ZestAir, Marcos, and the Right to Travel and Return

On our way home from our week-long vacation in Baguio and Manila, we were scheduled to leave for Davao at 6:30 PM onboard ZestAir. At the boarding gate, someone announced that our flight would be delayed due to delay in turnaround, whatever that means. Instead, boarding would commence at 7:00 PM. But we boarded the plane, as cabin crews are wont to say, at twenty minutes past the hour of seven in the evening. 7:20 PM, for short.

As if it were not enough, the cabin crew further announced that take off would be delayed. This time it’s due to ground servicing. We took off at 8:30 PM.

That meant we were delayed for two hours. I was about to pity us when suddenly I thought of erstwhile President Ferdinand E. Marcos, the longest serving President of the Philippines. We were far luckier than him—luckier because we were certain to return home, while Marcos, when he left, was not. All we needed to do was to wait. Marcos had to go all the way to the Supreme Court and fight for his right to return.

The case of Marcos v. Manglapus (G.R. No. 88211 September 15, 1989) illustrates Marcos’s legal battle, a battle vainly fought, to assert his right to return to the country he called home, which he screwed up by the way.

After Marcos’ many years of absolute rule, he and his family fled the country and went to Hawaii. Badly ill, he wanted to return after three years in exile. Not so fast, said Tita Cory whose legitimacy was upheld in Lawyers League for a BetterPhilippines v. Aquino (G.R. No. 73748 - May 22, 1986).

Marcos went to the Supreme Court invoking his rights guaranteed under the Article III, Section 1 (Due process of law and equal protection clause) and Section 6 (Liberty of abode and right to travel clause) of the 1986 Constitution. But the same man, during his rule, didn’t scruple to trample others’ rights. Marcos also argued that his right to return to the Philippines is guaranteed under international law, specifically by the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.

On behalf of Tita Cory, however, Raul Manglapus, then Secretary of Foreign Affairs, argued that the government has a right to prevent him and his family from returning to keep the country peaceful and orderly. If Marcos be allowed to return, “such return and residence will endanger national security and public safety.”

In the Court’s view, the individual right involved is not Marcos’ right to travel, which is guaranteed in the Bill of Rights, rather it is their right to return, which is guaranteed by the UDHR, thus making the case “novel and without precedent in Philippines, and even in American jurisprudence.” The two rights are distinct, and thus case law on one should not be applied on another and vice versa.

How did the Court resolve the issue? “Our resolution of the issue will involve a two-tiered approach,” the Court said. “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 Marcoses to the Philippines poses a serious threat to national interest and welfare and decided to bar their return.”

The President has the power to prevent the Marcoses from returning, the Court ruled. “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.”

The Court further argued:

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…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.

Now, were there factual bases for Tita Cory to believe that the return of the Marcoses would pose serious threats to national safety and security? The Court believed so.

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.

Note that when Court decided this case, the vote was 8-7 of which five justices submitted their dissenting opinions.

In his dissent, for instance, Justice Cruz said that Marcos “as a citizen of the Philippines, is entitled to return to and live — and die — in his own country…That conviction is not diminished one whit simply because many believe Marcos to be beneath contempt and undeserving of the very liberties he flouted when he was the absolute ruler of this land.”

And:

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.

Barely two weeks after the decision was promulgated, Marcos died. He stayed for four more years in Hawaii. In 1993, Marcos did finally return home, cold and dead.

In the Court’s Resolution upholding its earlier Decision, Justice Cruz maintained his dissent as do other justices who dissented before.

“The death of Marcos has not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped,” Justice Cruz said. “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.”

“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.”