•

MARCOS VS. MANGLAPUS

An Inquiry on a Case That Tried Ferdinand E. Marcos
and Put the Supreme Court Also on Trial"

REMlGIO E. AGPAL()**

• I .

The subject of my lecture - Marcos vs. Manglapus 1 - is a case of an

individual citizen vs, the State. It is in this sense that it is similar to the
classic cases of Antigone vs. Kreon 2 in Sophocles' tragedy: Socrates vs.
Ath.:mi as presented in the Apology of Plato; Jesus Christ vs. Pontius Pilate4
as narrated in the gospel according to St. Luke; John Hampden vs. The
Kinl in 1683 during the times of absolute monarchy in England; and Jose
Rizal es, the Government of Spain in the Philippines6 in 1896. What is in-
volved in all these cases is the human or constitutional right of a citizen
who is dominated, oppressed, or tyrannized by a superior power, which

• may manifest in the form of a king, a democracy, a monarchy, an im-

perial government, or a presidential regime.
These superior powers are the same in nature, whether in ancient or
modem times, whether they assume the person of an Ozymandias with a
grim visage, or a Corazon C. Aquino, with a smiling face. They articulate
the same ideas on power, and they have the same tendency. Ozymandias
declared: ''My name is Ozymandias, king of kings: Look on my works,
ye mighty and despair]." Madame Corazon C. Aquino said: "I am in
power, and they are out.',8 As regards their tendency, Lord Acton has

• put it well: "Power tends to corrupt, and absolute power corrupts ab-
solutely.,,9

"Lecture delivered at the Faculty Center Conference Hall, University of the Philip-
pines, Dillman, Quezon City, February 12, 1990. It was originally scheduled to be deliv-
. ered on November 22, 1989 but it had to be rescheduled twice-first, because of typhoon
Unsang :and second because of the failed December 1989 coup d'etat.

"Professor Emeritus of Political Science, College of Social Sciences, University of the

Philippines, Dillman, Quezon Oty.

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PPSJJune and December 1989

•
Since this is the case with superior powers, they must be regulated.
Their prerogative must be limited. Political science has discovered some
methods, techniques, or principles to check these powers; and three that
come to our mind immediately are the principle of separation of powers,
the idea of countervailing powers, and the concept of constitutionalism
or limited government, especially by means of a Billof Rights.
I wish I had all the time in one lecture to discuss all these classic
cases, but since my subject is Marcos os. Manglapus, I must zero in on this
case if I desire to articulate something significant within my limited time.
However, because I would like to identify certain criteria or perspectives
•
for the assessment and critique of Marcos vs. Manglapus, I would like to
consider at least one classic case - the Hampden Case. This should serve
as the source of the opening strains of the theme of this lecture. To enrich
this emerging theme, I shall add to it some ideas of Chief Justice Marcelo
Fernan, for Marcos vs. Manglapus was decided by the Fernan Supreme
Court. .

The John Hampden Case involved a freeholder of Buckinghamshire

who refused to pay twenty shillings, a tax imposed upon every English
freeholder as provided by the writ of Charles I in 1636. The tax was to be
used for the public good - for the construction of ships for the defense
of England. John Hampden asserted the right of a freeholder not to be
imposed of any assessment except only as prescribed by Parliament. In
other words, he was invoking the principle of "no taxation without repre-
sentation." In 1638 when John Hampden invoked this principle, it was
not yet an established principle of the British constitution.
The original decision on this case was a split 7-5 decision against
John, Hampden, quite similar to the split 8-7 decision of the Supreme
Court in Marcos vs.Manglapus against Ferdinand Marcos.
The majority view in the John Hampden Case was written by Justice
Robert Berkeley. He said:
I agree the parliament to be a most ancient and supreme court, where the
king and peers, as judges, are in person, and the whole body of the commons rep-
resentatively. These peers and commons may..., amongst other things, make
known their grievances...[But] the law knows no such king- yoking policy. The
law is, itself an old and trusty servant of the kings; it is his instrument or means
which he useth to govern his people by. I never read nor heard the Lex was Rex;

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•
but it is common and most-true that Rex is Lex, for he is...a living, an acting law.1o

This ruling, justifying the principle of royal prerogative, had been

cast into the dustbin of history when in 1641 Parliament passed the "Act
Abolishing Ship Money.',n This act vindicated the position of John
.Hampden and established the principle of "no taxation without repre-

•
sentation." This principle found its way into the American Constitution
of 1787. It is now enshrined in the Philippine Constitution as a legacy of
the Americans. Today, it is also enthroned in all the constitutional
governments of the world. If I mention all these as footnotes to the John.
Hampden Case, a very small seed of a case, I wish to stress the point that a
particular case, if fertile in constitutional principle, can grow into a
mighty, tall, and strong molave that can provide benefits to people in the
world for several generations.
The John Hampden Case is not only significant because from it grew
the mighty principle of "no taxation without representation;" it is also
important because it is the seed from which the principle of a Libertarian
State under the Rule of Law germinated, precluding the development of
a Police State and making every man in Britain a Hampden.
• Sir Ivor Jennings, an eminent British political scientist, stressed this
point in his commentary on the John Hampden Case. He said:
Every man in Britain is a Hampden, for he will not be "pushed around" by
any Jack-in-Office.... In a Police State the law is regarded as an instrument of
governmental control, a series of commands laid down by the governors for the
governed. In England more than elsewhere the law is attuned to social conven-
tion, for it has grown with the people and therefore has both grown out of and
into their customs. Hardly anybody, except the professional lawyer, pretends to
know what the law is, but everybody knows what is right and wrong, and their
vague conception is not very far from a popular generalization of the law itself. 12

