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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 17122 February 27, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
ANG TANG HO, defendant-appellant.

Williams & Ferrier for appellant.

Acting Attorney-General Tuason for appellee.

JOHNS, J.:

At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act
penalizing the monopoly and holding of, and speculation in, palay, rice, and corn under
extraordinary circumstances, regulating the distribution and sale thereof, and authorizing the
Governor-General, with the consent of the Council of State, to issue the necessary rules and
regulations therefor, and making an appropriation for this purpose," the material provisions of which
are as follows:

Section 1. The Governor-General is hereby authorized, whenever, for any cause,

conditions arise resulting in an extraordinary rise in the price of palay, rice or corn, to issue
and promulgate, with the consent of the Council of State, temporary rules and emergency
measures for carrying out the purpose of this Act, to wit:

(a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn.

(b) To establish and maintain a government control of the distribution or sale of the
commodities referred to or have such distribution or sale made by the Government itself.

(c) To fix, from time to time the quantities of palay rice, or corn that a company or individual
may acquire, and the maximum sale price that the industrial or merchant may demand.

(d) . . .

SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other manner obstruct the
production or milling of palay, rice or corn for the purpose of raising the prices thereof; to
corner or hoard said products as defined in section three of this Act; . . .

Section 3 defines what shall constitute a monopoly or hoarding of palay, rice or corn within the
meaning of this Act, but does not specify the price of rice or define any basic for fixing the price.

SEC. 4. The violations of any of the provisions of this Act or of the regulations, orders and
decrees promulgated in accordance therewith shall be punished by a fine of not more than
five thousands pesos, or by imprisonment for not more than two years, or both, in the
discretion of the court: Provided, That in the case of companies or corporations the
manager or administrator shall be criminally liable.
 SEC. 7. At any time that the Governor-General, with the consent of the Council of State,
shall consider that the public interest requires the application of the provisions of this Act,
he shall so declare by proclamation, and any provisions of other laws inconsistent herewith
shall from then on be temporarily suspended.

Upon the cessation of the reasons for which such proclamation was issued, the Governor-
General, with the consent of the Council of State, shall declare the application of this Act
to have likewise terminated, and all laws temporarily suspended by virtue of the same shall
again take effect, but such termination shall not prevent the prosecution of any proceedings
or cause begun prior to such termination, nor the filing of any proceedings for an offense
committed during the period covered by the Governor-General's proclamation.

August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should
be sold.

August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the
sale of rice at an excessive price as follows:

The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the
Governor-General of the Philippines, dated the 1st of August, 1919, in relation with the
provisions of sections 1, 2 and 4 of Act No. 2868, committed as follows:

That on or about the 6th day of August, 1919, in the city of Manila, Philippine Islands, the
said Ang Tang Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of
rice at the price of eighty centavos (P.80), which is a price greater than that fixed by
Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August,
1919, under the authority of section 1 of Act No. 2868. Contrary to law.

Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to
pay a fine of P500, from which he appealed to this court, claiming that the lower court erred in
finding Executive Order No. 53 of 1919, to be of any force and effect, in finding the accused guilty
of the offense charged, and in imposing the sentence.

The official records show that the Act was to take effect on its approval; that it was approved July
30, 1919; that the Governor-General issued his proclamation on the 1st of August, 1919; and that
the law was first published on the 13th of August, 1919; and that the proclamation itself was first
published on the 20th of August, 1919.

The question here involves an analysis and construction of Act No. 2868, in so far as it authorizes
the Governor-General to fix the price at which rice should be sold. It will be noted that section 1
authorizes the Governor-General, with the consent of the Council of State, for any cause resulting
in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate temporary rules
and emergency measures for carrying out the purposes of the Act. By its very terms, the
promulgation of temporary rules and emergency measures is left to the discretion of the Governor-
General. The Legislature does not undertake to specify or define under what conditions or for what
reasons the Governor-General shall issue the proclamation, but says that it may be issued "for any
cause," and leaves the question as to what is "any cause" to the discretion of the Governor-
General. The Act also says: "For any cause, conditions arise resulting in an extraordinary rise in
the price of palay, rice or corn." The Legislature does not specify or define what is "an extraordinary
rise." That is also left to the discretion of the Governor-General. The Act also says that the
Governor-General, "with the consent of the Council of State," is authorized to issue and promulgate
"temporary rules and emergency measures for carrying out the purposes of this Act." It does not
specify or define what is a temporary rule or an emergency measure, or how long such temporary
rules or emergency measures shall remain in force and effect, or when they shall take effect. That
is to say, the Legislature itself has not in any manner specified or defined any basis for the order,
but has left it to the sole judgement and discretion of the Governor-General to say what is or what
is not "a cause," and what is or what is not "an extraordinary rise in the price of rice," and as to
what is a temporary rule or an emergency measure for the carrying out the purposes of the Act.
Under this state of facts, if the law is valid and the Governor-General issues a proclamation fixing
the minimum price at which rice should be sold, any dealer who, with or without notice, sells rice
at a higher price, is a criminal. There may not have been any cause, and the price may not have
been extraordinary, and there may not have been an emergency, but, if the Governor-General
found the existence of such facts and issued a proclamation, and rice is sold at any higher price,
the seller commits a crime.

By the organic law of the Philippine Islands and the Constitution of the United States all powers
are vested in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the
law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature
has no authority to execute or construe the law, the Executive has no authority to make or construe
the law, and the Judiciary has no power to make or execute the law. Subject to the Constitution
only, the power of each branch is supreme within its own jurisdiction, and it is for the Judiciary only
to say when any Act of the Legislature is or is not constitutional. Assuming, without deciding, that
the Legislature itself has the power to fix the price at which rice is to be sold, can it delegate that
power to another, and, if so, was that power legally delegated by Act No. 2868? In other words,
does the Act delegate legislative power to the Governor-General? By the Organic Law, all
Legislative power is vested in the Legislature, and the power conferred upon the Legislature to
make laws cannot be delegated to the Governor-General, or any one else. The Legislature cannot
delegate the legislative power to enact any law. If Act no 2868 is a law unto itself and within itself,
and it does nothing more than to authorize the Governor-General to make rules and regulations to
carry the law into effect, then the Legislature itself created the law. There is no delegation of power
and it is valid. On the other hand, if the Act within itself does not define crime, and is not a law, and
some legislative act remains to be done to make it a law or a crime, the doing of which is vested
in the Governor-General, then the Act is a delegation of legislative power, is unconstitutional and
void.

The Supreme Court of the United States in what is known as the Granger Cases (94 U.S., 183-
187; 24 L. ed., 94), first laid down the rule:

Railroad companies are engaged in a public employment affecting the public interest and,
under the decision in Munn vs. Ill., ante, 77, are subject to legislative control as to their
rates of fare and freight unless protected by their charters.

The Illinois statute of Mar. 23, 1874, to establish reasonable maximum rates of charges for
the transportation of freights and passengers on the different railroads of the State is not
void as being repugnant to the Constitution of the United States or to that of the State.

It was there for the first time held in substance that a railroad was a public utility, and that, being a
public utility, the State had power to establish reasonable maximum freight and passenger rates.
This was followed by the State of Minnesota in enacting a similar law, providing for, and
empowering, a railroad commission to hear and determine what was a just and reasonable rate.
The constitutionality of this law was attacked and upheld by the Supreme Court of Minnesota in a
learned and exhaustive opinion by Justice Mitchell, in the case of State vs. Chicago, Milwaukee &
St. Paul ry. Co. (38 Minn., 281), in which the court held:

Regulations of railway tariffs — Conclusiveness of commission's tariffs. — Under Laws

1887, c. 10, sec. 8, the determination of the railroad and warehouse commission as to what
are equal and reasonable fares and rates for the transportation of persons and property by
a railway company is conclusive, and, in proceedings by mandamus to compel compliance
with the tariff of rates recommended and published by them, no issue can be raised or
inquiry had on that question.
 Same — constitution — Delegation of power to commission. — The authority thus given
to the commission to determine, in the exercise of their discretion and judgement, what are
equal and reasonable rates, is not a delegation of legislative power.

It will be noted that the law creating the railroad commission expressly provides —

That all charges by any common carrier for the transportation of passengers and property
shall be equal and reasonable.

With that as a basis for the law, power is then given to the railroad commission to investigate all
the facts, to hear and determine what is a just and reasonable rate. Even then that law does not
make the violation of the order of the commission a crime. The only remedy is a civil proceeding.
It was there held —

That the legislative itself has the power to regulate railroad charges is now too well settled
to require either argument or citation of authority.

The difference between the power to say what the law shall be, and the power to adopt
rules and regulations, or to investigate and determine the facts, in order to carry into effect
a law already passed, is apparent. The true distinction is between the delegation of power
to make the law, which necessarily involves a discretion as to what it shall be, and the
conferring an authority or discretion to be exercised under and in pursuance of the law.

The legislature enacts that all freights rates and passenger fares should be just and
reasonable. It had the undoubted power to fix these rates at whatever it deemed equal and
reasonable.

They have not delegated to the commission any authority or discretion as to what the law
shall be, — which would not be allowable, — but have merely conferred upon it an authority
and discretion, to be exercised in the execution of the law, and under and in pursuance of
it, which is entirely permissible. The legislature itself has passed upon the expediency of
the law, and what is shall be. The commission is intrusted with no authority or discretion
upon these questions. It can neither make nor unmake a single provision of law. It is merely
charged with the administration of the law, and with no other power.

The delegation of legislative power was before the Supreme Court of Wisconsin in
Dowling vs. Lancoshire Ins. Co. (92 Wis., 63). The opinion says:

"The true distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done; to
the latter no valid objection can be made."

The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy
should contain, so that it could be put in use as a uniform policy required to take the place of all
others, without the determination of the insurance commissioner in respect to maters involving the
exercise of a legislative discretion that could not be delegated, and without which the act could not
possibly be put in use as an act in confirmity to which all fire insurance policies were required to
be issued.

The result of all the cases on this subject is that a law must be complete, in all its terms and
provisions, when it leaves the legislative branch of the government, and nothing must be left to the
judgement of the electors or other appointee or delegate of the legislature, so that, in form and
substance, it is a law in all its details in presenti, but which may be left to take effect in futuro, if
necessary, upon the ascertainment of any prescribed fact or event.
The delegation of legislative power was before the Supreme Court in United States vs. Grimaud
(220 U.S., 506; 55 L. ed., 563), where it was held that the rules and regulations of the Secretary of
Agriculture as to a trespass on government land in a forest reserve were valid constitutional. The
Act there provided that the Secretary of Agriculture ". . . may make such rules and regulations and
establish such service as will insure the object of such reservations; namely, to regulate their
occupancy and use, and to preserve the forests thereon from destruction; and any violation of the
provisions of this act or such rules and regulations shall be punished, . . ."

The brief of the United States Solicitor-General says:

In refusing permits to use a forest reservation for stock grazing, except upon stated terms
or in stated ways, the Secretary of Agriculture merely assert and enforces the proprietary
right of the United States over land which it owns. The regulation of the Secretary,
therefore, is not an exercise of legislative, or even of administrative, power; but is an
ordinary and legitimate refusal of the landowner's authorized agent to allow person having
no right in the land to use it as they will. The right of proprietary control is altogether different
from governmental authority.

The opinion says:

From the beginning of the government, various acts have been passed conferring upon
executive officers power to make rules and regulations, — not for the government of their
departments, but for administering the laws which did govern. None of these statutes could
confer legislative power. But when Congress had legislated power. But when Congress
had legislated and indicated its will, it could give to those who were to act under such
general provisions "power to fill up the details" by the establishment of administrative rules
and regulations, the violation of which could be punished by fine or imprisonment fixed by
Congress, or by penalties fixed by Congress, or measured by the injury done.

That "Congress cannot delegate legislative power is a principle universally recognized as

vital to the integrity and maintenance of the system of government ordained by the
Constitution."

If, after the passage of the act and the promulgation of the rule, the defendants drove and
grazed their sheep upon the reserve, in violation of the regulations, they were making an
unlawful use of the government's property. In doing so they thereby made themselves
liable to the penalty imposed by Congress.

