EN BANC

[G.R. No. 88211. October 27, 1989.]

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.

MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC,
TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by
its President, CONRADO F. ESTRELLA , petitioners, vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG,
SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL
RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice,
Immigration Commissioner, Secretary of National Defense
and Chief of Staff, respectively, respondents.

RESOLUTION

PER CURIAM : p

In its decision dated September 15, 1989, the Court, by a vote of eight
(8) to seven (7), dismissed the petition, after finding 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 pose a threat to national interest and welfare
and in prohibiting their return to the Philippines. On September 28, 1989,
former President Marcos died in Honolulu, Hawaii. In a statement, President
Aquino said:

In the interest of the safety of those who will take the death of
Mr. Marcos in widely and passionately conflicting ways, and for the
tranquility of the state and order of society, the remains of Ferdinand E.
Marcos will not be allowed to be brought to our country until such time
as the government, be it under this administration or the succeeding
one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p.
443.]

On October 2, 1989, a Motion for Reconsideration was filed by

petitioners, raising the following major arguments:
1. Â to bar former President Marcos and his family from returning to
the Philippines is to deny them not only the inherent right of citizens to
return to their country of birth but also the protection of the Constitution and
all of the rights guaranteed to Filipinos under the Constitution;
2. Â the President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
 3. Â there is no basis for barring the return of the family of former
President Marcos.
Thus, petitioners prayed that the Court reconsider its decision, order
respondents to issue the necessary travel documents to enable Mrs. Imelda
R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc,
Tommy Manotoc and Gregorio Araneta to return to the Philippines, and
enjoin respondents from implementing President Aquino's decision to bar the
return of the remains of Mr. Marcos, and the other petitioners, to the
Philippines.
Commenting on the motion for reconsideration, the Solicitor General
argued that the motion for reconsideration is moot and academic as to the
deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being
invoked by the Marcoses under the label 'right to return', including the label
'return of Marcos' remains, is in reality or substance a 'right' to destabilize
the country, a 'right' to hide the Marcoses' incessant shadowy orchestrated
efforts at destabilization." [Comment, p. 29.] Thus, he prays that the Motion
for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. Â It must be emphasized that as in all motions for
reconsideration, the burden is upon the movants, petitioner herein, to show
that there are compelling reasons to reconsider the decision of the Court.
2. Â After a thorough consideration of the matters raised in the
motion for reconsideration, the Court is of the view that no compelling
reasons have been established by petitioners to warrant a reconsideration of
the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening
event, has not changed the factual scenario under which the Court's decision
was rendered. The threats to the government, to which the return of the
Marcoses has been viewed to provide a catalytic effect, have not been
shown to have ceased. On the contrary, instead of erasing fears as to the
destabilization that will be caused by the return of the Marcoses, Mrs. Marcos
reinforced the basis for the decision to bar their return when she called
President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino,
who is the "legal" President of the Philippines, and declared that the matter
"should be brought to all the courts of the world." [Comment, p. 1; Philippine
Star, October 4, 1989.]
3. Â Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has unstated residual
powers which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in
the article on the Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the members
of the Constitutional Commission of 1986 to limit the powers of the President
as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those
relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.
That the President has powers other than those expressly stated in the
Constitution is nothing new. This is recognized under the U.S. Con stitution
from which we have patterned the distribution of governmental powers
among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be

vested in a President of the United States of America." In Alexander
Hamilton's widely accepted view, this statement cannot be read as
mere shorthand for the specific executive authorizations that follow it
in [sections] 2 and 3. Hamilton stressed the difference between the
sweeping language of article II, section 1, and the conditional language
of article I, [section] 1: "All legislative Powers herein granted shall be
vested in a Congress of the United States . . ." Hamilton submitted that
"[t]he [article II] enumeration [in sections 2 and 3] ought therefore to
be considered, as intended merely to specify the principal articles
implied in the definition of execution power; leaving the rest to flow
from the general grant of that power, interpreted in comformity with
other parts of the Constitution . . ."