• Sir Ivor Jenning's concepts of "Police State" and the law growing out
of and into the customs of the people are two criteria which could be ap-
plied by any person wishing to evaluate any judicial case or the court it-
self. Chief Justice Feman has also given us criteria by which to evaluate a
judicial case or a court. These criteria are roles of the Supreme Court.
The occasion which provided the Chief Justice the opportunity to ar-
ticulate his ideas on the roles of the Supreme Court wa~ the tenth Nation-

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PPSJJune and December 1989

•
al Convention of the Philippine Political Science Association on May 26,
1989. In this convention, Chief Justice Fernan gave a lecture on "The
Judiciary and the Challenges of the Times." The roles of the Supreme
Court in meeting the challenges of our times, according to the Chief Jus-
tice are: (l) last bulwark of the Constitution and the Rule of Law; and (2)
defender of the constitutional rights of every Filipino citizen.J3
The role of last bulwark of the Constitution and the Rule of Law was
discussed in the middle of his lecture where he analyzed the main
problems of the nation, namely, a plundered economy; massive graft and
corruption; and the legacy of one-man rule.
•
The role of defender of the constitutional rights of every Filipino
citizen was not identified explicitly. However, in the conclusion of his
lecture, his peroration said that the Supreme Court would provide justice
to every Filipino citizen by defending his rights. Justifying this position,
the Chief Justice said that the suffering of injustice by any Filipino would
be suffered by the entire nation. I observed in my mind while listening
to him that what he had posited was actually a paraphrase of the Filipino
folk saying: liAng sakit ng kalingkingan ay damdam ng huang katatuan:"
("The pain suffered by the little finger is suffered by the whole body.")
In an open forum which followed the lecture of the Chief Justice, I
made a comment and raised a question. I said:
I am happy to hear from the Chief Justice that the roles of our Supreme
Court in our critical times are last bulwark of the Constitution and the Rule of
Law and defender of the constitutional rights of every Filipino citizen. My heart
also warmed upon hearing his words that the reason for the second role is that
the pain of injustice suffered by any Filipino is suffered by the entire nation. The
idea articulated by the Chief Justice is similar to the great idea expressed by John
Donne:

No man is an island entire of itself; Every man is a piece of the

conlinent....Any man's death diminishes me, Because I am involved in mankind;
And therefore never send to know for whom the bell tolls; It tolls for thee.

Listening to your words, and reflecting on them, I think of President

Marcos who is ailing and perhaps even dying in Honolulu, Hawaii.
Now, I would like to ask my question: "What will the Supreme Court do
to this Filipino who had petitioned the Sandiganbayan to return to the

4
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Philippines last year in order that, as a Filipino citizen with rights under
the Constitution, he would. be able to defend himself from his
accusers?" '14
The Chief Justice declined to answer on the grounds that before the
Supreme Court Marcos es, Manglapus was already sub judice.

n
Marcos vs. Manglapus, which was decided by the Supreme Court by
an 8-7 vote against former President Marcos on September 15, 1989, is a
case that will haunt the Supreme Court and the Filipino nation in the
years to come until the wrong committed in the decision is righted. I
believe it will interest history, law, and political science scholars, as well
as literary writers, in the future as a classic case of an individual versus
the superior power of the state. A detailed discussion, as well as an
analysis and critique of this case, therefore, is useful.
This second section will present the chronology of the case and dis-

. cuss the main arguments of the petitioners and the respondents. The
analysis, critique, and evaluation of the Supreme Court decision will be
taken up in the last or third section of the lecture.
The following items constitute the principal data of the chronology of
Marcos vs(JAanglapus. .
1. May 23, 1989. Former Senator Arturo Tolentino and former
Solicitor General Estelito Mendoza submitted a petition to the
Supreme Court for and in behalf of the petitioners: former Presi-
dent Ferdinand E. Marcos and his immediate family; former

• Speaker Nicanor Yniguez, who was seeking the enforcement of a

constitutional public right; and the Philippine Constitution As-
sociation (PffiLCONSA), which wa~ represented by its president,
former Secretary of Agrarian Reform Conrado F. Estrella. The
petition prayed that the Supreme Court issue a writ of man-
damus to compel the issuance of travel documents to former
President Marcos and his family, and enjoin the respondents -
Raul Manglapus, Secretary of Foreign Affairs; Catalino
Macaraeg, Executive Secretary; Sedfrey Ordonez, Secretary of

• 5
PPSJJune and December 1989
.
Justice; Miriam Defensor-Santiago, Commissioner of Immigra-
tion and Deportation; Fidel Ramos, Secretary of National De-
fense; and Renato de Villa, Chief of Staff of the Armed Forces of
the Philippines - from implementing the government's decision
to bar the return to the Philippines of Marcos. and his family.

2. May 25, 1989. The Supreme Court, without giving due course to
the petition, resolved to require the respondents to comment on
the petition.
3. June 6, 1989. Solicitor General Francisco Chavez, for and in ~
half of the respondents, submitted his comment on the petition to
the Supreme Court.
4. June 19,1989. The Supreme Court resolved to set the oral hearing
of the case on June 27,1989.
5. June 27, 1989. As scheduled, the oral hearing took place, with
former Senator Tolentino and former Solicitor General Mendoza
appearing for the petitioners and Solicitor General Chavez ap-
pearing for the respondents. Former Chief Justice Enrique Fer-
nando and former Senator Ambrosio Padilla served as amicus
curiae.
6. July 10,1989. The lawyers for the petitioners and the ~unsel for
the respondents submitted their memoranda on the case to the
Supreme Court.
7. September IS, 1989. The Supreme Court, with Madame Justice
Irene Cortes as ponenie, promulgated its decision on the case

•
against the petitioners.
8. October 2, 1989. The lawyers of the petitioners filed a motion for
reconsideration of the decision of the Supreme Court.
9. October 13, 1989. The Supreme Court affirmed its original
decision against the petitioners.
The essential facts of the case may be summarized as follows:

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• 1. Former President Marcos and his family were forced to be exiled

from the Philippines to Hawaii after a successful coup d'etat, led
by former Secretary of National Defense Juan Ponce Enrile and
General Fidel V. Ramos. which was subsequently.supported by a
so-called "People Power Revolution" on February 22-25, 1986
and by the United States.