The subjects as to which the Secretary can regulate are defined. The lands are set apart as a
forest reserve. He is required to make provisions to protect them from depredations and from
harmful uses. He is authorized 'to regulate the occupancy and use and to preserve the forests from
destruction.' A violation of reasonable rules regulating the use and occupancy of the property is
made a crime, not by the Secretary, but by Congress."

The above are leading cases in the United States on the question of delegating legislative power.
It will be noted that in the "Granger Cases," it was held that a railroad company was a public
corporation, and that a railroad was a public utility, and that, for such reasons, the legislature had
the power to fix and determine just and reasonable rates for freight and passengers.

The Minnesota case held that, so long as the rates were just and reasonable, the legislature could
delegate the power to ascertain the facts and determine from the facts what were just and
reasonable rates,. and that in vesting the commission with such power was not a delegation of
legislative power.

The Wisconsin case was a civil action founded upon a "Wisconsin standard policy of fire
insurance," and the court held that "the act, . . . wholly fails to provide definitely and clearly what
the standard policy should contain, so that it could be put in use as a uniform policy required to
take the place of all others, without the determination of the insurance commissioner in respect to
matters involving the exercise of a legislative discretion that could not be delegated."

The case of the United States Supreme Court, supra dealt with rules and regulations which were
promulgated by the Secretary of Agriculture for Government land in the forest reserve.

These decisions hold that the legislative only can enact a law, and that it cannot delegate it
legislative authority.

The line of cleavage between what is and what is not a delegation of legislative power is pointed
out and clearly defined. As the Supreme Court of Wisconsin says:

That no part of the legislative power can be delegated by the legislature to any other
department of the government, executive or judicial, is a fundamental principle in
constitutional law, essential to the integrity and maintenance of the system of government
established by the constitution.

Where an act is clothed with all the forms of law, and is complete in and of itself, it may be
provided that it shall become operative only upon some certain act or event, or, in like
manner, that its operation shall be suspended.

The legislature cannot delegate its power to make a law, but it can make a law to delegate
a power to determine some fact or state of things upon which the law makes, or intends to
make, its own action to depend.

The Village of Little Chute enacted an ordinance which provides:

All saloons in said village shall be closed at 11 o'clock P.M. each day and remain closed
until 5 o'clock on the following morning, unless by special permission of the president.

Construing it in 136 Wis., 526; 128 A. S. R., 1100,1 the Supreme Court of that State says:

We regard the ordinance as void for two reasons; First, because it attempts to confer
arbitrary power upon an executive officer, and allows him, in executing the ordinance, to
make unjust and groundless discriminations among persons similarly situated; second,
because the power to regulate saloons is a law-making power vested in the village board,
which cannot be delegated. A legislative body cannot delegate to a mere administrative
officer power to make a law, but it can make a law with provisions that it shall go into effect
or be suspended in its operations upon the ascertainment of a fact or state of facts by an
administrative officer or board. In the present case the ordinance by its terms gives power
to the president to decide arbitrary, and in the exercise of his own discretion, when a saloon
shall close. This is an attempt to vest legislative discretion in him, and cannot be sustained.

The legal principle involved there is squarely in point here.

It must be conceded that, after the passage of act No. 2868, and before any rules and regulations
were promulgated by the Governor-General, a dealer in rice could sell it at any price, even at a
peso per "ganta," and that he would not commit a crime, because there would be no law fixing the
price of rice, and the sale of it at any price would not be a crime. That is to say, in the absence of
a proclamation, it was not a crime to sell rice at any price. Hence, it must follow that, if the defendant
committed a crime, it was because the Governor-General issued the proclamation. There was no
act of the Legislature making it a crime to sell rice at any price, and without the proclamation, the
sale of it at any price was to a crime.
The Executive order2 provides:

(5) The maximum selling price of palay, rice or corn is hereby fixed, for the time being as
follows:

In Manila —

Palay at P6.75 per sack of 57½ kilos, or 29 centavos per ganta.

Rice at P15 per sack of 57½ kilos, or 63 centavos per ganta.

Corn at P8 per sack of 57½ kilos, or 34 centavos per ganta.

In the provinces producing palay, rice and corn, the maximum price shall be the Manila
price less the cost of transportation from the source of supply and necessary handling
expenses to the place of sale, to be determined by the provincial treasurers or their
deputies.

In provinces, obtaining their supplies from Manila or other producing provinces, the
maximum price shall be the authorized price at the place of supply or the Manila price as
the case may be, plus the transportation cost, from the place of supply and the necessary
handling expenses, to the place of sale, to be determined by the provincial treasurers or
their deputies.

(6) Provincial treasurers and their deputies are hereby directed to communicate with, and
execute all instructions emanating from the Director of Commerce and Industry, for the
most effective and proper enforcement of the above regulations in their respective
localities.

The law says that the Governor-General may fix "the maximum sale price that the industrial or
merchant may demand." The law is a general law and not a local or special law.

The proclamation undertakes to fix one price for rice in Manila and other and different prices in
other and different provinces in the Philippine Islands, and delegates the power to determine the
other and different prices to provincial treasurers and their deputies. Here, then, you would have a
delegation of legislative power to the Governor-General, and a delegation by him of that power to
provincial treasurers and their deputies, who "are hereby directed to communicate with, and
execute all instructions emanating from the Director of Commerce and Industry, for the most
effective and proper enforcement of the above regulations in their respective localities." The
issuance of the proclamation by the Governor-General was the exercise of the delegation of a
delegated power, and was even a sub delegation of that power.

Assuming that it is valid, Act No. 2868 is a general law and does not authorize the Governor-
General to fix one price of rice in Manila and another price in Iloilo. It only purports to authorize him
to fix the price of rice in the Philippine Islands under a law, which is General and uniform, and not
local or special. Under the terms of the law, the price of rice fixed in the proclamation must be the
same all over the Islands. There cannot be one price at Manila and another at Iloilo. Again, it is a
mater of common knowledge, and of which this court will take judicial notice, that there are many
kinds of rice with different and corresponding market values, and that there is a wide range in the
price, which varies with the grade and quality. Act No. 2868 makes no distinction in price for the
grade or quality of the rice, and the proclamation, upon which the defendant was tried and
convicted, fixes the selling price of rice in Manila "at P15 per sack of 57½ kilos, or 63 centavos per
ganta," and is uniform as to all grades of rice, and says nothing about grade or quality. Again, it
will be noted that the law is confined to palay, rice and corn. They are products of the Philippine
Islands. Hemp, tobacco, coconut, chickens, eggs, and many other things are also products. Any
law which single out palay, rice or corn from the numerous other products of the Islands is not
general or uniform, but is a local or special law. If such a law is valid, then by the same principle,
the Governor-General could be authorized by proclamation to fix the price of meat, eggs, chickens,
coconut, hemp, and tobacco, or any other product of the Islands. In the very nature of things, all of
that class of laws should be general and uniform. Otherwise, there would be an unjust
discrimination of property rights, which, under the law, must be equal and inform. Act No. 2868 is
nothing more than a floating law, which, in the discretion and by a proclamation of the Governor-
General, makes it a floating crime to sell rice at a price in excess of the proclamation, without
regard to grade or quality.

When Act No. 2868 is analyzed, it is the violation of the proclamation of the Governor-General
which constitutes the crime. Without that proclamation, it was no crime to sell rice at any price. In
other words, the Legislature left it to the sole discretion of the Governor-General to say what was
and what was not "any cause" for enforcing the act, and what was and what was not "an
extraordinary rise in the price of palay, rice or corn," and under certain undefined conditions to fix
the price at which rice should be sold, without regard to grade or quality, also to say whether a
proclamation should be issued, if so, when, and whether or not the law should be enforced, how
long it should be enforced, and when the law should be suspended. The Legislature did not specify
or define what was "any cause," or what was "an extraordinary rise in the price of rice, palay or
corn," Neither did it specify or define the conditions upon which the proclamation should be issued.
In the absence of the proclamation no crime was committed. The alleged sale was made a crime,
if at all, because the Governor-General issued the proclamation. The act or proclamation does not
say anything about the different grades or qualities of rice, and the defendant is charged with the
sale "of one ganta of rice at the price of eighty centavos (P0.80) which is a price greater than that
fixed by Executive order No. 53."

We are clearly of the opinion and hold that Act No. 2868, in so far as it undertakes to authorized
the Governor-General in his discretion to issue a proclamation, fixing the price of rice, and to make
the sale of rice in violation of the price of rice, and to make the sale of rice in violation of the
proclamation a crime, is unconstitutional and void.

It may be urged that there was an extraordinary rise in the price of rice and profiteering, which
worked a severe hardship on the poorer classes, and that an emergency existed, but the question
here presented is the constitutionality of a particular portion of a statute, and none of such matters
is an argument for, or against, its constitutionality.

The Constitution is something solid, permanent an substantial. Its stability protects the life, liberty
and property rights of the rich and the poor alike, and that protection ought not to change with the
wind or any emergency condition. The fundamental question involved in this case is the right of
the people of the Philippine Islands to be and live under a republican form of government. We
make the broad statement that no state or nation, living under republican form of government,
under the terms and conditions specified in Act No. 2868, has ever enacted a law delegating the
power to any one, to fix the price at which rice should be sold. That power can never be delegated
under a republican form of government.

In the fixing of the price at which the defendant should sell his rice, the law was not dealing with
government property. It was dealing with private property and private rights, which are sacred
under the Constitution. If this law should be sustained, upon the same principle and for the same
reason, the Legislature could authorize the Governor-General to fix the price of every product or
commodity in the Philippine Islands, and empower him to make it a crime to sell any product at
any other or different price.

It may be said that this was a war measure, and that for such reason the provision of the
Constitution should be suspended. But the Stubborn fact remains that at all times the judicial power
was in full force and effect, and that while that power was in force and effect, such a provision of
the Constitution could not be, and was not, suspended even in times of war. It may be claimed that
during the war, the United States Government undertook to, and did, fix the price at which wheat
and flour should be bought and sold, and that is true. There, the United States had declared war,
and at the time was at war with other nations, and it was a war measure, but it is also true that in
doing so, and as a part of the same act, the United States commandeered all the wheat and flour,
and took possession of it, either actual or constructive, and the government itself became the
owner of the wheat and flour, and fixed the price to be paid for it. That is not this case. Here the
rice sold was the personal and private property of the defendant, who sold it to one of his
customers. The government had not bought and did not claim to own the rice, or have any interest
in it, and at the time of the alleged sale, it was the personal, private property of the defendant. It
may be that the law was passed in the interest of the public, but the members of this court have
taken on solemn oath to uphold and defend the Constitution, and it ought not to be construed to
meet the changing winds or emergency conditions. Again, we say that no state or nation under a
republican form of government ever enacted a law authorizing any executive, under the conditions
states, to fix the price at which a price person would sell his own rice, and make the broad
statement that no decision of any court, on principle or by analogy, will ever be found which
sustains the constitutionality of the particular portion of Act No. 2868 here in question. By the terms
of the Organic Act, subject only to constitutional limitations, the power to legislate and enact laws
is vested exclusively in the Legislative, which is elected by a direct vote of the people of the
Philippine Islands. As to the question here involved, the authority of the Governor-General to fix
the maximum price at which palay, rice and corn may be sold in the manner power in violation of
the organic law.

This opinion is confined to the particular question here involved, which is the right of the Governor-
General, upon the terms and conditions stated in the Act, to fix the price of rice and make it a crime
to sell it at a higher price, and which holds that portions of the Act unconstitutional. It does not
decide or undertake to construe the constitutionality of any of the remaining portions of the Act.

The judgment of the lower court is reversed, and the defendant discharged. So ordered.

Araullo, C.J., Johnson, Street and Ostrand, JJ., concur.

Romualdez, J., concurs in the result.

