Escolar Documentos
Profissional Documentos
Cultura Documentos
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* EN BANC.
669
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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.
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672
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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 checknot
to supplantthe 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
673
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674
675
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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
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
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677
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678
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for Congress to enact laws that may restrict the right to travel in
the interest of national security, public safety or public health. I
do not, therefore, accept the petitioners submission that, in the
absence of enabling legislation, the Philippine Government is
powerless to restrict travel even when such restriction is
demanded by national security, public safety or public health. The
power of the State, in particular cases, to restrict travel of its
citizens finds abundant support in the police power of the State,
which may be exercised to preserve and maintain government as
well as promote the general welfare of the greatest number of
people. And yet, the power of the State, acting through a
government in authority at any given time, to restrict travel, even
if founded on police power, cannot be absolute and unlimited
under all circumstances, much less, can it be arbitrary and
irrational.
679
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680
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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
leave that determination solely to the Chief Executive. The Court
itself must be content that the threat is not only clear, but more
so, present.
CORTS, J.:
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The Petition
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The Issue
684
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Article 12
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686
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688
Executive Power
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_______________
691
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693
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697
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700
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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
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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
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713
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I was the one who, in the open hearing held on June 27,
1989, asked the Solicitor General if the government was
prepared to prove the justification for opposing the herein
petition, i.e., that it had not acted arbitrarily. He said it
was. Accordingly, the Court, appreciating the classified
nature of the information expected, scheduled a closed-door
hearing on July 25, 1988. The Solicitor General and three
representatives from the military appeared for the
respondents, together with former Senator Arturo M.
Tolentino, representing the petitioners.
In about two hours of briefing, the government failed
dismally to show that the return of Marcos dead or alive
would pose a threat to the national security as it had
alleged. The fears expressed by its representatives were
based on mere conjectures of political and economic
destabilization without any single piece of concrete
evidence to back up their apprehensions.
Amazingly, however, the majority has come to the
conclusion that there exist factual bases for the
Presidents decision to bar Marcoss return. That is not my
recollection of the impressions of the Court after that
hearing.
In holding that the President of the Philippines has
residual powers in addition to the specific powers granted
by the Constitution, the Court is taking a great leap
backward and reinstating the discredited doctrine
announced in Planas v. Gil (67 Phil. 62). This does not
square with the announced policy of the Constitutional
Commission, which was precisely to limit
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
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718
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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
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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
except in the interest of national security,
4
public safety, or public
health, as may be provided by law.
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1 Decision, 4.
2 Seesupra,1-4.
3 Supra,2.
4 CONST., art. III, sec. 6.
723
And finally:
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724
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I am not persuaded.
I.
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7 Supra,21-22.
* But see Cruz, J., Dissenting.
8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
9 Republic v. Quasha, No. L-30299, August 17, 1972, 46 SCRA 160, 169.
10 CONST.,supra.
11 Supra.
725
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726
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727
II.
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21 Supra.
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22 Supra,22.
23 See CONST. (1987), art. VII, sec. 18, supra.
** Abraham (Ditto) Sarmiento, Jr., then Editor-in-Chief, Philippine
Collegian (1975-1976), 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
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25
o0o
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