• 2. The Marcoses, especially former President Marcos wanted to

return to their homeland. When Marcos' health deteriorated, his
wish to return to the Philippines became an obsession. Eventual-
ly, former Senator Tolentino and former Solicitor General Men-
doza filed a petition for mandamus and prohibition to the
Supreme Court to enable Marcos and his family to return to the
Philippines.
3. The Aquino government refused to allow Marcos and his fami-
ly-in the case of former President' Marcos, dead or alive-to
return to the Philippines on the ground that their return would
endanger the national security and the national interest. of the
country.•

• From the great conflict between the Marcoses and the Aquino
government, the major issues that developed were: .
1. Do the Marcoses have the right to return to the Philippines?
2. Does the Aquino government have the power to bar the return to
the Philippines of former President Marcos and his family?
The first of the two major grounds of the argument of the petitioners
in support of their position to return to the Philippines is a set of two
provisions of the Billof Rights of the Constitution:
• (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. IS . .

(2) The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful

• 7
 •
PPSJ June and December 1989

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 prescribed by law. 16
The second major ground of the petitioners is that President Aquino
has no power to bar former President Marcos and his family to return
home, for the President has neither the power to impair the liberty of
abode nor the power to impair the right to travel. In the case of the first
right, only a court may do so "within the limits prescribed by law." In
the case of the second, no law, whether issued by the executive or
•
enacted by the legislature, has authorized the President to do so.
One of the respondents' main defenses of their position to bar former
President Marcos and his family to return to the country was the doctrine
of "political question," which is a basis for the Supreme Court to dismiss
a case, since cases involving political questions are non-justiciable. Their
counsel, Solicitor General Chavez, emphasized this in his comments, oral
argument before the Supreme Court, and memorandum.
What is a political question? Solicitor General Chavez said, quoting
among other definitions:

The term "political question" connotes what it means in ordinary parlance,

•
narnel y,aquestion ofpolicy. It refers to those questions which, under theConstitution,
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 01
the government. It is concerned withissues dependent upon thewisdom, notlegality,olll
particular measure. 17

Another major defense of the Solicitor General in opposing the peti-

tion for mandamus and prohibition was the contention that the President
has the power to bar former President Marcos and his family to return to
the Philippines based on the provisions of the Constitution with regard to
the protection of the people, as follows:
1. The prime duty of government is to protect the people. 18
2. The maintenance of peace and order, the protection of life, liberty, and
pruperty and the promotion of the general welfare are essential

8 •
 Agpalo

for the' enjoyment by all the people of the blessings of de-

mocracy.19

In other words, owing to the police power of the state, President

Aquino may bar, as she actually barred, former President Marcos and his
family to return to the country. This was done in order to protect the
people or for the maintenance of peace and order and the protection of
• life, liberty and property.
Answering the argument of the Solicitor General that the doctrine of
political question was applicable to the decision of the Aquino govern-
ment to bar former President Marcos and his family to return to the
Philippines, Tolentino- and Mendoza contended that the doctrine of
political question was restricted by the 1987 Constitution, for certain ac-
tions of the policyrnaking branches of the government are now justici-
able. To prove their contention, they pointed to the enlarged scope of the
judicial power under the 1987Constitution: .

Judicial power included the:diutY' .of courts of justice to settle actual controver-
sies inoolving rights which are legally demandtlble and enforceable and to determine whether

• or not there has been a grlWe abuse ofdiscretion amounti~ to lJuk of jurisdiction on the part
of any branch or instrumentality of the Government.

As regards the contention of the Solicitor General defending the

power of the President to bar former President Marcos and his family to
return to the country based on the provisions of the Constitution con-
cerned with protection of the people- with the police power of the
government-Tolentino and Mendoza answered that those constitutional
provisions are not sources of power of the President. In any case, they .
pointed out, the police power is not properly to be exercised by the ex-
• ecutive. It is a power exercised by the legislative branch.
The lawyers for the petitioners also claimed that the right to travel
was not only guaranteed by the Constitution but also by international
law. Moreover, Tolentino and Mendoza argued, the Marcoses are to be
guaranteed their right to travel because this is needed for the exercise or
enjoyment of other rights.

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PPSJ June and December 1989

The mandamus prayed for was applicable, the lawyers for the
petitioners, contended, for the issuance of travel documents was a mini-
sterial act. The writ of prohibition also prayed for was likewise ap-
plicable, for the respondents had a ministerial duty to recognize the
constitutional and human rights of former President Marcos and his
family. The lawyers for the petitioners also argued that even if the
respondents had a discretion to withhold the giving of travel documents
or perform acts that would bar Marcos and his family to return to the •
Philippines, this discretion was not allowable because it would be a grave
abuse of discretion to which the remedy of prohibition is available.
- The petition, comments, and the memoranda of the lawyers of both
the petitioners and the respondents brought out and discussed. more
legal points, some procedural and others substantive but they can be laid
aside. The presentation and discussion of the main arguments of the
petitioners and the respondents are sufficient.
The dramatic conflict between the petitioners and the respondents
through their lawyers will not be fully appreciated if their closing argu-
ments are not included in this lecture. Let us, therefore, present them
here.
The lawyers for the petitioners - Tolentino and Mendoza - con-
cluded their argument in their Memorandum with magisterial dignity: .
•
This Tribunal could be a powerful factor in attaining broad national recon-
ciliation, and at the same time uphold the supremacy of the Constitution, by
recognizing the right of former President Marcos and his family to come home.