Separate Opinions

MALCOLM, J., concurring:

I concur in the result for reasons which reach both the facts and the law. In the first place, as to
the facts, — one cannot be convicted ex post facto of a violation of a law and of an executive order
issued pursuant to the law, when the alleged violation thereof occurred on August 6, 1919, while
the Act of the Legislature in question was not published until August 13, 1919, and the order was
not published until August 20, 1919. In the second place, as to the law, — one cannot be convicted
of a violation of a law or of an order issued pursuant to the law when both the law and the order
fail to set up an ascertainable standard of guilt. (U.S. vs. Cohen Grocery Company [1921], 255
U.S., 81, holding section 4 of the Federal Food Control Act of August 10, 1917, as amended,
invalid.)

In order that there may not be any misunderstanding of our position, I would respectfully invite
attention to the decision of the United States Supreme Court in German Alliance Ins. Co. vs. Lewis
([1914, 233 U.S., 389), concerning the legislative regulation of the prices charged by business
affected with a public interest, and to another decision of the United States Supreme Court, that of
Marshall Field & Co. vs. Clark ([1892], 143 U.S., 649), which adopts as its own the principles laid
down in the case of Locke's Appeal ([1873], 72 Pa. St., 491), namely; "The Legislature cannot
delegate its power to make a law; but it can make a law to delegate a power to determine some
fact or state of things upon which the law makes, or intends to make, its own action depend. To
deny this would be to stop the wheels of government. There are many things upon which wise and
useful legislation must depend which cannot be known to the law-making power, and must,
therefore, be a subject of inquiry and determination outside of the halls of legislation."

Avanceña and Villamor, JJ., concur.

Footnotes

1 Village of Little Chute vs. Van Camp.

2 Executive Order No. 53, series of 1919.

#6

[G.R. No. 127685. July 23, 1998]

BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER

AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT
BARBERS, CARMENCITA REODICA, CESAR SARINO,
RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER andCHAIRMAN OF THE
COMMISSION ON AUDIT, respondents.

DECISION
PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to
prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis
considered as "the most comprehensive of rights and the right most valued by civilized
men."[1] Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two
important constitutional grounds, viz: one, it is a usurpation of the power of Congress
to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of
privacy. We grant the petition for the rights sought to be vindicated by the petitioner
need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and
reads as follows:

"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION

REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents
with the facility to conveniently transact business with basic service and
social security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and

efficiently identify persons seeking basic services on social security and
reduce, if not totally eradicate, fraudulent transactions and
misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic

services and social security providing agencies and other government
instrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:

SECTION 1. Establishment of a National Computerized Identification

Reference System. A decentralized Identification Reference System among
the key basic services and social security providers is hereby established.

SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency

Coordinating Committee (IACC) to draw-up the implementing guidelines and
oversee the implementation of the System is hereby created, chaired by the
Executive Secretary, with the following as members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator,
National Statistics Office Managing Director, National
Computer Center.

SEC. 3. Secretariat. The National Computer Center (NCC) is hereby

designated as secretariat to the IACC and as such shall provide
administrative and technical support to the IACC.

SEC. 4. Linkage Among Agencies. The Population Reference Number

(PRN) generated by the NSO shall serve as the common reference number
to establish a linkage among concerned agencies. The IACC Secretariat
shall coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in computer
application designs of their respective systems.

SEC. 5. Conduct of Information Dissemination Campaign. The Office of the

Press Secretary, in coordination with the National Statistics Office, the GSIS
and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social
Security Identification Reference.

SEC. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.

SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall
submit regular reports to the Office of the President, through the IACC, on
the status of implementation of this undertaking.

SEC. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our
Lord, Nineteen Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January
22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant
petition against respondents, then Executive Secretary Ruben Torres and the heads
of the government agencies, who as members of the Inter-Agency Coordinating
Committee, are charged with the implementation of A.O. No. 308. On April 8, 1997,
we issued a temporary restraining order enjoining its implementation.
Petitioner contends:

"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS
OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR

THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL
USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION."[2]

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD

WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE

IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. [3]

We now resolve.
I

As is usual in constitutional litigation, respondents raise the threshold issues

relating to the standing to sue of the petitioner and the justiciability of the case at
bar. More specifically, respondents aver that petitioner has no legal interest to uphold
and that the implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of the
requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a
usurpation of legislative power.[4] As taxpayer and member of the Government Service
Insurance System (GSIS), petitioner can also impugn the legality of the misalignment
of public funds and the misuse of GSIS funds to implement A.O. No. 308.[5]
The ripeness for adjudication of the petition at bar is not affected by the fact that
the implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople
assails A.O. No. 308 as invalid per se and as infirmed on its face. His action is not
premature for the rules yet to be promulgated cannot cure its fatal
defects. Moreover, the respondents themselves have started the implementation of
A.O. No. 308 without waiting for the rules. As early as January 19, 1997, respondent
Social Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card.[6] Respondent Executive Secretary
Torres has publicly announced that representatives from the GSIS and the SSS have
completed the guidelines for the national identification system.[7] All signals from the
respondents show their unswerving will to implement A.O. No. 308 and we need not
wait for the formality of the rules to pass judgment on its constitutionality. In this light,
the dissenters insistence that we tighten the rule on standing is not a commendable
stance as its result would be to throttle an important constitutional principle and a
fundamental right.
II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of identification
that is all-encompassing in scope, affects the life and liberty of every Filipino citizen
and foreign resident, and more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking
domain of Congress is understandable. The blurring of the demarcation line between
the power of the Legislature to make laws and the power of the Executive to execute
laws will disturb their delicate balance of power and cannot be allowed. Hence, the
exercise by one branch of government of power belonging to another will be given
a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not
indistinct. Legislative power is "the authority, under the Constitution, to make laws,
and to alter and repeal them."[8] The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the Congress of
the Philippines.[9] The grant of legislative power to Congress is broad, general and
comprehensive.[10] The legislative body possesses plenary power for all purposes of
civil government.[11] Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere.[12] In fine, except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters of general concern or
common interest.[13]
While Congress is vested with the power to enact laws, the President executes
the laws.[14] The executive power is vested in the President.[15] It is generally defined as
the power to enforce and administer the laws.[16] It is the power of carrying the laws into
practical operation and enforcing their due observance.[17]
As head of the Executive Department, the President is the Chief Executive. He
represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his department.[18] He has control over the executive
department, bureaus and offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and office, or interfere with
the discretion of its officials.[19] Corollary to the power of control, the President also has
the duty of supervising the enforcement of laws for the maintenance of general peace
and public order. Thus, he is granted administrative power over bureaus and offices
under his control to enable him to discharge his duties effectively.[20]
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs.[21] It enables the
President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents.[22] To this end, he can issue administrative orders,
rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a
subject that is not appropriate to be covered by an administrative order. An
administrative order is:
"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular
aspects of governmental operation in pursuance of his duties as administrative head
shall be promulgated in administrative orders."[23]

An administrative order is an ordinance issued by the President which relates to

specific aspects in the administrative operation of government. It must be in harmony
with the law and should be for the sole purpose of implementing the law and
carrying out the legislative policy.[24] We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of 1987. The Code
is a general law and "incorporates in a unified document the major structural,
functional and procedural principles of governance"[25] and "embodies changes in
administrative structures and procedures designed to serve the people." [26] The Code
is divided into seven (7) Books: Book I deals with Sovereignty and General
Administration, Book II with the Distribution of Powers of the three branches of
Government, Book III on the Office of the President, Book IV on the Executive Branch,
Book V on the Constitutional Commissions, Book VI on National Government
Budgeting, and Book VII on Administrative Procedure. These Books contain provisions
on the organization, powers and general administration of the executive, legislative
and judicial branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the organization and
functions of the Constitutional Commissions and other constitutional bodies, the rules
on the national government budget, as well as guidelines for the exercise by
administrative agencies of quasi-legislative and quasi-judicial powers. The Code
covers both the internal administration of government, i.e, internal organization,
personnel and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties outside
government.[27]
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National Computerized
Identification Reference System. Such a System requires a delicate adjustment of
various contending state policies-- the primacy of national security, the extent of
privacy interest against dossier-gathering by government, the choice of
policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308
involves the all-important freedom of thought. As said administrative order redefines
the parameters of some basic rights of our citizenry vis-a-vis the State as well as the
line that separates the administrative power of the President to make rules and the
legislative power of Congress, it ought to be evident that it deals with a subject that
should be covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law
because it confers no right, imposes no duty, affords no protection, and creates no
office. Under A.O. No. 308, a citizen cannot transact business with government
agencies delivering basic services to the people without the contemplated
identification card. No citizen will refuse to get this identification card for no one can
avoid dealing with government. It is thus clear as daylight that without the ID, a citizen
will have difficulty exercising his rights and enjoying his privileges.Given this reality,
the contention that A.O. No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of Congress to
make laws. This is contrary to the established approach defining the traditional limits
of administrative legislation. As well stated by Fisher: "x x x Many regulations
however, bear directly on the public. It is here that administrative legislation
must be restricted in its scope and application. Regulations are not supposed
to be a substitute for the general policy-making that Congress enacts in the form
of a public law. Although administrative regulations are entitled to respect, the
authority to prescribe rules and regulations is not an independent source of
power to make laws."[28]
III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still
it cannot pass constitutional muster as an administrative legislation because
facially itviolates the right to privacy. The essence of privacy is the "right to be let
alone."[29] In the 1965 case of Griswold v. Connecticut,[30] the United States Supreme
Court gave more substance to the right of privacy when it ruled that the right has a
constitutional foundation. It held that there is a right of privacy which can be found
within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, [31] viz:

"Specific guarantees in the Bill of Rights have penumbras formed by

emanations from these guarantees that help give them life and substance x
x x. Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers `in
any house' in time of peace without the consent of the owner is another facet
of that privacy. The Fourth Amendment explicitly affirms the `right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.' The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth
Amendment provides: `The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.'"

In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice,
Enrique Fernando, we held:
"xxx

The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully
it stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though.The
constitutional right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection.The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control of
the individual, in all aspects of his life, is the hallmark of the absolute state.
In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private sector-- protection, in
other words, of the dignity and integrity of the individual--has become
increasingly important as modern society has developed. All the forces of a
technological age --industrialization, urbanization, and organization--
operate to narrow the area of privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society.'"

Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution.[33] It is
expressly recognized in Section 3(1) of the Bill of Rights:

"Sec. 3. (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law."

Other facets of the right to privacy are protected in various provisions of the Bill of
Rights, viz:[34]

"Sec. 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.

Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.

x x x.

