In 1989, ex-President Ferdinand Marcos was dying. Exiled in Hawaii since February 1986, the Marcos family asked the Philippine government of President Corazon Aquino to let them to return to the country and allow Marcos to die here. Aquino refused, arguing that the return of the Marcoses would have dire consequences on political stability and economic recovery. Marcos took legal action and filed a special civil action suit for mandamus and prohibition with the Supreme Court. Made respondents were a number of senior officials of the Aquino administration led by then Department of Foreign Affairs Secretary Raul Manglapus. The writ of mandamus would order the respondents to issue the Marcoses the necessary travel documents to allow their return while the writ of prohibition would enjoin them from implementing the president’s ban.
On Sept. 15, 1989 the SC rendered its decision. In Marcos vs. Manglapus (G.R. No. 88211), by a slim majority of eight to seven, it, through Justice Irene Cortes as ponente, upheld the government ban on the return of the Marcos family. It ruled that the president has the power to impose such a ban and that she did not act arbitrarily or with grave abuse of discretion.
What power was the president exercising when she denied the right of the Marcos family to return to their country? In answering this question, Marcos vs. Manglapus clarified the nature and extent of the president’s executive power. The president, under the constitution, has specific powers; that is, powers explicitly granted to her by the constitution and enumerated therein. But “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.”
The power involved was the president’s “residual unstated power” that is “implicit in and correlative to” the president’s constitutional duties to serve and protect the people, maintain peace and order, protect life, liberty and property, and promote the general welfare. This is a wide discretionary power that allows the president to fulfill her duties as “steward of the people” and “protector of the peace.” Aquino was exercising this power when she imposed the ban on the return of the Marcoses and clipped their right to return to their country.
The president’s residual unstated power is still subject to the constitution and to the judicial power 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). In exercising its judicial review, the Court checks but does not supplant the executive. It merely ascertains whether the president has gone beyond the constitutional limits of her powers. It neither exercises the power vested in the president nor determines the wisdom of her acts. In Marcos vs. Manglapus, the Court resolved to determine whether Aquino’s claim that the return of the Marcoses would harm the national interest and the general welfare had factual basis. If such factual basis existed, the ban would be constitutional and there would be no grave abuse of discretion on Aquino’s part. The Court ruled affirmatively.
Students of constitutional law will note that the residual unstated power of the president, insofar as it is anchored upon and incidental to the promotion and protection of the general welfare (salus populi), is simply the police power of the state. The only significant difference is that whereas police power is traditionally vested in the legislature, Marcos vs. Manglapus underscored and highlighted that the executive too has inherent police power derived from and correlative to the constitutional duties and obligations of that office.
Since Marcos vs. Manglapus laid down the doctrine of the president’s residual unstated power three decades ago, no Philippine president has again used this power. To secure the legality and validity of their acts, presidents since Aquino have relied on the specific powers of their office; powers that have textually demonstrable basis and limits. President Fidel Ramos’s emergency power to solve the energy crisis was Congress-delegated (Article VI, Section 23(2)). President Joseph Estrada’s all-out war against the Moro Islamic Liberation Front (MILF) in 2000, President Gloria Macapagal-Arroyo’s “states of emergencies” in 2003, 2006, and 2008, and the incumbent’s perpetually extended martial law in Mindanao are all anchored on the specific power of the president as commander-in-chief (Article VII, Section 18). Even the incumbent’s three-year old “anti-drugs war” arguably rests on the presidency’s executive power (Article VII, Section 1) and duty to faithfully execute the laws (Article VII, Section 17). The laws in this instance being the Dangerous Drugs Act and related provisions of the Revised Penal Code. There is thus no need for President Rodrigo Duterte to invoke Marcos vs. Manglapus as legal ground for his forceful approach to eradicating the country’s narco-industry and he has happily not done so.
Reliance on the presidency’s specific powers is a fortunate development as these are checked and constrained by both Congress and the judiciary. The president’s residual unstated power, upon the other hand, is clipped more amorphously by a constitution that is still subject to judicial interpretation when the occasion is ripe for the Court to review the constitutionality of acts done on the basis of this power.
Millard Lim is a lecturer at the Department of Political Science of the Ateneo de Manila University.