President Aquino, with admirable statesmanship, has expressed, in demo-

cratic fashion, that she would respect and abide by the decision of this Honorable
Court.

A poet once wrote:

Breathes there a man with soul so dead

•
That never to himself has said:

This is my own, my native land.

10
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 Agpalo

• The only thought of Ferdinand E. Marcos today is to be able to come home

to die and be buried here, so that with his last dying breath he may be able to
say:

This is my own, my native land.

It is to the dying that we have to extend precious freedom the most. For
even 'as we recognize and affirm man's God-given dignity with which he was

• born and will die, we recognize and affirm ours. In our unceasing search for
justice, however imperfect it may be, we have to come to terms with the
unalterable truth that man is mortal but freedom is eternal. 1

The Solicitor General- Chavez - closing his oral argument before

the Justices of the Supreme Court, against the return of President Marcos
and his family to the Philippines, perorated with an argumentum ad
hominem, bristling ~ith hatred:
Ferdinand Marcos comes to us with a trial of looting, blood and suffering
behind him - the blood of our martyrs and the twenty-year agony of our
people. .

He comes to us not with a petition of right but with a threat of a kind of

mayhem, bloodshed, chicanery, and fraud that marked his detested residence in

• our country ...

This man is worthless to our country, dead or alive. His residual value lies
in whatever use can be made of him as defendant in the recovery of his hidden
wealth,

It is said that every man has a right to return to his home, but we - you
and I, our people - share that home... Can he call our people to his family,
whom he had imprisoned, traduced, mutilated, betrayed, and despoiled in the
twenty years he was entrusted with the duty to protect and improve it? Surely,
a man who has robbed and killed in our own home, even U he is related, will not
be welcome, especially if he comes armed with the intention and the means to
hurt us again ...

• There is an argument to be made for the return of a man to his country, but
there is none for the return of a dog to his vomit or a criminal to the scene of his
crime.ll

• 11
PPSJJune and December 1989

When the Supreme Court gave due course to Marcos vs. Manglapus, it
•
put former former President Ferdinand Edralin Marcos on trial. Marcos'
trial was dramatic, and the high point of the drama was the oral hearing
of the case in the Supreme Court on June 27,1989. The verdict on Marcos
vs. Manglapus was a close 8-7 decision against Marcos.
The Supreme Court, after it gave due course to Marcos vs. Manglapus,
itself was also put on trial in Metro Manila. The Supreme Court in con-
nection with Marcos V5. Manglapus became the subject of reports,
editorials, and comments by the most important newspapers of Metro
•
Manila after it ordered Solicitor General Chavez to comment on the peti-
tion for the Marcoses submitted by former Senator Tolentino and former
Solicitor General Mendoza. The high point of the trial of the Supreme
Court occurred after it promulgated its original decision on Marcos vs.
Manglapus on September 15, 1989. This time more Metro Manila
newspapers published reports on the Supreme Court in connection with
Marcos vs. Manglapus in their front pages. The editorials and comments
by columnists on the Supreme Court in relation to Marcos vs. Manglapus
also became more numerous and vigorous either for or against the
Supreme Court. The radio and the television, likewise, aired views and
comments, for and against the Supreme Court in connection with Marcos
vs. Manglapus.
The verdict on the Supreme Court by Metro Manila residents was
•
published by Vox Populi, a monthly magazine of public opinion, in its
issue of October 16-November 15, 1989. It was not simply an almost-
even split decision against the Supreme Court, for in rounded percent-
ages, the verdict by Metro Manilans was overwhelming against -
59%-41 % decision not in favor of - the Supreme Court. 23
The most perceptive of the Metro Manila newspapers and their
columnists, such as Dean Antonio Coronel of the Philippine Law School •
and Father Joaquin Bernas, President of Ateneo de Manila University,
were very critical of the Supreme Court.
Let us take a look at the critical editorial of the Philippine Daily Globe
on September 18,1989.

The sharpness with which the majority and minority opinions clash and
Chief Justice Fernan's crucial veto to tilt the decisions in favor of the administra-

12
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 Agpalo

•
tion are what will be remembered and what will fan continued debate over the
issue ...

What we were really all looking for in this landmark case was a verdict
whose wisdom could lift us from our dilemma and ambivalence. over \the issues
raised ...

Sadly, in this ruling, the sense of a convincing verdict is' absent. ·.The split
decision merely mirrors over our own disquiet and uncertainty over the issue."

• Manila Standard:

Concerning the critical comments of Dean Coronel, these are what he

wrote in' Manila Standard~ .
The Supreme Court has spoken. It has in effect said that the Constitution is
not for all men and not for all .seasons, but must yield to the exigencies of the mo- .
ment. The split decision has shown the best and the worst of the 15 wise men that
charted the course of constitutional progress of the land. When push comes to
shove, even wise men can compromise principle for political expediency. 25

If Dean Coronel's comments are more critical than the editorial of the
Philippine Daily Globe, Father Bernas' views articulated in Manila

• Chronicle, are even more critical than Dean Coronel's because Father Ber-
nas struck at the main foundation of the Supreme Court decision. After
pointing out that Justice Cortes, the ponente of the Court decision, said
that former President Marcos could not appeal to the Bill of Rights be-
cause "the Bill of Rights contains no provision protecting the right to
return to one's country," Father Bernas then explained how the ponente
reached this conclusion. He said:
She arrived at this conclusion by performing an emasculating surgery of the
Bill of Rights. But she did more than thal Having reduced the protection given
by the Billof Rights, she proceeded to expand the powers of the presidency at the
expense of the Court. A double or even a triple whammy of sorts. 26
• Father Bernas reiterated these points in another column three days
later, but in this column he added another very important point. He said
that by declaring a decision that emasculated the Bill of Rights, expanded
the powers of the President, and narrowed the scope of power of the
Supreme Court, the Supreme Court succeeded in "closing the door to
Ferdinand but opening it for some new Marcos." 27