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, public safety, or public health, as may be provided by law.

x x x.
Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons" and punishes as actionable torts
several acts by a person of meddling and prying into the privacy of another. [35] It also
holds a public officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person,[36] and recognizes the privacy of
letters and other private communications.[37] The Revised Penal Code makes a crime
the violation of secrets by an officer,[38] the revelation of trade and industrial
secrets,[39] and trespass to dwelling.[40] Invasion of privacy is an offense in special
laws like the Anti-Wiretapping Law,[41] the Secrecy of Bank Deposit Act[42] and the
Intellectual Property Code.[43] The Rules of Court on privileged communication
likewise recognize the privacy of certain information.[44]
Unlike the dissenters, we prescind from the premise that the right to privacy
is a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provide our citizens and foreigners with the facility to
conveniently transact business with basic service and social security providers and
other government instrumentalities and (2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by persons seeking basic services. It
is debatable whether these interests are compelling enough to warrant the issuance
of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the
overbreadth of A.O. No. 308 which if implemented will put our people's right to
privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a linkage
among concerned agencies" through the use of "Biometrics Technology" and
"computer application designs."
Biometry or biometrics is "the science of the application of statistical methods
to biological facts; a mathematical analysis of biological data." [45] The term
"biometrics" has now evolved into a broad category of technologies which
provide precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics.[46] A physiological
characteristic is a relatively stable physical characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A behavioral characteristic is influenced by
the individual's personality and includes voice print, signature and keystroke.[47] Most
biometric identification systems use a card or personal identification number (PIN) for
initial identification. The biometric measurement is used to verify that the individual
holding the card or entering the PIN is the legitimate owner of the card or PIN.[48]
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an individual
number which is called a biocrypt. The biocrypt is stored in computer data
banks[49] and becomes a means of identifying an individual using a service. This
technology requires one's fingertip to be scanned every time service or access is
provided.[50] Another method is the retinal scan. Retinal scan technology employs
optical technology to map the capillary pattern of the retina of the eye. This technology
produces a unique print similar to a finger print. [51] Another biometric method is known
as the "artificial nose." This device chemically analyzes the unique combination of
substances excreted from the skin of people.[52] The latest on the list of biometric
achievements is the thermogram. Scientists have found that by taking pictures of a
face using infra-red cameras, a unique heat distribution pattern is seen. The different
densities of bone, skin, fat and blood vessels all contribute to the individual's personal
"heat signature."[53]
In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited to the
use of fingerprint to identify an individual. It is a new science that uses various
technologies in encoding any and all biological characteristics of an individual
for identification. It is noteworthy that A.O. No. 308 does not state what specific
biological characteristics and what particular biometrics technology shall be
used to identify people who will seek its coverage.Considering the banquet of
options available to the implementors of A.O. No. 308, the fear that it threatens
the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that
it does not state whether encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the "generation of
population data for development planning." [54] This is an admission that the PRN will
not be used solely for identification but for the generation of other data with remote
relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O.
No. 308 can give the government the roving authority to store and retrieve
information for a purpose other than the identification of the individual through
his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308
cannot be underplayed as the dissenters do. Pursuant to said administrative order,
an individual must present his PRN everytime he deals with a government agency to
avail of basic services and security. His transactions with the government agency will
necessarily be recorded-- whether it be in the computer or in the documentary file of
the agency. The individual's file may include his transactions for loan availments,
income tax returns, statement of assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the PRN, the better the chance
of building a huge and formidable information base through the electronic
linkage of the files.[55] The data may be gathered for gainful and useful
government purposes; but the existence of this vast reservoir of personal
information constitutes a covert invitation to misuse, a temptation that may be
too great for some of our authorities to resist.[56]
We can even grant, arguendo, that the computer data file will be limited to the
name, address and other basic personal information about the individual. [57] Even that
hospitable assumption will not save A.O. No. 308 from constitutional infirmity for
again said order does not tell us in clear and categorical terms how these
information gathered shall be handled. It does not provide who shall control and
access the data, under what circumstances and for what purpose. These factors
are essential to safeguard the privacy and guaranty the integrity of the
information.[58] Well to note, the computer linkage gives other government agencies
access to the information. Yet, there are no controls to guard against leakage of
information. When the access code of the control programs of the particular computer
system is broken, an intruder, without fear of sanction or penalty, can make use of the
data for whatever purpose, or worse, manipulate the data stored within the system. [59]
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed
for unequivocally specified purposes.[60] The lack of proper safeguards in this regard
of A.O. No. 308 may interfere with the individual's liberty of abode and travel by
enabling authorities to track down his movement; it may also enable unscrupulous
persons to access confidential information and circumvent the right against self-
incrimination; it may pave the way for "fishing expeditions" by government authorities
and evade the right against unreasonable searches and seizures.[61] The possibilities
of abuse and misuse of the PRN, biometrics and computer technology are
accentuated when we consider that the individual lacks control over what can
be read or placed on his ID, much less verify the correctness of the data
encoded.[62] They threaten the very abuses that the Bill of Rights seeks to
prevent.[63]
The ability of a sophisticated data center to generate a comprehensive cradle-to-
grave dossier on an individual and transmit it over a national network is one of the
most graphic threats of the computer revolution.[64] The computer is capable of
producing a comprehensive dossier on individuals out of information given at different
times and for varied purposes.[65] It can continue adding to the stored data and keeping
the information up to date. Retrieval of stored data is simple. When information of a
privileged character finds its way into the computer, it can be extracted together with
other data on the subject.[66] Once extracted, the information is putty in the hands of
any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions
would dismiss its danger to the right to privacy as speculative and hypothetical. Again,
we cannot countenance such a laidback posture. The Court will not be true to its role
as the ultimate guardian of the people's liberty if it would not immediately smother the
sparks that endanger their rights but would rather wait for the fire that could consume
them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the National ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of
a person's expectation of privacy depends on a two-part test: (1) whether by his
conduct, the individual has exhibited an expectation of privacy; and (2) whether this
expectation is one that society recognizes as reasonable.[67] The factual circumstances
of the case determines the reasonableness of the expectation. [68] However, other
factors, such as customs, physical surroundings and practices of a particular activity,
may serve to create or diminish this expectation.[69] The use of biometrics and computer
technology in A.O. No. 308 does not assure the individual of a reasonable expectation
of privacy.[70] As technology advances, the level of reasonably expected privacy
decreases.[71] The measure of protection granted by the reasonable expectation
diminishes as relevant technology becomes more widely accepted. [72] The security of
the computer data file depends not only on the physical inaccessibility of the file but
also on the advances in hardware and software computer technology. A.O. No. 308
is so widely drawn that a minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy this fatal
defect. Rules and regulations merely implement the policy of the law or order. On its
face, A.O. No. 308 gives the IACC virtually unfettered discretion to determine the
metes and bounds of the ID System.
Nor do our present laws provide adequate safeguards for
a reasonable expectation of privacy. Commonwealth Act No. 591 penalizes the
disclosure by any person of data furnished by the individual to the NSO with
imprisonment and fine.[73] Republic Act No. 1161 prohibits public disclosure of SSS
employment records and reports.[74] These laws, however,apply to records and data
with the NSO and the SSS. It is not clear whether they may be applied to data with the
other government agencies forming part of the National ID System. The need to clarify
the penal aspect of A.O. No. 308 is another reason why its enactment should be given
to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the
right of privacy by using the rational relationship test.[75] He stressed that the
purposes of A.O. No.308 are: (1) to streamline and speed
up the implementation of basic government services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate population data for development planning.
He concludes that these purposes justify the incursions into the right to privacy for the
means are rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid
police power measure. We declared that the law, in compelling a public officer to make
an annual report disclosing his assets and liabilities, his sources of income and
expenses, did not infringe on the individual's right to privacy. The law was enacted to
promote morality in public administration by curtailing and minimizing the opportunities
for official corruption and maintaining a standard of honesty in the public service. [78]
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a
statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently
detailed. The law is clear on what practices were prohibited and penalized, and it was
narrowly drawn to avoid abuses. In the case at bar, A.O. No. 308 may have been
impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for it is not
narrowly drawn. And we now hold that when the integrity of a fundamental right
is at stake, this court will give the challenged law, administrative order, rule or
regulation a stricter scrutiny. It will not do for the authorities to invoke the
presumption of regularity in the performance of official duties. Nor is itenough
for the authorities to prove that their act is not irrational for a basic right can be
diminished, if not defeated, even when the government does not act
irrationally. They must satisfactorily show the presence of compelling state
interests and that the law, rule, or regulation is narrowly drawn to preclude
abuses. This approach is demanded by the 1987 Constitution whose entire matrix is
designed to protect human rights and to prevent authoritarianism. In case of doubt,
the least we can do is to lean towards the stance that will not put in danger the rights
protected by the Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line.
In Whalen, the United States Supreme Court was presented with the question of
whether the State of New York could keep a centralized computer record of the names
and addresses of all persons who obtained certain drugs pursuant to a doctor's
prescription. The New York State Controlled Substances Act of 1972 required
physicians to identify patients obtaining prescription drugs enumerated in the statute,
i.e., drugs with a recognized medical use but with a potential for abuse, so that the
names and addresses of the patients can be recorded in a centralized computer file
of the State Department of Health. The plaintiffs, who were patients and doctors,
claimed that some people might decline necessary medication because of their fear
that the computerized data may be readily available and open to public disclosure;
and that once disclosed, it may stigmatize them as drug addicts. [80] The plaintiffs
alleged that the statute invaded a constitutionally protected zone of privacy, i.e, the
individual interest in avoiding disclosure of personal matters, and the interest in
independence in making certain kinds of important decisions. The U.S. Supreme Court
held that while an individual's interest in avoiding disclosure of personal matters is an
aspect of the right to privacy, the statute did not pose a grievous threat to establish a
constitutional violation. The Court found that the statute was necessary to aid in the
enforcement of laws designed to minimize the misuse of dangerous drugs. The
patient-identification requirement was a product of an orderly and rational
legislative decision made upon recommendation by a specially appointed
commission which held extensive hearings on the matter. Moreover, the statute
was narrowly drawn and contained numerous safeguards against
indiscriminate disclosure. The statute laid down the procedure and requirements for
the gathering, storage and retrieval of the information. It enumerated who were
authorized to access the data. It also prohibited public disclosure of the data by
imposing penalties for its violation. In view of these safeguards, the infringement of the
patients' right to privacy was justified by a valid exercise of police power. As we
discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court
is not per se against the use of computers to accumulate, store, process,
retrieve and transmit data to improve our bureaucracy. Computers work wonders
to achieve the efficiency which both government and private industry seek. Many
information systems in different countries make use of the computer to facilitate
important social objectives, such as better law enforcement, faster delivery of public
services, more efficient management of credit and insurance programs, improvement
of telecommunications and streamlining of financial activities. [81] Used wisely, data
stored in the computer could help good administration by making accurate and
comprehensive information for those who have to frame policy and make key
decisions.[82] The benefits of the computer has revolutionized information technology.
It developed the internet,[83] introduced the concept of cyberspace[84] and the information
superhighway where the individual, armed only with his personal computer, may surf
and search all kinds and classes of information from libraries and databases
connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and the
common good. It merely requires that the law be narrowly focused[85] and a compelling
interest justify such intrusions.[86] Intrusions into the right must be accompanied by
proper safeguards and well-defined standards to prevent unconstitutional invasions.
We reiterate that any law or order that invades individual privacy will be subjected by
this Court to strict scrutiny. The reason for this stance was laid down in Morfe v.
Mutuc, to wit:

"The concept of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen. This is
indeed one of the basic distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark
of the absolute state. In contrast, a system of limited government safeguards a private
sector, which belongs to the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private sector-- protection, in other
words, of the dignity and integrity of the individual-- has become increasingly important
as modern society has developed. All the forces of a technological age--
industrialization, urbanization, and organization-- operate to narrow the area of privacy
and facilitate intrusion into it. In modern terms, the capacity to maintain and support
this enclave of private life marks the difference between a democratic and a totalitarian
society."[87]

IV

The right to privacy is one of the most threatened rights of man living in a
mass society. The threats emanate from various sources-- governments, journalists,
employers, social scientists, etc.[88] In the case at bar, the threat comes from the
executive branch of government which by issuing A.O. No. 308 pressures the people
to surrender their privacy by giving information about themselves on the pretext that it
will facilitate delivery of basic services. Given the record-keeping power of the
computer, only the indifferent will fail to perceive the danger that A.O. No. 308
gives the government the power to compile a devastating dossier against
unsuspecting citizens. It is timely to take note of the well-worded warning of Kalvin,
Jr., "the disturbing result could be that everyone will live burdened by an unerasable
record of his past and his limitations. In a way, the threat is that because of its record-
keeping, the society will have lost its benign capacity to forget." [89] Oblivious to this
counsel, the dissents still say we should not be too quick in labelling the right to privacy
as a fundamental right. We close with the statement that the right to privacy was not
engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference System"
declared null and void for being unconstitutional.
SO ORDERED.

Narvasa, C.J., Melo, and Quisumbing, JJ., joins J. Kapunan and J. Mendoza in
their dissents.
Regalado, J., in the result.
Davide, Jr., in the result; joins J. Panganiban in his separate opinion.
Romero, Vitug and Panganiban, JJ., see separate opinion.
Kapunan, and Mendoza, JJ., see dissenting opinion.
Bellosillo, and Martinez, JJ., concur.
Purisima, J., joins J. Mendozas dissent.

#7

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.

