Professional Documents
Culture Documents
*
G.R. No. 88211.September 15, 1989.
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* EN BANC.
669
which treats only of the liberty of abode and the right to travel,
but it is our wellconsidered 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)].
670
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671
Same Same Same Same The President has the power under
the Constitution to bar the Marcoses from returning to our country.
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 Presidents power to
bar the Marcoses from returning to the Philippines, rather, it
appeals to the Presidents 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.
672
673
674
675
Same Same Same Same The Court has the last word when
it comes to Constitutional liberties.There is also no disrespect
for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation
and defense of which all of us in Government, the President and
Congress included, are sworn to participate. Significantly, the
President herself has stated that the Court has the last word
when it comes to constitutional liberties and that she would abide
by our decision.
676
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critics of Mr. Marcos (the main petitioner) and his use of the
political question doctrine. The Constitution was accordingly
amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to
the political question doctrine. We are compelled to decide what
would have been nonjusticeable under our decisions interpreting
earlier fundamental charters. This is not to state that there can
be no more political questions which we may refuse to resolve.
There are still some political questions which only the President,
Congress, or a plebiscite may decide. Definitely, the issue before
us is not one of them.
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transgresses the peace and imperils public safety. But the denial
of travel papers is not one of those powers
677
678
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679
680
681
question that emerges is: Has it been proved that Marcos, or his
return, will, in fact, interpose a threat to the national security,
public safety, or public health? What appears in the records are
vehement insistences that Marcos does pose a threat to the
national goodand yet, at the same time, we have persistent
claims, made by the military top brass during the lengthy closed
door hearing on July 25, 1989, that this Government will not fall
should the former first family in exile step on Philippine soil.
Which is which? At any rate, it is my opinion that we can not
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CORTS, J.:
682
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The Petition
683
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The Issue
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684
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685
Article 12
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686
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688
Executive Power
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690
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_______________
691
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693
696
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697
698
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_______________
700
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704
x x x x x x x x x
It is a wellsettled doctrine that political questions are not
within the province of the judiciary, except to the extent that
power to deal with such questions has been conferred on the
courts by express constitutional or statutory provisions. It is not
so easy, however, to define the phrase political question, nor to
determine what matters fall within its scope. It is frequently used
to designate all questions that lie outside the scope of the judicial
power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive
branch of the government.
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705
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of them.
The Constitution requires the Court to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction.
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present
evidence. Unfortunately, considerations of national security
do not readily lend themselves to the presentation of proof
before a court of justice. The vital information essential to
an objective determination is usually highly classified and
it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93
[1905]), the Court was faced with a similar situation. It
posed a rhetorical question. If after investigating conditions
in the Archipelago or any part thereof, the President finds
that public safety requires the suspension of the privilege
of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such
conditions exist?
In the effort to follow the grave abuse of discretion
formula in the second paragraph of Section 1, Article VIII
of the Constitution, the court granted the Solicitor
Generals offer that the military give us a closed door
factual briefing with a lawyer for the petitioners and a
lawyer for the respondents present.
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How can this Court determine the factual basis in order that it
can ascertain whether or not the president acted arbitrarily in
suspending the writ when, in the truthful words of Montenegro,
with its very limited machinery [it] cannot be in better position
[than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer
is obvious. It must rely on the Executive Branch which has the
appropriate civil and military machinery for the facts. This was
the method which had to be used in Lansang. This Court relied
heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court,
relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the
Executive Branch supplied information to support its position and
this
710
the Marcos of today and, in fact, are led by people who have
always opposed him. If we use the problems of Government
as excuses for denying a persons right to come home, we
will never run out of justifying reasons. These problems or
others like them will always be with us.
Significantly, we do not have to look into the factual
bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of
discretion. Nor are we forced to fall back upon judicial
notice of the implications of a Marcos return to his home to
buttress a conclusion.
In the first place, there has never been a pronouncement
by the President that a clear and present danger to
national security and public safety will arise if Mr. Marcos
and his family are allowed to return to the Philippines. It
was only after the present petition was filed that the
alleged danger to national security and public safety
conveniently surfaced 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. (See page 7,
711
715
716
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I dissent. As I see it, the core issue in this case is, which
right will prevail in the conflict between the right of a
Filipino, Ferdinand E. Marcos, to return to the Philippines,
and the right
718
719
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720
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721
1. Mr. Marcos5
is a Filipino and, as such, entitled to
return to, die and be buried in this country
2. respondents have not shown any hard evidence or
convincing proof why his right as a Filipino to
return should be denied him. All we have are
general conclusions of national security and
public safety in avoidance of a specific
demandable and enforceable constitutional and
basic human right to return
3. the issue of Marcos return to the Philippines,
perhaps more than any issue today, requires of all
members of the Court, in what appears to be an
extended political contest, the cold neutrality of an
impartial judge. It is only thus that we fortify the
independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and
only to the Constitution.
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722
Sec. 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
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1 Decision, 4.
2 Seesupra,14.
3 Supra,2.
4 CONST., art. III, sec. 6.
723
And finally:
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724
I am not persuaded.
I.
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7 Supra,2122.
* But see Cruz, J., Dissenting.
8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
9 Republic v. Quasha, No. L30299, August 17, 1972, 46 SCRA 160, 169.
10 CONST.,supra.
11 Supra.
725
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_______________
726
_______________
727
II.
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21 Supra.
22 Supra,22.
23 See CONST. (1987), art. VII, sec. 18, supra.
** Abraham (Ditto) Sarmiento, Jr., then EditorinChief, Philippine
Collegian (19751976), official student organ of the University of the
Philippines. He was detained in the military stockade for common
criminals from January to August, 1976.
728
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729
25
abode. We would have betrayed our own ideals if we
denied Marcos his rights. It is his constitutional right, a
right that can not be abridged by personal hatred, fear,
founded or unfounded, and by speculations of the mans
capacity to stir trouble. Now that the shoe is on the
other foot, let no more of human rights violations be
repeated against any one, friend or foe. In a democratic
framework, there is no such thing as getting even.
The majority started this inquiry on the question of
power. I hold that the President, under the present
Constitution and existing laws, does not have it.
Mandamus, I submit, lies.
Petition dismissed.
o0o
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