•
PPSJJune and December 1989

•
Having made a report on the verdict on the Supreme Court that tried
President Marcos by Metro Manilans, I shall now analyze, assess, and
make a critique of the decision of the Supreme Court in Marcos vs.
Manglapus. I shall analyze and evaluate this decision in terms of five
criteria or perspectives: (1) from the perspective of world and Philippine
constitutional history; (2) in terms of the requirements of a valid and
good distinction of concepts or categories; (3) by applying the criterion of
the role of last defender of the constitutional rights of Filipino citizens;
and (5) in terms of an approach based on a hypothesized explanation that
attempts to feel and grasp the reason behind the decision of the Supreme
•
Court.
Let us begin with the perspective of world and Philippine constitu-
tional history. In tackling the case from this perspective, Justice Cortes
declared: "The issue is basically one of power: whether or not, in the ex-
ercise of the powers granted by the Constitution, the President may
prohibit the Marcoses from returning to the Philippines." 28 In positing
this to be the issue of the case, the ponente met frontally one of the two
main arguments of the lawyers for the petitioners and ruled against one
of the two principal arguments of the counsel for the respondents, based
on the doctrine of political question. The Supreme Court decision
declared that, while there are cases which remain excluded by the
doctrine of politicai question, Marcos vs. Manglapus was not a case that
•
can be excluded, for the 1987 Constitution has expanded the scope of
judicial power.
However, in analyzing the issue on power, owing to the fact that the
Court could not find an explicit provision in the Constitution granting
the President the power to bar a Filipino citizen to return to his country,
the Court saved this power by declaring it to be a "residual power" of the
President, which according to the highest tribunal, is lodged in the execu-
tive power of the President.29 •
The Supreme Court declared:
We hold the view that although the 1987Constitution imposes limitations
on the exercise of specific powers of the President, it maintains intact what is
tdditionally considered as within the scope of "executive power." Corrolarily,
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 specificpowers so enumerated. 30

14
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 Agpalo

What Justice Cortes calls residual power, the Chief Justice labels
"presidential prerogative.,,31
The concept "prerogative" was defined by John Locke in his classic
Two Treaties ofGovernment in 1690. Locke posited: "This power to act ac-
cording to discretion for the public good without the 8rescription of law
and even against it is that which is called prerogative." 2

• The prerogative is exerdsed by the executive. Hence, the prerogative

is actually executive prerogative, or in the Philippine situation, as Chief
Justice Feman called it, presidential prerogative.
While during the times of John Locke, the prerogative was valid, for
during that period it was still the era of powerful monarchs, we cannot
say the same today. Since 1690, at least three great liberal democratic
revolutions have taken place - the American Revolution of 1776, the
French Revolution of 1789, and the Philippine Revolution of 1896. These
revolutions smashed the prerogative replacing this concept with the
modem principle of constitutionalism or limited government. As consti-
tutional democracies or governments were established in various parts
of the world in the aftermath of these revolutions, the principle of
• constitutionalism in all the constitutional governments established has
been the Bill of Rights. However, the Bill of Rights cannot be an effective
bulwark of constitutionalism unless it is defended by the people, the
policymaking branches of the government, and' by an independent
Supreme Court.

The constitutional history of the Philippines is the stronger shield

that we Filipinos can use to defend the position that the President should
not be allowed to expand its power and the Bill of Rights should not be
eroded by means of concepts like residual power or presidential preroga-

• tive. The constitutional history of the Philippines shows clearly that the
trends in our. country are the limitation of executive power and the
strengthening of human and constitutional rights. The best way to prove
this point is to compare the changes made on executive power and con-
stitutional and human rights provided in the 1935, 1973 and 1987 Con-
stitutions. I wish I could elaborate and put details on this generalization,
but my lecture time is extremely limited. In any case, to most of us in
academe, this fact is well-known.

• 15
mllone,oct December 1989 ,

Moreover, Filipino experience during the martial law regime from

1972to 1981, even up to 1986, if our view of martial law is not formalistic
and legalistic, as well as our experience under the autocratic government
of Madame Aquino from February 25,1986 to February I, 1987, and even
up to the present time, shows that the unchecked power of the executive
or the executive power expanding through residual power is the cause
of misery and suffering of numerous individuals and various groups,
sectors, categories, and communities of people in our country; of much •
graft and corruption in the government; of the crisis in the economy; of
various crises that occurred in Philippine foreign relations; and the
general malaise in our society.
Considering the trends in world and Philippine constitutional his-
tory, related to Filipino experience in recent and contemporary times
from 1972to the present, one is compelled to conclude that the interpreta-
tion of executive power in Marcos tIS. Manglapus is reactionary. The
decision returns our country to John Locke's prerogative, which was al-
ready smashed by the great liberal democratic revolutions of the
eighteenth and nineteenth centuries. It is also horrible, for it paves the
road to a police state.
Our second criterion in assessing and evaluating the decision in ..
Marcos vs. Manglapus is based on the valid requirements of a good
distinction of concepts or categories. We were" taught in elementary logic
that in constructing or adopting classifications, we must follow the rule
that the categories in our classification must be mutually exclusive. The
rationale for this rule is to avoid overlapping of categories, which is
confusing.
The distinction between right to travel and the right to return made
by Justice Cortes in the decision of the Court is the secondary basis of the
decision to bar former President Marcos and his family to return to the •
Philippines. If valid, then the declared residual power of the President to
"bar Marcos and his family to return is sufficiently supported, for there is
no right to return that is guaranteed by the Bill of Rights. The distinction
made by Justice Cortes posits that the right to travel is explicitly provided
in the Bill of Rights and therefore it is guaranteed by the Bill of Rights;
but the right to return is not found explicitly in the Bill of Rights and
therefore it is not guaranteed by the Constitution.33