ARANETA, IMEE 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.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only legal issues
are involved, the Court's decision in this case would undeniably have a profound effect on the
political, economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the
non-violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was
declared President of the Republic under a revolutionary government. Her ascension to and
consilidation of power have not been unchallenged. The failed Manila Hotel coup in 1986 led by
political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by
Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses
to surreptitiously return from Hawii with mercenaries aboard an aircraft chartered by a 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 thraetened civilian supremacy over 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 and among
rabid followers of Mr. Marcos. There are also the communist insurgency and the seccessionist
movement in Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the
communists have set up a parallel government of their own on the areas they effectively control
while the separatist are virtually free to move about in armed bands. There has been no let up on
this groups' determination to wrest power from the govermnent. Not only through resort to arms
but also to through the use of propaganda have they been successful in dreating chaos and
destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of
the nation attributed to Mr. Marcos and his cronies left the 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 Philipppines 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 Courts 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

Th issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the resolution of the
following issues:

1. Does the President have the power to bar the return of former President Marcos
and 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. 234-236.1

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.

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 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(l)]
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(l)] and the right to "be free to leave any country, including
his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect
national security, public order, public health or morals or enter qqqs own country" of which one
cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to construe the
limitations to the right 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 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 Marcose's to the Philippines poses a serious threat to national interest and
welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel 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 157.1 Thus, the
1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress of
the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the
Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only
establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but
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
631-632.1 If this can be said of the legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of the judicial power which is
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, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the framers
of the Constitution intend that the President shall exercise those specific powers and no other?
Are these se enumerated powers the breadth and scope of "executive power"? Petitioners
advance the view that the President's powers are limited to those specifically enumerated in the
1987 Constitution. Thus, they assert: "The President has enumerated powers, and what is not
enumerated is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for
Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of the U.S. 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 11 in its opening words: "The executive

power shall be vested in a President of the United States of America." . . .. [The
President: Office and Powers, 17871957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who held
the office from Washington to the early 1900's, and the swing from the presidency by commission
to Lincoln's dictatorship, he concluded that "what the presidency is at any particular moment
depends in important measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of

course, an agency of government subject to unvarying demands and duties no
remained, of cas 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 WhiteHouse
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 requires. [At 210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is
to serve and protect the people" and that "[t]he maintenance of peace and order,the protection of
life, liberty, and property, and the promotion of the 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 ofexpression, although couched in absolute terms, admits
of limits and must be adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the President's residual
power 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 tranquility in times when no
foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the relative want of an
emergency specified in 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 Marcose's from returning has
been recognized by memembers of the Legislature, and is manifested by the Resolution proposed
in the House of Representatives and signed by 103 of its members urging the President to allow
Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence to uncompromising respect for
human rights under the Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1
The Resolution does not question the President's power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President's sense of compassion to allow a man to come home
to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to 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 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to suspend
the privilege of the writ of habeas corpus under specified conditions. Pursuant to
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
Marcose's 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.

Separate Opinions
FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer
groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could
blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo
E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive
and well-written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from
a particular constitutional clause or article or from an express statutory grant. Their limits are likely
to depend on the imperatives of events and contemporary imponderables rather than on abstract
theories of law. History and time-honored principles of constitutional law have conceded to the
Executive Branch certain powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
"emergency." whatever they may be called, the fact is that these powers exist, as they must if the
governance function of the Executive Branch is to be carried out effectively and efficiently. It is in
this context that the power of the President to allow or disallow the Marcoses to return to the
Philippines should be viewed. By reason of its impact on national peace and order in these
admittedly critical times, said question cannot be withdrawn from the competence of the Executive
Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and
present danger to public order and safety. One needs only to recall the series of destabilizing
actions attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the
EDSA Revolution's aftermath to realize this. The most publicized of these offensives is the Manila
Hotel incident which occurred barely five (5) months after the People's Power Revolution. Around
10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel
and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of
Arturo Tolentino as acting president of the Philippines. The public disorder and peril to life and limb
of the citizens engendered by this event subsided only upon the eventual surrender of the loyalist
soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.
Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point
in Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74
soldier rebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite
and held the 15th Air Force Strike wing commander and his deputy hostage. Troops on board
several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200
soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their
way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to
convince their incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the military
led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt to
wrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms
and ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the
group members were, however, captured in Antipolo, Rizal. The same group was involved in an
unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different
Metro Manila areas for the projected link-up of Marcos military loyalist troops with the group of
Honasan. The pseudo "people power" movement was neutralized thru checkpoints set up by the
authorities along major road arteries where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized
upon as an opportunity by other enemies of the State, such as the Communist Party of the
Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage
an offensive against the government. Certainly, the state through its executive branch has the
power, nay, the responsibility and obligation, to prevent a grave and serious threat to its safety
from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid
justification for disallowing the requested return. I refer to the public pulse. It must be remembered
that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly
welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed
time, effort and money to put an end to an evidently untenable claim to power of a dictator. The
removal of the Marcoses from the Philippines was a moral victory for the Filipino people; and the
installation of the present administration, a realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to
sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away on
purely compassionate considerations. Neither could public peace, order and safety be sacrificed
for an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt
in favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily
exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

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

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-
evident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their
meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away
by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of
freedom for both unloved and despised persons on one hand and the rest who are not so
stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent.
We are interpreting the Constitution for only one person and constituting him into a class by himself.
The Constitution is a law for all classes of men at all times. To have a person as one class by
himself smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights
and not of power. Mr. Marcos is insensate and would not live if separated from the machines which
have taken over the functions of his kidneys and other organs. To treat him at this point as one
with full panoply of power against whom the forces of Government should be marshalled is totally
unrealistic. The Government has the power to arrest and punish him. But does it have the power
to deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

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, public safety,
or public health, as may be provided by law. (Emphasis supplied, Section 6, Art.
111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security
and public safety which is hauntingly familiar because it was pleaded so often by petitioner
Ferdinand E. Marcos to justify his acts under martial law. There is, however, no showing of the
existence of a law prescribing the limits of the power to impair and the occasions for its exercise.
And except for citing breaches of law and order, the more serious of which were totally unrelated
to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed
to any grave exigency which permits the use of untrammeled Governmental power in this case
and the indefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They contend that the decision to ban former President Marcos, and his
family on grounds of national security and public safety is vested by the Constitution in the
President alone. The determination should not be questioned before this Court. The President's
finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled 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 he
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.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language
 of Corpus Juris Secundum (supra), it refers to '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 Legislature
or executive branch of the Government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr.,
who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S.
Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v.
Carr are:

It is apparent that several formulations which vary slightly according to the settings
in which the questions arise may describe a political question, which identifies it as
essentially a function of the separation of powers. Prominent on the surface of any
case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision
already made; or potentiality of embarrassment from multifarious pronouncements
by various departments on one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine 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 to override everything which to them represents evil. The entire Government is
bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national
security or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in
the commander-in-chief clause which allows the President to call out the armed forces in case of
lawless violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or
proclaim martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a
need to suspend the privilege of the writ of habeas corpus or proclaim martial law because of the
arrival of Mr. Marcos and his family. To be sure, there may be disturbances but not of a magnitude
as would compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the
enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist."
The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies
and that the "loyalists" engaging in rallies and demonstrations have to be paid individual
allowances to do so constitute the strongest indication that the hard core "loyalists" who would
follow Marcos right or wrong are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the
best of Filipino customs and traditions to allow a dying person to return to his home and breath his
last in his native surroundings. Out of the 103 Congressmen who passed the House resolution
urging permission for his return, there are those who dislike Mr. Marcos intensely or who suffered
under his regime. There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that
such a return would deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the
respondents' contention that national security and public safety would be endangered by a grant
of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which stand
in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the
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 out of or back into the Philippines, cannot be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law.

There is no law setting the limits on a citizen's right to move from one part of the country to another
or from the Philippines to a foreign country or from a foreign country to the Philippines. The laws
cited by the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro
probation, and parole are all inapplicable insofar as the return of Mr. Marcos and family is
concerned. There is absolutely no showing how any of these statutes and regulations could serve
as a basis to bar their coming home.

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.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the
political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA
538 [1983]).

Many of those now occupying the highest positions in the executive departments, Congress, and
the judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency,
utility or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under
his authoritarian regime the proclamation of martial law, the ratification of a new constitution, the
arrest and detention of "enemies of the State" without charges being filed against them, the
dissolution of Congress and the exercise by the President of legislative powers, the trial of civilians
for civil offenses by military tribunals, the seizure of some of the country's biggest corporations, the
taking over or closure of newspaper offices, radio and television stations and other forms of media,
the proposals to amend the Constitution, etc. was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political question doctrine so often
invoked by then President Marcos to justify his acts is now being used against him and his family.
Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are
bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a
broad definition of judicial power was added to the vesting in the Supreme Court and statutory
courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
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.

This new provision was enacted to preclude this Court from using the political question doctrine as
a means to avoid having to make decisions simply because they are too controversial, displeasing
to the President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political 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 cases where it refused to examine and strike down an exercise of authoritarian power.
Parenthetically, at least two of the respondents and their counsel were among the most vigorous
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 question doctrine. We are
compelled to decide what would have been non-justiceable 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.

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 [19051), 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 General's offer that the military give
us a closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents
present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales,
Jr. v. Enrile, (121 SCRA 538, 592 [19831):

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
truth words of Montenegro, with its very limited machinery fit] 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
Court was in no situation to disprove them. It was a case of the defendant judging
the suit. After all is said and done, the attempt by its Court to determine whether or
not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.

There is still another reason why this Court should maintain a detached attitude
and refrain from giving the seal of approval to the act of the Executive Branch. For
it is possible that the suspension of the writ lacks popular support because of one
reason or another. But when this Court declares that the suspension is not arbitrary
(because it cannot do otherwise upon the facts given to it by the Executive Branch)
it in effect participates in the decision-making process. It assumes a task which it
is not equipped to handle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the
only basis for determining the clear and present danger to national security and public safety. The
majority of the Court has taken judicial notice of the Communist rebellion, the separatist movement,
the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for
these incidents? All these problems are totally unrelated to 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 person's 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, respondents' Comment at page 73 of Rollo). Neither ground satisfies the
criteria of national security and public safety. The President has been quoted as stating that the
vast majority of Filipinos support her position. (The Journal, front page, January 24,1989) We
cannot validate their stance simply because it is a popular one. Supreme Court decisions do not
have to be popular as long as they follow the Constitution and the law. The President's original
position "that it is not in the interest of the nation that Marcos be allowed to return at this time" has
not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President
is reported to have stated that "considerations of the highest national good dictate that we preserve
the substantial economic and political gains of the past three years" in justifying her firm refusal to
allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving economic and political gains," cannot
be equated with national security or public order. They are too generic and sweeping to serve as
grounds for the denial of a constitutional right. The Bill of Rights commands that the right to travel
may not be impaired except on the stated grounds of national security, public safety, or public
health and with the added requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it
does on injustice, ignorance, poverty, and other aspects at under-development, the Communist
rebellion is the clearest and most present danger to national security and constitutional freedoms.
Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos
himself was forced to flee the country because of "peoples' power." Yet, there is no move to arrest
and exile the leaders of student groups, teachers' organizations, pea ant and labor federations,
transport workers, and government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to see how Mr. Marcos could
be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard
core loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic
should a dying Marcos come home is too speculative and unsubstantial a ground for denying a
constitutional right. It is not shown how extremists from the right and the left who loathe each other
could find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which
alone sustains the claim of danger to national security is fraught with perilous implications. Any
difficult problem or any troublesome person can be substituted for the Marcos threat as the
catalysing factor. The alleged confluence of NPAs, secessionists, radical elements, renegade
soldiers, etc., would still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is denied.
Tomorrow, a newspaper may be closed. Public assemblies may be prohibited. Human rights may
be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga was
curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply
regret that the Court's decision to use the political question doctrine in a situation where it does not
apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed and
that the military is on top of the situation. Where then is the clear danger to national security? The
Court has taken judicial notice of something which even the military denies. There would be severe
strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can
be successfully contained by the military. I must stress that no reference was made to a clear and
present danger to national security as would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the President
to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to
warrant serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the
Batasang Pambansa failed or was unable to act adequately on any matter for any reason that in
his judgment required immediate action. When the Bill of Rights provides that a right may not be
impaired except in the interest of national security, public safety, or public health and further
requires that a law must provide when such specifically defined interests are prejudiced or require
protection, the inaction of Congress does not give reason for the respondents to assume the
grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct
us from ruling against an unconstitutional assertion of power by Philippine officials. Let the United
States apply its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling
while hooked up to machines which have taken over the functions of his heart, lungs, and kidneys
may hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing
to act on his claim to a basic right which is legally demandable and enforceable. For his own good,
it might be preferable to stay where he is. But he invokes a constitutional right. We have no power
to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and
nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow
international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do
not think we should differentiate the right to return home from the right to go abroad or to move
around in the Philippines. If at all, the right to come home must be more preferred than any other
aspect of the right to travel. It was precisely the banning by Mr. Marcos of the right to travel by
Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to
national security" during that unfortunate period which led the framers of our present Constitution
not only to re-enact but to strengthen the declaration of this right. Media often asks, "what else is
new?" I submit that we now have a freedom loving and humane regime. I regret that the Court's
decision in this case sets back the gains that our country has achieved in terms of human rights,
especially human rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former
dictators who were barred by their successors from returning to their respective countries. There
is no showing that the countries involved have constitutions which guarantee the liberty of abode
and the freedom to travel and that despite such constitutional protections, the courts have validated
the "ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as President
Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to
sow discord and to divide the nation. Opposition to the government no matter how odious or
disgusting is, however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government
helpless to defend itself against a threat to national security? Does the President have to suspend
the privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drastic
measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of
those powers because the Bill of Rights says so. There is no law prescribing exile in a foreign land
as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live —
and die — in his own country. I say this with a heavy heart but say it nonetheless. That conviction
is not diminished one whit simply because many believe Marcos to be beneath contempt and
undeserving of the very liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we
resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to
leave Hawaii (which may depend on the action we take today), the respondents have acted with
grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer,
but could not, that the petitioner's return would prejudice the security of the State.

