residing in
that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a
broader discretion on the part of the President to determine whether
it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power
includes the duty to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government."
[Art. VIII, Sec. 1.] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question
which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort
to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions,
would have normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court's jurisdiction the
determination of which is exclusively for the President, for Congress
or for the people themselves through a plebiscite or referendum. We
cannot, for example, question the President's recognition of a
foreign government, no matter how premature or improvident such
action may appear. We cannot set aside a presidential pardon though
it may appear to us that the beneficiary is totally undeserving of
the grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved
to the people.
There is nothing in the case before us
that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission cited by
petitioners show that the framers intended to widen the scope of
judicial review but they did not intend courts of justice to settle
all actual controversies before them. When political questions are
involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is
being questioned. If grave abuse is not established, the Court will
not substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter alone
to decide. In this light, it would appear clear that the second
paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to
determine whether or not there has been a grave abuse of discretion
on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia
[G.R. No. L-33964, December 11, 1971, 42 SCRA 448] that:
Article VII of the [1935] Constitution
vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system of
government, the Executive is supreme within his own sphere. However,
the separation of powers, under the Constitution, is not absolute.
What is more, it goes hand in hand with the system of checks and
balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally
supreme.
In the exercise of such authority, the
function of the Court is merely to check — not to supplant — the
Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act .. [At 479-480.].
Accordingly, the question for the Court
to determine is whether or not there exist factual bases for the
President to conclude that it was in the national interest to bar the
return of the Marcoses to the Philippines. If such postulates do
exist, it cannot be said that she has acted, or acts, arbitrarily or
that she has gravely abused her discretion in deciding to bar their
return.
We find that from the pleadings filed
by the parties, from their oral arguments, and the facts revealed
during the briefing in chambers by the Chief of Staff of the Armed
Forces of the Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist factual
bases for the President's decision.
The Court cannot close its eyes to
present realities and pretend that the country is not besieged from
within by a well-organized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers
and civilian officials, to mention only a few. The documented history
of the efforts of the Marcoses and their followers to destabilize the
country, as earlier narrated in this ponencia bolsters the conclusion
that the return of the Marcoses at this time would only exacerbate
and intensify the violence directed against the State and instigate
more chaos.
As divergent and discordant forces, the
enemies of the State may be contained. The military establishment has
given assurances that it could handle the threats posed by particular
groups. But it is the catalytic effect of the return of the Marcoses
that may prove to be the proverbial final straw that would break the
camel's back.
With these before her, the President
cannot be said to have acted arbitrarily and capriciously and
whimsically in determining that the return of the Marcoses poses a
serious threat to the national interest and welfare and in
prohibiting their return.
It will not do to argue that if the
return of the Marcoses to the Philippines will cause the escalation
of violence against the State, that would be the time for the
President to step in and exercise the commander-in-chief powers
granted her by the Constitution to suppress or stamp out such
violence. The State, acting through the Government, is not precluded
from taking pre-emptive action against threats to its existence if,
though still nascent, they are perceived as apt to become serious and
direct. Protection of the people is the essence of the duty of
government. The preservation of the State — the fruition of the
people's sovereignty — is an obligation in the highest order. The
President, sworn to preserve and defend the Constitution and to see
the faithful execution the laws, cannot shirk from that
responsibility.
We cannot also lose sight of the fact
that the country is only now beginning to recover from the hardships
brought about by the plunder of the economy attributed to the
Marcoses and their close associates and relatives, many of whom are
still here in the Philippines in a position to destabilize the
country, while the Government has barely scratched the surface, so to
speak, in its efforts to recover the enormous wealth stashed away by
the Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the excessive
foreign borrowing during the Marcos regime, which stifles and
stagnates development and is one of the root causes of widespread
poverty and all its attendant ills. The resulting precarious state of
our economy is of common knowledge and is easily within the ambit of
judicial notice.
The President has determined that the
destabilization caused by the return of the Marcoses would wipe away
the gains achieved during the past few years and lead to total
economic collapse. Given what is within our individual and common
knowledge of the state of the economy, we cannot argue with that
determination.
WHEREFORE, and it being our
well-considered opinion that the President did not act arbitrarily or
with grave abuse of discretion in determining that the return of
former President Marcos and his family at the present time and under
present circumstances poses a serious threat to national interest and
welfare and in prohibiting their return to the Philippines, the
instant petition is hereby DISMISSED.
SO ORDERED.
Narvasa, Melencio-Herrera, Gancayco,
Griño-Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.