16 •
r AgpalQ

This method of making a distinction is classificatory hocus-pocus, for

it ignores the fact that the concept to travel is a process, which includes
movement to depart from a place and to return to it. One cannot validly
say that if one returns to his country, he does not travel. How can he
return to his country, if he will not travel? This obfuscation of the right to
travel definitely is classificatory hocus- pocus, but by this method the
Supreme Court succeeds in "perfonning an emasculating surgery on the
• Billof Rights," as Father Bernas said.
We are now in a good position to assess the validity of the decision of
the Supreme Court in Marcos tIS. Manglapus after our analysis of the major
ground of the decision - residual power or presidential prerogative: and
the secondary support - distinction between right to travel and the
right to return. Considering them together, we conclude that the decision
is invalid, or it collapses for lack of solid ground and strong support.
How can the decision in Marcos vs. Manglapus stand if it is based on
residual power or presidential prerogative that had been smashed by the
liberal democratic revolutions of world and Philippine constitutional his-
tory and replaced by the principle of constitutionalism? How can it hold
if it is supported by a concept derived from a classificatory scheme which
• confuses instead of illumines with convincing power?

Our third criterion is the role of the Supreme Court as last bulwark of
the Constitution and the Rule of Law. After Marcos vs. Manglapus per-
formed a classificatory hocus-pocus or an emasculating surgery on the Bill
of Rights," and after it expanded the executive power at the expense of the
Billof Rights and the Court, Imust conclude that the Supreme Court is now
abandoning the role oflast bulwark of the Constitution and the Ruleof Law;
and it is now becoming the first bulwark of emerging police state in our
country. The conclusion is strengthened further by the recent decision of the
.' Supreme Court in Valmonte vs. Renaio deVilla 34 legalizing and legitimizing
checkpoints by the police and the military along our roads and highways.

Our fourth criterion is the role of defender of the constitutional rights

of Filipino citizens. It is also clear that the Fernan Supreme Court is aban-
doning the role of defender of the constitutional rights of Filipino
citizens. What is clear is that it is now adopting the role of emasculator
of the constitutional rights of Filipino citizens. This conclusion is the
other but integral side of our preceding contention.

• 17
 PPSJ June and December 1989

Finally, we must also assess Marcos vs. Manglapus in terms of an ap-

, proach based on a hypothesized explanation which attempts to find the
reason why the Supreme Court, which on balance in the past had vindi-
cated itself as last bulwark of the Constitution and the Rule of Law and
defender of the constitutional rights of Filipino citizens, in MarCXJs VS.
Manglapus is now paving the road to a police state. I realize that this last
approach is difficult to apply, for in the last analysis, we will be forced to
inquire into the intentions of the Justices. Intentions, however, are dif-
ficult to study, for apparently they seem to be not amenable to empirical
analysis. Nevertheless, the attempt to know the reason behind the
•
decision has to be made, for it is a crucial problem in the understanding
of the Supreme Court. One justification for undertaking this approach is
that abstract concepts, apparently difficult to subject to empirical study,
can be operationalized by means of indicators of the concept. Our prin-
cipal reason for this approach, even if inherently difficult-even
dangerous-is that our hypothesized explanation can be corrected as
more data are gathered or discovered. In any case, it is subject to confir-
mation or disconfirmation in accordance with the methods of political
science.
The conceptual key to the reason behind the decision of the Supreme
Court in Marcos vs. Manglapus is the politicalization of the majority of
the Justices of the Supreme Court. A good indicator of the politicaliza-
tion of the majority of the Supreme Court Justices that voted to bar
former President Marcos and his family to return to the Philippines is
their obsession with the national security situation of the country. They
emphasized it in the beginning and end of the original decision; and the
Chief Justice focused his concurring opinion on it. Their resolution of the
motion for reconsideration stressed it again; and therefore, considering
that the majority of the justices- put too much emphasis on the national
security situation, one cannot avoid concluding that it is the brooding
35
omnipresence in their minds. Owing to the overpowering influence of
this factor upon the majority of the justices, including the Chief Justice,
•
they were political animals. As political animals, they must survive in
the political jungle. True, they still talk of legal principles, legal
provisions, legal citations, articles and sections of the Constitution, and
documents of international law. But these talks are part of their survival
formula in the rough-and-tumble of Philippjne politics. And what is
their survival formula? It is hypothesized that it is composed of the fol-

18
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~---~ Agpalo

lowing body of precepts and propositions: Hew closely to the President's

policy line. Support the President's policies, even if based on specula-
tions or lack of wisdom. If the President is not supported, the President
falls, since the Center already no longer holds. The Center no longer
holds, because things are falling apart. If the President falls, the Fernan
Supreme Court will also fall with the President and the Center.
I should end this lecture at this point, but since former President Fer-
Ie dinand E. Marcos was put on trial by the Supreme Court, Marcos should
be granted the right to articulate the last words on Marcos vs. Manglapus.
I shall quote his last words from a document that had found its way to
the Supreme Court.
While gathering data and notes for this lecture at the Supreme Court,
I found that the documents submitted to the highest tribunal concerning .
Marcos vs. Manglapus were not only the petition, comments, and
memoranda of the lawyers for the petitioners and the respondents but
also many other documents, one of which is a document signed by
former President Marcos himself-alone. Composed of 63 pages, it is en-
titled "FERDINAND E. MARCOS' OPPOSITION TO MOTION TO

• STRIKE OUT: (In support of his Right to Return Home).,,36 It is a docu-

ment originally submitted to the Sandiganbayan and dated September
28, 1988, exactly one year before he died in Honolulu, Hawaii. How did
this document find its way to the Supreme Court? Tolentino and Men-
doza submitted it as an "annex" to their "Petition" and "Memorandum"
to the Supreme Court in Marcos vs.Manglapus.
In this document, that with eerie inevitability did reach the Supreme
Court through Tolentino and Mendoza as if moved by the Moving Finger
of History or Fate, former President Marcos made an indictment against a
terrible prosecutor and a panel of partial judges, as well as a reminder to
• and a prophecy for any ruler or judge.