I n Myers v. United States, the Supreme Court accepted

Hamilton's proposition, concluding that the federal executive, unlike
the Congress, could exercise power from sources not enumerated, so
long as not forbidden by the constitutional text: "The executive power
was given in general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by direct
expressions where limitation was needed . . ." The language of Chief
Justice Taft in Myers makes clear that the constitutional concept of
inherent power is not a synonym for power without limit; rather, the
concept suggests only that not all powers granted in the Constitution
are themselves exhausted by internal enumeration, so that, within a
sphere properly regarded as one of "executive" power, authority is
implied unless there or elsewhere expressly limited. [TRIBE, AMERICAN
CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the

President's implied or residual powers is tantamount to setting the stage for
another dictatorship. Despite petitioners' strained analogy, the residual
powers of the President under the Constitution should not be confused with
the power of the President under the 1973 Constitution to legislate pursuant
to Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister),

there exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders, or
letters of instruction, which shall form part of the law of the land.

There is no similarity between the residual powers of the President

 under the 1987 Constitution and the power of the President under the 1973
Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6
refers to an express grant of power. It is not implied. Then, Amendment No.
6 refers to a grant to the President of the specific power of legislation.
4. Â Among the duties of the President under the Constitution, in
compliance with his (or her) oath of office, is to protect and promote the
interest and welfare of the people. Her decision to bar the return of the
Marcoses and subsequently, the remains of Mr. Marcos at the present time
and under present circumstances is in compliance with this bounden duty. In
the absence of a clear showing that she had acted with arbitrariness or with
grave abuse of discretion in arriving at this decision, the Court will not enjoin
the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for
Reconsideration for lack of merit." Gutierrez, Jr., Cruz, Paras, Feliciano,
Padilla, Bidin and Sarmiento, JJ., maintained their dissent. See separate
dissenting opinions.

Separate Opinions
CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the

petition. The death of Marcos has not plunged the nation into paroxysms of
grief as the so-called "loyalists" had hoped. By and large, it has been met
with only passing interest if not outright indifference from the people.
Clearly, the discredited dictator is in death no El Cid. Marcos dead is only an
unpleasant memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security
when he was already moribund, that feeble threat has died with him. As the
government stresses, he has been reduced to a non-person (which makes
me wonder why it is still afraid of him). His cadaver is not even regarded as
a symbol of this or that or whatever except by his fanatical followers. It is
only a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do
than debating over a corpse that deserves no kinder fate than dissolution
and oblivion. I say let it be brought home and, buried deep and let us be
done with it forever.

PARAS, J., dissenting:

I find no reason to deviate from the dissenting opinion I have already

expressed.
Firstly, the former President, although already dead, is still entitled to
certain rights. It is not correct to say that a dead man, since he is no longer
a human being, has ceased to have rights. For instance, our Revised Penal
Code prohibits the commission of libel against a deceased individual. And
 even if we were to assume the non-existence anymore of his human rights
what about the human rights of his widow and the other members of his
family?
Secondly, up to now, the alleged threats to national security have
remained unproved and consequently, unpersuasive. Our Armed Forces can
easily control any possible uprising or political and military destabilization. In
fact, the converse appears to be nearer the truth, that is, if we do not allow
the remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition
for the return is granted. To refuse the request can mean a hardening of
resistance against the well-intentioned aim of the administration. Upon the
other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry. prLL

Finally, the entire world will surely applaud our government's act of
mercy. As Shakespeare once wrote "the quality of mercy is not strained."
Surely, compassion is the better part of government. Remove mercy, and
you remove the best reason against civil strife, which if not abated can turn
our country into a mainstream of fiery dissent and in the end, as one great
man has put it, the question will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened

after decision in this case had been rendered, was pre-empted and foreseen
in my original dissenting opinion. There I said that the first cogent and
decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buried in this country." I have only to add a
few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2)
rights, i.e. to return to and die in this country. The remaining right of this
Filipino that cries out for vindication at this late hour is the right to be buried
in this country. Will the respondents be allowed to complete the circle of
denying the constitutional and human right of Mr. Marcos to travel which, as
stated in my dissenting opinion, includes the right to return to, die and be
buried in this country? The answer should be in the negative if the
Constitution is to still prevail; the answer should be in the negative if we are
to avoid the completely indefensible act of denying a Filipino the last right to
blend his mortal remains with a few square feet of earth in the treasured
land of his birth.
Those who would deny this Filipino the only constitutional and human
right that can be accorded him now say that the constitutional and human
right to be buried in this country would apply to any Filipino, except Mr.
Marcos, because he was a dictator and he plundered the country. This is the
most irrelevant argument that can be raised at this time. For, our democracy
is built on the fundamental assumption (so we believe) that the Constitution
and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic, as long as he is a Filipino.
 It is said that to accord this Filipino the right to be buried in this country
would pose a serious threat to national security and public safety. What
threat? As pointed out in my dissenting opinion, the second cogent and
decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "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." Recent events have, to my mind, served to
confirm the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to
national security, the situation cannot be any worse with a dead Marcos
returning. For, a dead Marcos will return to be buried into mother earth,
where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette, is the "unanimity of
the graveyard."
It is said that, while a dead Marcos has been rendered impotent to
threaten national security, his supporters would pose that threat to national
security. This argument is untenable as it is without merit. As I see it,
Marcos' supporters pose a greater threat to peace and order, with Marcos
deprived of his right to burial in this country. On the other hand, if the
remains of Mr. Marcos are brought to the country and allowed the burial to
which he is constitutionally and humanly entitled, Marcos' supporters would
be deprived of an otherwise potent argument — so conducive to mass
protests and even violence — that their idol has been cruelly denied the right
to be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or
human rights, to speak of. This contention entirely begs the issue. In the first
place, one cannot overlook that the right of Mr. Marcos, as a Filipino, to be
buried in this country, is asserted not for the first time after his death. It was
vigorously asserted long before his death. But, more importantly, the right of
every Filipino to be buried in his country, is part of acontinuing right that
starts from birth and ends only on the day he is finally laid to rest in his
country.
This dissenting opinion does not pretend to deny the Philippine
government the right to lay down conditions for the burial of Mr. Marcos in
this country, but I submit that these conditions must, as a fundamental
postulate, recognize the right of the man, as a Filipino, to be buried in this
country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this
country now. Without in any way affecting my respect and regard for my
brethren and sisters in the majority, I am deeply concerned and greatly
disturbed that, with their decision banning a dead Marcos from burial in this
country, they have passed an opportunity to defuse a constitutional crisis
that, in my humble assessment, threatens to ignite an already divided
nation. Regrettably, they have ignored the constitutional dimension of the
problem rooted in the ageless and finest tradition of our people for respect
 and deference to the dead. What predictably follows will be a continuing
strife, among our people, of unending hatred, recriminations and
retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the
immediate return and burial in the Republic of the Philippines of former
President Ferdinand E. Marcos, subject to such conditions as the Philippine
government may impose in the interest of peace and order.

SARMIENTO, J., dissenting:

The case has curious trappings of a deja vu, the shoe being on the
other foot, yet, as I stated before, I can not allow personal emotions to soften
my "hardened impartiality" and deny, as a consequence, the rights of the
ex-President's bereaved to bury his remains in his homeland, and for them
to return from exile. As I had, then, voted to grant the petition, so do I vote
to grant reconsideration.
I have gone to lengths to locate in the four corners of the Constitution,
by direct grant or by implication, the President's supposed "residual" power
to forbid citizens from entering the motherland reiterated in the resolution of
the majority. I have found none.
I am not agreed, that:

3. Â Contrary to petitioner's view, it cannot be denied that the

President, upon whom executive power is vested, has unstated
residual powers which are implied from the grant of executive power
and which are necessary for her to comply with her duties under the
Constitution The powers of the President are not limited to what are
expressly enumerated in the article on the executive Department and
in scattered provisions of the Constitution. This, notwithstanding the
avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the genera grant of
executive power.

It is a nice word game, but it is nothing else. For, if the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori,
prescribed a diminution of executive power. The Charter says that the right
may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It
would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not
only against legislative encroachments on individual liberties, but more so,
against presidential intrusions. And especially so, because the President is
the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.
 That "[t]he threats to the government, to which the return of the
Marcoses has been viewed to provide a catalytic effect, have not been
shown to have ceased" (Res., 3) is the realm of conjecture, speculation, and
imagination. The military has shown no hard evidence that "the return of the
Marcoses" would indeed interpose a threat to national security. And
apparently, the majority itself is not convinced ("has been viewed . . .")
That Mrs. Marcos has referred to President Corazon Aquino as an
illegitimate President, does not, so I submit, reinforce alleged fears of a
massive destabilization awaiting the nation. The military has said over and
over that Marcos followers are not capable of successful destabilization
effort. And only this morning (October 27, 1989), media reported the
assurances given to foreign investors by no less than the President, of the
political and economic stability of the nation, as well as the Government's
capability to quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal
impressions, however, are beside the point. I reiterate that the President has
no power to deny requests of Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their just deserts here too. And let
the matter rest.
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