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
President's decision" to bar Marcos's 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 rather than
expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if
it was true that the President had been granted the totality of executive power, "it is difficult to see
why our forefathers bothered to add several specific items, including some trifling ones, . . . I cannot
accept the view that this clause is a grant in bulk of all conceivable executive power but regard it
as an allocation to the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that
Marcos is perhaps the most detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am not swayed by what Justice
Cardozo called the "hooting throng" that may make us see things through the prisms of prejudice.
I bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.

The issue before us must be resolved with total objectivity, on the basis only of the established
facts and the applicable law and not of wounds that still fester and scars that have not healed. And
not even of fear, for fear is a phantom. That phantom did not rise when the people stood fast at
EDSA against the threat of total massacre in defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor
of Constitutional Law. These principles have not changed simply because I am now on the Court
or a new administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of
abode that his adversary invoked. These rights are guaranteed by the Constitution to all
individuals, including the patriot and the homesick and the prodigal son returning, and tyrants and
charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also
called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return
to the Philippines may be resolved by answering two simple questions: Does he have the right to
return to his own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return
to his own country except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they
can rely on is sheer speculation. True, there is some danger but there is no showing as to the
extent.

It is incredible that one man alone together with his family, who had been ousted from this country
by popular will, can arouse an entire country to rise in morbid sympathy for the cause he once
espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the members
of his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos
or any member of his family die, the body should not be taken out of the municipality of confinement
and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J., dissenting:

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 of the
Philippine Government to bar such return in the interest of national security and public safety. In
this context, the issue is clearly justiciable involving, as it does, colliding assertions of individual
right and governmental power. Issues of this nature more than explain why the 1986 Constitutional
Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the
1987 Constitution, the new provision on the power of Judicial Review, viz:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
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. Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to
travel which, in the language of the Constitution, shall not be impaired "except in the interest of
national security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That
the right to travel comprises the right to travel within the country, to travel out of the country and to
return to the country (Philippines), is hardly disputable. Short of all such components, the right to
travel is meaningless. The real question arises in the interpretation of the qualifications attached
by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do
not agree. It is my view that, with or without restricting legislation, the interest of national security,
public safety or public health can justify and even require restrictions on the right to travel, and that
the clause "as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution
merely declares a constitutional leave or permission 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 wich 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.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence
to offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the
respondents shown to the Court sufficient factual bases and data which would justify their reliance
on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr.
Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained
and expressed by the respondents, including those conveyed through the military, do not, with all
due respect, escalate to proportions of national security or public safety. They appear to be more
speculative than real, obsessive rather than factual. Moreover, such apprehensions even if
translated into realities, would be "under control," as admitted to the Court by said military
authorities, given the resources and facilities at the command of government. But, above all, the
Filipino people themselves, in my opinion, will know how to handle any situation brought about by
a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court,
in short, should not accept respondents' general apprehensions, concerns and perceptions at face
value, in the light of a countervailing and even irresistible, specific, clear, demandable, and
enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting
the generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2
of the Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the
Universal Declaration of Human Rights which provides that everyone has the right to leave any
country, including his own, and to return to his country. This guarantee is reiterated in Art. XII, par.
2 of the International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or
"arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to protect an individual
against unexpected, irresponsible or excessive encroachment on his rights by the state based on
national traditions or a particular sense of justice which falls short of international law or
standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have
raised the argument of "national security" and "public safety," it is the duty of this Court to
unquestioningly yield thereto, thus casting the controversy to the realm of a political question. I do
not agree. I believe that it is one case where the human and constitutional light invoked by one
party is so specific, substantial and clear that it cannot be overshadowed, much less, nullified by
simplistic generalities; worse, the Court neglects its duty under the Constitution when it allows the
theory of political question to serve as a convenient, and yet, lame excuse for evading what, to me,
is its clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in
1983 and, at the same time, credibly denythe right of Mr. Marcos, also a Filipino, to return to the
Philippines in 1989. I still have not found a satisfactory answer to that question. Instead, it has
become clearer by the day that the drama today is the same drama in 1983 with the only difference
that the actors are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case —

1. Mr. Marcos 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.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir
trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on
the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds
of judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "The
right to return to one's country," pitted against "the right of travel and freedom of abode", and their
supposed distinctions under international law, as if such distinctions, under international law in
truth and in fact exist. There is only one right involved here, whether under municipal or
international law: the light of travel, whether within one's own country, or to another, and the right
to return thereto. The Constitution itself makes no distinctions; let then, no one make a
distinction. Ubi lex non distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power
to deny a citizen his right to travel (back to the country or to another)? It is a question that, in
essence, involves the application, and no more, of the provisions of the 1987 Constitution:
 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, public safety,
or public health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of
the power, thus:

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. 5

So also:

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 "sovereignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

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 demanded [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]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them
by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According
to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy
of a big of rights. Precisely a constitution exists to assure that in the discharge of the governmental
functions, the dignity that is the birthright of every human being is duly safeguarded. To be true to
its primordial aim a constitution must lay down the boundaries beyond which he's forbidden territory
for state action" 8
My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude
of powers, as provided in the Constitution, or by sheer constitutional implication, prevail over
express constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in
the field of public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon
a mere inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception,
that is, by Presidential action, to the right of travel or liberty of abode and of changing the same
other than what it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the
court" 11 the Charter could have specifically declared so. As it is, the lone deterrents to the right in
question are: (1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a
third exception, that is, by Presidential initiative, it could have so averred. It would also have made
the Constitution, as far as limits to the said right are concerned, come full circle: Limits by
legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the
country; neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public
safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary
in the interest of national security, public safety, or public health. 13 Arguably, the provision enabled
the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such
practices as "hamletting", forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power.
And, as it so appears, the right may be impaired only "within the limits provided by law . 15 The
President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and
foreign affairs; 17the Bill of Rights precisely, a form of check against excesses of officialdom is, in
this case, a formidable barrier against Presidential action. (Even on matters of State security, this
Constitution prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the 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 good and 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.18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we
say "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so
confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos. Morality
is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises
of possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures
contradict contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power
as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian
rule. It also means that we are no better than he has.

That "[t]he 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" 22 is a bigger fantasy: It not only summons the martial law decisions
of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent with
the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly
and unabatedly criticized the dictator, his associates, and his military machinery. He would pay
dearly for it; he was arrested and detained, without judicial warrant or decision, for seven months
and seven days. He was held incommunicado a greater part of the time, in the military stockade
of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital)
and confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his
delicate health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial
law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On
August 14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen
Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest,
for "inciting to sedition" and "rumor mongering " 24 in the midst of the distribution of Ang
Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule,
published by him and former Congressman Concordia, authored by President Macapagal and
translated into Tagalog by Congressman Rogaciano Mercado. In addition, they were also all
accused of libel in more than two dozens of criminal complaints filed by the several military officers
named in the "condemned" book as having violated the human rights of dissenters, and for other
crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them
free from house arrest and these political offenses. I am for Marcos' return not because I have a
score to settle with him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership
inflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of abode. 25 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 "man's "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 this 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.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer
groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could
blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo
E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive
and well-written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from
a particular constitutional clause or article or from an express statutory grant. Their limits are likely
to depend on the imperatives of events and contemporary imponderables rather than on abstract
theories of law. History and time-honored principles of constitutional law have conceded to the
Executive Branch certain powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
'emergency." whatever they may be called, the fact is that these powers exist, as they must if the
governance function of the Executive Branch is to be carried out effectively and efficiently. It is in
this context that the power of the President to allow or disallow the Marcoses to return to the
Philippines should be viewed. By reason of its impact on national peace and order in these
admittedly critical times, said question cannot be withdrawn from the competence of the Executive
Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and
present danger to public order and safety. One needs only to recall the series of destabilizing
actions attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the
EDSA Revolution's aftermath to realize this. The most publicized of these offensives is the Manila
Hotel incident which occurred barely five (5) months after the People's Power Revolution. Around
10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel
and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of
Arturo Tolentino as acting president of the Philippines. The public disorder and peril to life and limb
of the citizens engendered by this event subsided only upon the eventual surrender of the loyalist
soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.
Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point
in Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74
soldier rebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite
and held the 15th Air Force Strike wing commander and his deputy hostage. Troops on board
several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200
soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their
way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to
convince their incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the military
led by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt to
wrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms
and ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the
group members were, however, captured in Antipolo, Rizal. The same group was involved in an
unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different
Metro Manila areas for the projected link-up of Marcos military loyalist troops with the group of
Honasan. The pseudo "people power" movement was neutralized thru checkpoints set up by the
authorities along major road arteries where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized
upon as an opportunity by other enemies of the State, such as the Communist Party of the
Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage
an offensive against the government. Certainly, the state through its executive branch has the
power, nay, the responsibility and obligation, to prevent a grave and serious threat to its safety
from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid
justification for disallowing the requested return. I refer to the public pulse. It must be remembered
that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly
welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed
time, effort and money to put an end to an evidently untenable claim to power of a dictator. The
removal of the Marcoses from the Philippines was a moral victory for the Filipino people; and the
installation of the present administration, a realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to
sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away on
purely compassionate considerations. Neither could public peace, order and safety be sacrificed
for an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt
in favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily
exercised, to ban the Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with
the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of government." (Ex Parte Milligan,
4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-
evident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their
meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away
by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of
freedom for both unloved and despised persons on one hand and the rest who are not so
stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent.
We are interpreting the Constitution for only one person and constituting him into a class by himself.
The Constitution is a law for all classes of men at all times. To have a person as one class by
himself smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights
and not of power. Mr. Marcos is insensate and would not live if separated from the machines which
have taken over the functions of his kidneys and other organs. To treat him at this point as one
with full panoply of power against whom the forces of Government should be marshalled is totally
unrealistic. The Government has the power to arrest and punish him. But does it have the power
to deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

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, public safety,
or public health, as may be provided by law. (Emphasis supplied, Section 6, Art.
111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security
and public safety which is hauntingly familiar because it was pleaded so often by petitioner
Ferdinand E. Marcos to justify his acts under martial law. There is, however, no showing of the
existence of a law prescribing the limits of the power to impair and the occasions for its exercise.
And except for citing breaches of law and order, the more serious of which were totally unrelated
to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed
to any grave exigency which permits the use of untrammeled Governmental power in this case
and the indefinite suspension of the constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They contend that the decision to ban former President Marcos, and his
family on grounds of national security and public safety is vested by the Constitution in the
President alone. The determination should not be questioned before this Court. The President's
finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxxxxxxxx

It is a well-settled 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 he
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.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language of
Corpus Juris Secundum (supra), it refers to '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 Legislature
or executive branch of the Government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.