The Moving Finger writes, and having writ, Moveson; nor all your Peitynor
Wit Shall lure it back to cancel half of a line, Nor all your Tears wash out a Word of
it. 37

President Marcos said:

History is full of pebbles of truth. One of these predous pebbles is that you cannot hide
your fault by persecutingy.Eur enemies through unfair trial The andentAthenians committed

• 19
PPSJ June and December 1989

this crime against Socrates. The all time gadfly was accused by the Athenians of impossible
crimes thru a terrible prosecutor and then sentenced to death by a panel of partial judges. The
final plea of Socrates to his prosecutors ought not to be forgotten by any ruler or by any judge.
He said:

"xxx And now, 0 men who have condemned me, I would fain prophesy to
you; for I am about to die and in the hour of death, men are gifted with prophetic
power. And I prophesy to you, who are my murderers, that immediately after
my departure punishment far heavier than you have inflicted on me will surely
await you .... If you think you can prevent someone from censuring your evil lives,
you are mistaken; that is not a way of escape which is either possible or
honorable; the easiest and noblest way is not by disabling others but to improve
.
yourselves."

Three hundred nine years before Christ, the Anthenians tried to suppress
truth thru an unfair trial, thru violations of human rights. They failed and since
then, no man has succeeded for no one can still the truth."

NOTES
t Cited as Marcos et al. us. Manglapus et al. in the original decision in G.R. No. 88211,
promulgated on September 15,1989. The complete name of the case is Ferdinand E. Marcos,
Imelda R. Marcos, Ferdinand R. Marcos, [r., Irene M. Araneta, Imee M. Manetoe, Tomas
Manetoe, Gregorio Araneta, Pacifico E. Marcos, Nicanor Yniguez, and Philippine Constitu-
tion Association (PHILCONSA), represented by its president, Conrado F. Estrella,
•
Petitioners versus Honorable Raul Manglapus, Catalino Macaraig, Sedfrey Ordonez, Miriam
Defensor Santiago, Fidel Ramos, Renato de Villa, Respondents.
2Robert W. Corrigan, ed., Sophocles (New York: Dell Publishing Co., 1980), pp. 29-65.
3Platc, TheRepublic and Other Works, tr. by B. Jowett (Garden City, New York: Anchor
Press/Doubleday, 1973),pp. 445-470.
'The Holy Bible, The New King James Version (Manila: Philippine Bible Society, 1984).
Luke, 22:26-71: 23: 1-49.
sCarl Stephenson and Frederick G. Marcham, eds., Sources of English Constitutional His-
tory: A Selection of Documents From A.D. 600 to the Present (New York: Harper and Row,
1973), pp. 459-463 and 481-482.
•
6Horacio de la Costa, ed. and tr., TheTrial of Rizal (Manila: Ateneo de Manila, 1961).
7percy Bysshe Shelley, "Ozymandias," in Oscar Williams, ed., Immortal Poems of the
English Language (New York: Washington Square Press, 1960), p. 295.
8Corazon C. Aquino, "State of the Nation 1989," Manila Bulletin, pp. 1 and 37. The
quoted statement is on p. 1. This was delivered before the joint session of Congress, July 24,
1989.

20
•
 Agpalo

9John E.E. Dalberg Acton, Essays on Freedom and power (New York: Meridian Books,
1955),p. 335.
10stephenson and Marcham, op.cit., p. 461.
l1/bid., pp. 481-482.

.
12TheQueen's GotIernment (London: Penguin Books, 1954),pp. 10-11.
13Remigio E. Agpalo, "Notes on the 10th Annual Convention of the Philippine Political
Sdence Association," May 26,1989. (Typewritten).
14/bid.
151987 Philippine Constitution, Art. III, Sec. 1. Invoked in "Memorandum for
Petitioners," G.R. 88211,p. 7. (Typewritten).
16 . Section 6. p.9.
17Tanada tI. Cuenca, 103 Phil. 1051. Invoked in "Comment [for the Solicitor General],"
G.R. No. 88211,pp. 13-14. (Typewritten). (Underlining supplied by the Solicitor General)
181987 Philippine Constitution, Art. II, Section 4. Invoked in "Comment [for the
Solicitor General],"· p. 29. (Underlining supplied by the Solicitor General.)
191987 Philippine Constitution, Art. II, Section 5. Invoked in "Comment [for the
Solicitor General]," p. 29. (Underlining supplied by the Solicitor General.)
201987 Philippine Constitution, Art. VIII, Section 1. Invoked in "Memorandum for
Petitioners," p. 28. <Underlining by lawyers for petitioners.)
21"Memorandum for Petitioners," pp. 56-57.
22From the summation of the Solicitor General, published in full text in Philippines Free
Press, August 12, 1989, pp. 12-13. The quoted statements are on p. 13. Reacting strongly
against this peroration, a Justice of the Supreme Court moved to have the very strong words
of the Solicitor General expunged from the records of the Supreme Court No ruling was
made on this motion during the oral hearing.
23The Vox Populi survey was conducted on September 30 to October 4,1989. It used a
random sample of 950 respondents, "allqualified voters of Metro Manila and came from all
walks of life." (p, 4) The questions and answers concerning the above verdict are as fol-
lows: (p.7)

• Question: Do yuuagree with the Supreme Court decision not to allow Marcos to return?

Yes
% of Responses
40.87
No 59.12

Question: Do youwantMarcos buried herenowor after Some years?

Now 61.22
After someyears 38.7

• 21
PPSJ June and December 1989

24.rhe Philippine Daily Globe is published by Mr. Teodoro Locsin, [r., an avid supporter
of President Corazon C. Aquino. Several of the important speeches of President Aquino
were written by Mr. Loc:sin, Jr. The quoted excerpt from the editorial ison p. 4.
25Dean Antonio Coronel is a lawyer of the respondents in the Aquino-Galman murder
case. The comments were published in the issue of September 18, 1989;p. 4.
26Parther Bernas is an avid supporter of President Aquino. He was appointed by the
President to serve as a commissioner in the Constitutional Commission which drafted the
1987 Constitution. The quoted statements are in the September 22, 1989issue, on ,po 5.
IIManila Chronicle, September 25, 1989,p.5.

2BPonencia in Marcos tis. Manglapus, G.R. No. 88211, Mimeo., P: 4. On the other hand,
•
Justice Hugo E. Gutierrez, Jr. said that "the issue before us is one of rights and not of
power," Dissenting Opinion, mimeo., p. 2. Justice Gutierrez, inter alia, also stated:
1\ 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 br himself smacks of unequal protection of the laws." Ibid., pp. 1-2.

On the same point, Justice lsagani A. Cruz, posited:

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 guaranted 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. (Dissenting Opinion,
mimeo., p.4)

29 The Supreme Court reaffirmed this conclusion in its resolution of the motion for
reconsideration of the original decision in Marcos tis. Manglapus. The en bane resolution
declared:

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. (Mimeo., dated October 27,
1989,P.4).
30 Ponencia, p. 18.

3t Concurring opinion, mimeo., pp. 1-2 and p. 5.

:IZ(London: Everyman's Ubrary, 1924 and 1982), Book 11, Chapter 14, p.199.

22
•
 Agpalo

:D Ponmcia, pp. 11-12.

:MG.R. No. 83988, September 29,1989.

:II On the national security situation, the ponencia said:

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 dvilian officials, to mention
only a few. The documented history of the efforts of the Marcoses and their followers
to destablize the country, as earlier narrated in this ponencill 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 par-
ticular groups. But it is the catalytic effect of the return of theMarcoses that may prove to be the
pr01Jerbial final straw that would break the camel's back." (Ponenda,.P: 27) (Underlining in
the original.)
With regard to the factual basis that could endanger the national security, Justice Paras,
assessing a closed-door briefing of the Supreme Court by the military, said:
"Our Armed Forces have failed to prove this danger. They are bereft of hard evidence,

• and all they can rely on is sheer speculation" '(Dissenting Opinion, mimeo., p. 2.)
Justice Isagani Cruz made the same finding. He said:
"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" (Dissenting Opinion, mimeo.,
p.2.)
Justice Teodoro R. Padilla arrived at the same conclusion on the national security issue.
he said:
'I have carefully weighed and assessed the "briefing" given the Co~ by the

• highest military authorities of the land last 28 July 1989....It appears to me that the
apprehension entertained and expressed by the respondents, including those con-
veyed 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 translated into realities, would be "under control," as ad-
mitted to the Court by said military authorities, given the resources and facilities
at the command of govemmentfffhssenting Opinion, mimeo., p. 3.)
36In this document, President Marcos began his opposition to the "Motion to Strike
Out" by presenting his defense as a young lawyer before the Supreme Court in the pre-
World War IT Nalundasan Case (in which the Supreme Court acquitted him of the crime of
murder), pleading for the rule of law "not as an impersonal and abstract principle, nor as a

• 23
PPSJ June and December 1989

theoretical, absolute and unyielding rule of conduct conceived as an instrument of duress...

[or] instrument of vengeance...[but as] a Christian rule of human conduct dedicated to in-
stigate the inhumanities of humanity against humanity." (Mimeo., p. 2). Thereafter, Presi-
dent Marcos continued:
FIfty years thence, the undersigned finds himself against and alone fighting for his
liberty. But this is a more difficult fight, a fight that could smother even the staunchest of
spirits. In the twilight of his years, the undersigned is accused of the economic plunder of
his people and a conglomeration of crimes whose penalties will take more than a lifetime to
serve. The accusation so masterfully spread out around the world by his political detractors
has stained and stigmatizedhis name, the only priceless possession of any man. Against
the use and misuse of the government's panoply of powers....[a] midst the ...doubt about the
impartiality of our judiciary and against contrary counsel, the undersigned comes without
pause, to knock at the door of this Tribunal, seeking to enter and be afforded a chance, how-
ever faint it may be, to vindicate his innocence, his name and reputation.
He pleads for simple fairness, nothing more, nothing less. The government wants to
try him by publicity. He cries for a trial with due process. The government wants to try
him in absentia. He pleads for a trial in his presence. The government wants to try and con-
vict him on the basis of ex parte evidence. He prays for a chance to examine the evidence
against him. The government wants to try him while he is 10,000 miles away in the United
States. He says he is a Filipino and he cannot be denied the right to return to his homeland
for there is no man without a country. (ibid., pp. 4-5).

37Edward FItzgerald, ''Rubaiyat of Omar Khayyam of Naishapur," in Williams,

op.cit.,pp.350-363. The quoted stanza is on p. 359.
38"Opposition to 'Motion to Strike Out,''' p: 62
.

24
•