The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr.,
who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S.
Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v.
Carr are:

It is apparent that several formulations which vary slightly according to the settings
in which the questions arise may describe a political question, which Identifies it as
essentially a function of the separation of powers. Prominent on the surface of any
case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision
already made; or potentiality of embarrassment from multifarious pronouncements
by various departments on one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine 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 to override everything which to them represents evil. The entire Govern ment is
bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national
security or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in
the commander-in-chief clause which allows the President to call out the armed forces in case of
lawless violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or
proclaim martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a
need to suspend the privilege of the writ of habeas corpus or proclaim martial law because of the
arrival of Mr. Marcos and his family. To be sure, there may be disturbances but not of a magnitude
as would compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the
enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist."
The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies
and that the "loyalists" engaging in rallies and demonstrations have to be paid individual
allowances to do so constitute the strongest indication that the hard core "loyalists" who would
follow Marcos right or wrong are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the
best of Filipino customs and traditions to allow a dying person to return to his home and breath his
last in his native surroundings. Out of the 103 Congressmen who passed the House resolution
urging permission for his return, there are those who dislike Mr. Marcos intensely or who suffered
under his regime. There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that
such a return would deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the
respondents' contention that national security and public safety would be endangered by a grant
of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which stand
in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the
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 out of or back into the Philippines, cannot be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law.

There is no law setting the limits on a citizen's right to move from one part of the country to another
or from the Philippines to a foreign country or from a foreign country to the Philippines. The laws
cited by the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro
probation, and parole are all inapplicable insofar as the return of Mr. Marcos and family is
concerned. There is absolutely no showing how any of these statutes and regulations could serve
as a basis to bar their coming home.

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.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the
political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA
538 [1983]).

Many of those now occupying the highest positions in the executive departments, Congress, and
the judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency,
utility or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under
his authoritarian regime the proclamation of martial law, the ratification of a new constitution, the
arrest and detention of "enemies of the State" without charges being filed against them, the
dissolution of Congress and the exercise by the President of legislative powers, the trial of civilians
for civil offenses by military tribunals, the seizure of some of the country's biggest corporations, the
taking over or closure of newspaper offices, radio and television stations and other forms of media,
the proposals to amend the Constitution, etc. was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political question doctrine so often
invoked by then President Marcos to justify his acts is now being used against him and his family.
Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are
bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a
broad definition of judicial power was added to the vesting in the Supreme Court and statutory
courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
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.

This new provision was enacted to preclude this Court from using the political question doctrine as
a means to avoid having to make decisions simply because they are too controversial, displeasing
to the President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political 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 cases where it refused to examine and strike down an exercise of authoritarian power.
Parenthetically, at least two of the respondents and their counsel were among the most vigorous
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 question doctrine. We are
compelled to decide what would have been non-justiceable 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.

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 [19051), 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 General's offer that the military give
us a closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents
present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales,
Jr. v. Enrile, (121 SCRA 538, 592 [19831):

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
truth words of Montenegro, with its very limited machinery fit] 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
Court was in no situation to disprove them. It was a case of the defendant judging
the suit. After all is said and done, the attempt by its Court to determine whether or
not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.

There is still another reason why this Court should maintain a detached attitude
and refrain from giving the seal of approval to the act of the Executive Branch. For
it is possible that the suspension of the writ lacks popular support because of one
reason or another. But when this Court declares that the suspension is not arbitrary
(because it cannot do otherwise upon the facts given to it by the Executive Branch)
it in effect participates in the decision-making process. It assumes a task which it
is not equipped to handle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the
only basis for determining the clear and present danger to national security and public safety. The
majority of the Court has taken judicial notice of the Communist rebellion, the separatist movement,
the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for
these incidents? All these problems are totally unrelated to 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 person's 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-41) national welfare and
interest and (2) the continuing need to preserve the gains achieved in terms of recovery and
stability. (See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the
criteria of national security and public safety. The President has been quoted as stating that the
vast majority of Filipinos support her position. (The Journal, front page, January 24,1989) We
cannot validate their stance simply because it is a popular one. Supreme Court decisions do not
have to be popular as long as they follow the Constitution and the law. The President's original
position "that it is not in the interest of the nation that Marcos be allowed to return at this time" has
not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President
is reported to have stated that "considerations of the highest national good dictate that we preserve
the substantial economic and political gains of the past three years" in justifying her firm refusal to
allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15,
1989). "Interest of the nation national good," and "preserving economic and political gains," cannot
be equated with national security or public order. They are too generic and sweeping to serve as
grounds for the denial of a constitutional right. The Bill of Rights commands that the right to travel
may not be impaired except on the stated grounds of national security, public safety, or public
health and with the added requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it
does on injustice, ignorance, poverty, and other aspects at under-development, the Communist
rebellion is the clearest and most present danger to national security and constitutional freedoms.
Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos
himself was forced to flee the country because of "peoples' power." Yet, there is no move to arrest
and exile the leaders of student groups, teachers' organizations, pea ant and labor federations,
transport workers, and government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to see how Mr. Marcos could
be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard
core loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic
should a dying Marcos come home is too speculative and unsubstantial a ground for denying a
constitutional right. It is not shown how extremists from the right and the left who loathe each other
could find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which
alone sustains the claim of danger to national security is fraught with perilous implications. Any
difficult problem or any troublesome person can be substituted for the Marcos threat as the
catalysing factor. The alleged confluence of NPAS, secessionists, radical elements, renegade
soldiers, etc., would still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is denied.
Tomorrow, a newspaper may be closed. Public assemblies may be prohibited. Human rights may
be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga was
curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply
regret that the Court's decision to use the political question doctrine in a situation where it does not
apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed and
that the military is on top of the situation. Where then is the clear danger to national security? The
Court has taken judicial notice of something which even the military denies. There would be severe
strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can
be successfully contained by the military. I must stress that no reference was made to a clear and
present danger to national security as would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the President
to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to
warrant serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the
Batasang Pambansa failed or was unable to act adequately on any matter for any reason that in
his judgment required immediate action. When the Bill of Rights provides that a right may not be
impaired except in the interest of national security, public safety, or public health and further
requires that a law must provide when such specifically defined interests are prejudiced or require
protection, the inaction of Congress does not give reason for the respondents to assume the
grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct
us from ruling against an unconstitutional assertion of power by Philippine officials. Let the United
States apply its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling
while hooked up to machines which have taken over the functions of his heart, lungs, and kidneys
may hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing
to act on his claim to a basic right which is legally demandable and enforceable. For his own good,
it might be preferable to stay where he is. But he invokes a constitutional right. We have no power
to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and
nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow
international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do
not think we should differentiate the right to return home from the right to go abroad or to move
around in the Philippines. If at all, the right to come home must be more preferred than any other
aspect of the right to travel. It was precisely the banning by Mr. Marcos of the right to travel by
Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to
national security" during that unfortunate period which led the framers of our present Constitution
not only to re-enact but to strengthen the declaration of this right. Media often asks, "what else is
new?" I submit that we now have a freedom loving and humane regime. I regret that the Court's
decision in this case sets back the gains that our country has achieved in terms of human rights,
especially human rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former
dictators who were barred by their successors from returning to their respective countries. There
is no showing that the countries involved have constitutions which guarantee the liberty of abode
and the freedom to travel and that despite such constitutional protections, the courts have validated
the "ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as President
Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to
sow discord and to divide the nation. Opposition to the government no matter how odious or
disgusting is, however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government
helpless to defend itself against a threat to national security? Does the President have to suspend
the privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drastic
measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of
those powers because the Bill of Rights says so. There is no law prescribing exile in a foreign land
as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and
die-in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be beneath contempt and
undeserving of the very liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we
resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to
leave Hawaii (which may depend on the action we take today), the respondents have acted with
grave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer,
but could not, that the petitioner's return would prejudice the security of the State.

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. 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
President's decision" to bar Marcos's 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 rather than
expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if
it was true that the President had been granted the totality of executive power, "it is difficult to see
why our forefathers bothered to add several specific items, including some trifling ones, . . . I cannot
accept the view that this clause is a grant in bulk of all conceivable executive power but regard it
as an allocation to the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that
Marcos is perhaps the most detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am not swayed by what Justice
Cardozo called the "hooting throng" that may make us see things through the prisms of prejudice.
I bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.

The issue before us must be resolved with total objectivity, on the basis only of the established
facts and the applicable law and not of wounds that still fester and scars that have not healed. And
not even of fear, for fear is a phantom. That phantom did not rise when the people stood fast at
EDSA against the threat of total massacre in defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor
of Constitutional Law. These principles have not changed simply because I am now on the Court
or a new administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of
abode that his adversary invoked. These rights are guaranteed by the Constitution to all
individuals, including the patriot and the homesick and the prodigal son returning, and tyrants and
charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also
called a society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return
to the Philippines may be resolved by answering two simple questions: Does he have the right to
return to his own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return
to his own country except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they
can rely on is sheer speculation. True, there is some danger but there is no showing as to the
extent.

It is incredible that one man alone together with his family, who had been ousted from this country
by popular will, can arouse an entire country to rise in morbid sympathy for the cause he once
espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the members
of his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos
or any member of his family die, the body should not be taken out of the municipality of confinement
and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J., dissenting:

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 of the
Philippine Government to bar such return in the interest of national security and public safety. In
this context, the issue is clearly justiciable involving, as it does, colliding assertions of individual
right and governmental power. Issues of this nature more than explain why the 1986 Constitutional
Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the
1987 Constitution, the new provision on the power of Judicial Review, viz:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
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. Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to
travel which, in the language of the Constitution, shall not be impaired "except in the interest of
national security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That
the right to travel comprises the right to travel within the country, to travel out of the country and to
return to the country (Philippines), is hardly disputable. Short of all such components, the right to
travel is meaningless. The real question arises in the interpretation of the qualifications attached
by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do
not agree. It is my view that, with or without restricting legislation, the interest of national security,
public safety or public health can justify and even require restrictions on the right to travel, and that
the clause "as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution
merely declares a constitutional leave or permission 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 wich 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.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country. 1 Have the respondents presented sufficient evidence
to offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the
respondents shown to the Court sufficient factual bases and data which would justify their reliance
on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr.
Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained
and expressed by the respondents, including those conveyed through the military, do not, with all
due respect, escalate to proportions of national security or public safety. They appear to be more
speculative than real, obsessive rather than factual. Moreover, such apprehensions even if
translated into realities, would be "under control," as admitted to the Court by said military
authorities, given the resources and facilities at the command of government. But, above all, the
Filipino people themselves, in my opinion, will know how to handle any situation brought about by
a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court,
in short, should not accept respondents' general apprehensions, concerns and perceptions at face
value, in the light of a countervailing and even irresistible, specific, clear, demandable, and
enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting
the generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2
of the Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the
Universal Declaration of Human Rights which provides that everyone has the right to leave any
country, including his own, and to return to his country. This guarantee is reiterated in Art. XII, par.
2 of the International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or
"arbitrarily" was specifically chosen by the drafters of the Covenant 3 hoping to protect an individual
against unexpected, irresponsible or excessive encroachment on his rights by the state based on
national traditions or a particular sense of justice which falls short of international law or
standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have
raised the argument of "national security" and "public safety," it is the duty of this Court to
unquestioningly yield thereto, thus casting the controversy to the realm of a political question. I do
not agree. I believe that it is one case where the human and constitutional light invoked by one
party is so specific, substantial and clear that it cannot be overshadowed, much less, nullified by
simplistic generalities; worse, the Court neglects its duty under the Constitution when it allows the
theory of political question to serve as a convenient, and yet, lame excuse for evading what, to me,
is its clearly pressing and demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in
1983 and, at the same time, credibly denythe right of Mr. Marcos, also a Filipino, to return to the
Philippines in 1989. I still have not found a satisfactory answer to that question. Instead, it has
become clearer by the day that the drama today is the same drama in 1983 with the only difference
that the actors are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case-

1. Mr. Marcos 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 con- vincing 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.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines." 1 I therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir
trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on
the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds
of judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The
right to return to one's country," pitted against "the right of travel and freedom of abode", and their
supposed distinctions under international law, as if such distinctions, under international law in
truth and in fact exist. There is only one right involved here, whether under municipal or
international law: the light of travel, whether within one's own country, or to another, and the right
to return thereto. The Constitution itself makes no distinctions; let then, no one make a
distinction. Ubi lex non distinguish nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power
to deny a citizen his right to travel (back to the country or to another)? It is a question that, in
essence, involves the application, and no more, of the provisions of the 1987 Constitution:

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, public safety,
or public health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of
the power, thus:

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. 5

So also:

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 "sovereignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

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 demanded [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]. 7
I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them
by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According
to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy
of a big of rights. Precisely a constitution exists to assure that in the discharge of the governmental
functions, the dignity that is the birthright of every human being is duly safeguarded. To be true to
its primordial aim a constitution must lay down the boundaries beyond which he's forbidden territory
for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude
of powers, as provided in the Constitution, or by sheer constitutional implication, prevail over
express constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in Ms own right, a titan in
the field of public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon
a mere inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception,
that is, by Presidential action, to the right of travel or liberty of abode and of changing the same
other than what it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the
court" 11 the Charter could have specifically declared so. As it is, the lone deterrents to the right in
question are: (1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a
third exception, that is, by Presidential initiative, it could have so averred. It would also have made
the Constitution, as far as limits to the said right are concerned, come full circle: Limits by
legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the
country; neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public
safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary
in the interest of national security, public safety, or public health. 13 Arguably, the provision enabled
the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such
practices as "hamletting", forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power.
And, as it so appears, the right may be impaired only "within the limits provided by law . 15 The
President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and
foreign affairs; 17the Bill of Rights precisely, a form of check against excesses of officialdom is, in
this case, a formidable barrier against Presidential action. (Even on matters of State security, this
Constitution prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the 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 good and 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.18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we
say "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so
confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos. Morality
is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual
liberties. 20 As I indicated, not one shred of evidence, let alone solid evidence, other than surmises
of possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures
contradict contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power
as protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian
rule. It also means that we are no better than he has.

That "[t]he 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" 22 is a bigger fantasy: It not only summons the martial law decisions
of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent with
the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly
and unabatedly criticized the dictator, his associates, and his military machinery. He would pay
dearly for it; he was arrested and detained, without judicial warrant or decision, for seven months
and seven days. He was held incommunicado a greater part of the time, in the military stockade
of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital)
and confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his
delicate health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial
law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On
August 14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen
Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest,
for "inciting to sedition" and "rumor mongering " 24 in the midst of the distribution of Ang
Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule,
published by him and former Congressman Concordia, authored by President Macapagal and
translated into Tagalog by Congressman Rogaciano Mercado. In addition, they were also all
accused of libel in more than two dozens of criminal complaints filed by the several military officers
named in the "condemned" book as having violated the human rights of dissenters, and for other
crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them
free from house arrest and these political offenses. I am for Marcos' return not because I have a
score to settle with him. Ditto's death or my arrest are scores that can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for Ms crimes to country and countrymen. If punishment is due, let this leadership
inflict it. But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of abode. 25 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 "man's "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 framwork, there is no this 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.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

#8

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED
NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU
OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike —
but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial

movement of carabaos and the slaughtering of carabaos not complying with the
requirements of Executive Order No. 626 particularly with respect to age;
 WHEREAS, it has been observed that despite such orders the violators still
manage to circumvent the prohibition against inter-provincial movement of
carabaos by transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order

No. 626 and the prohibition against interprovincial movement of carabaos, it is
necessary to strengthen the said Executive Order and provide for the disposition
of the carabaos and carabeef subject of the violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers vested in me by the Constitution, do hereby promulgate the
following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no
carabao regardless of age, sex, physical condition or purpose and no carabeef
shall be transported from one province to another. The carabao or carabeef
transported in violation of this Executive Order as amended shall be subject to
confiscation and forfeiture by the government, to be distributed to charitable
institutions and other similar institutions as the Chairman of the National Meat
Inspection Commission may ay see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industry may see fit, in the case
of carabaos.

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord,
nineteen hundred and eighty.

(SGD.)
FERDINAND E.
MARCOS

Pre
side
nt

Republic of the
Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13,
1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the
confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined
to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial
court, ** and he has now come before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes
outright confiscation of the carabao or carabeef being transported across provincial boundaries.
His claim is that the penalty is invalid because it is imposed without according the owner a right to
be heard before a competent and impartial court as guaranteed by due process. He complains that
the measure should not have been presumed, and so sustained, as constitutional. There is also a
challenge to the improper exercise of the legislative power by the former President under
Amendment No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable
here. The question raised there was the necessity of the previous publication of the measure in
the Official Gazette before it could be considered enforceable. We imposed the requirement then
on the basis of due process of law. In doing so, however, this Court did not, as contended by the
Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an
entirely different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the
Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules
of court may provide," final judgments and orders of lower courts in, among others, all cases
involving the constitutionality of certain measures. 7 This simply means that the resolution of such
cases may be made in the first instance by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any
means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity,
and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to
recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of
least resistance by simply presuming the constitutionality of a law when it is questioned. On the
contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another
distinguished jurist, 9 and so heal the wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of
the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition
unworthy of the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise
of his legislative authority under Amendment No. 6. It was provided thereunder that whenever in
his judgment there existed a grave emergency or a threat or imminence thereof or whenever the
legislature failed or was unable to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As there is no showing of any exigency to
justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question
the validity of the executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment, " a phrase that will lead to
protracted discussion not really necessary at this time, we reserve resolution of this matter until a
more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question
of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That
is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed
and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel,
Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained
by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due
process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all
seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to
make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process
lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they
may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to
leave the import of the protection open-ended, as it were, to be "gradually ascertained by the
process of inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus,
Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process — and in so doing sums
it all up — as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12

When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won
for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King
John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base,
that every person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear
"the other side" before an opinion is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half must also be considered if an
impartial verdict is to be reached based on an informed appreciation of the issues in contention. It
is indispensable that the two sides complement each other, as unto the bow the arrow, in leading
to the correct ruling after examination of the problem not from one or the other perspective only
but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is
unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all,
in repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be
dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system
that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law
of the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which
hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person
are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into
a worn and empty catchword.

This is not to say that notice and hearing are imperative in every case for, to be sure, there are a
number of admitted exceptions. The conclusive presumption, for example, bars the admission of
contrary evidence as long as such presumption is based on human experience or there is a rational
connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances
when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a
mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport
of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy
restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such
instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the
urgency of the need to protect the general welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both
restraints and is restrained by due process. The police power is simply defined as the power
inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By
reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most
demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society,
is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead — from the womb to
beyond the tomb — in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome
intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power
is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere
tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A,
amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except
under certain conditions. The original measure was issued for the reason, as expressed in one of
its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved
for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the
need for such a measure. In the face of the worsening energy crisis and the increased dependence
of our farms on these traditional beasts of burden, the government would have been remiss,
indeed, if it had not taken steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration,
branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The
conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were
then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an
acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and
the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration
and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part
as follows:

To justify the State in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those
of a particular class, require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. ...

From what has been said, we think it is clear that the enactment of the provisions
of the statute under consideration was required by "the interests of the public
generally, as distinguished from those of a particular class" and that the prohibition
of the slaughter of carabaos for human consumption, so long as these animals are
fit for agricultural work or draft purposes was a "reasonably necessary" limitation
on private ownership, to protect the community from the loss of the services of
such animals by their slaughter by improvident owners, tempted either by greed of
momentary gain, or by a desire to enjoy the luxury of animal food, even when by
so doing the productive power of the community may be measurably and
dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the
poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful
subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably
necessary for the purpose sought to be achieved and not unduly oppressive upon individuals,
again following the above-cited doctrine. There is no doubt that by banning the slaughter of these
animals except where they are at least seven years old if male and eleven years old if female upon
issuance of the necessary permit, the executive order will be conserving those still fit for farm work
or breeding and preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original
executive order, we cannot say with equal certainty that it complies with the second
requirement, viz., that there be a lawful method. We note that to strengthen the original measure,
Executive Order No. 626-A imposes an absolute ban not on the slaughter of the carabaos but on
their movement, providing that "no carabao regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one province to another." The object of the
prohibition escapes us. The reasonable connection between the means employed and the purpose
sought to be achieved by the questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one province will not prevent their
slaughter there, any more than moving them to another province will make it easier to kill them
there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive
order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the
movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it
should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still
have to reckon with the sanction that the measure applies for violation of the prohibition. The
penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by
the executive authorities, usually the police only. In the Toribio Case, the statute was sustained
because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial
and conviction of the accused. Under the challenged measure, significantly, no such trial is
prescribed, and the property being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander,
were returned to the petitioner only after he had filed a complaint for recovery and given
a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the
carabaos when ordered by the trial court. The executive order defined the prohibition, convicted
the petitioner and immediately imposed punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving him a chance to be heard, thus
denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly
dispensed with notwithstanding the usual requirement for these minimum guarantees of due
process. It is also conceded that summary action may be validly taken in administrative
proceedings as procedural due process is not necessarily judicial only. 20 In the exceptional cases
accepted, however. there is a justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the need to correct it.

In the case before us, there was no such pressure of time or action calling for the petitioner's
peremptory treatment. The properties involved were not even inimical per se as to require their
instant destruction. There certainly was no reason why the offense prohibited by the executive
order should not have been proved first in a court of justice, with the accused being accorded all
the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v.
Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been
pronounced not by the police only but by a court of justice, which alone would have had the
authority to impose the prescribed penalty, and only after trial and conviction of the accused.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated
property as prescribed in the questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other similar institutions as the Chairman
of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos."
(Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition,
if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption.
One searches in vain for the usual standard and the reasonable guidelines, or better still, the
limitations that the said officers must observe when they make their distribution. There is none.
Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity
and by what criteria shall they be chosen? Only the officers named can supply the answer, they
and they alone may choose the grantee as they see fit, and in their own exclusive discretion.
Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized
within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid
delegation of legislative powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power
because the method employed to conserve the carabaos is not reasonably necessary to the
purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner
of the property confiscated is denied the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative authorities of the power to
adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and
militates against the doctrine of separation of powers. There is, finally, also an invalid delegation
of legislative powers to the officers mentioned therein who are granted unlimited discretion in the
distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive
Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander who confiscated
the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance
with its mandate. The law was at that time presumptively valid, and it was his obligation, as a
member of the police, to enforce it. It would have been impertinent of him, being a mere
subordinate of the President, to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself
did not feel they had the competence, for all their superior authority, to question the order we now
annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw
them, this case would never have reached us and the taking of his property under the challenged
measure would have become a faitaccompli despite its invalidity. We commend him for his spirit.
Without the present challenge, the matter would have ended in that pump boat in Masbate and
another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed
without protest, and soon forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to
invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like
expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise
of protection. They become truly meaningful, and fulfill the role assigned to them in the free society,
if they are kept bright and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed
above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and
the amount thereof is ordered restored to the petitioner. No costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento
and Cortes, JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.