1. Provide, as an international legal practitioner/international human rights expert, a briefing memorandum for the Secretary of Foreign Affairs, composed of two parts

a. A briefing analysis of the contrasting opposite results of the two Supreme Court cases, focusing on the two excepts quoted below, citing applicable international conventions that the Philippines is a signatory to, and

b. Your recommendation on actions to comply with the dispositive of the UNHRC Opinion 24/2015

Marcos vs. Manglapus

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.

Issue:

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.

Held/Ratio: This case is a sui generis. Whether or not Marcos should be allowed to return is within the President’s residual unstated powers to protect the general welfare. Considering the danger to the public, Marcos should not be allowed to return and the President’s decision should be upheld.

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.

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.

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)]

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. 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.

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"?

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.

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.

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. 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.

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.

Justice Fernan, concurring:

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.

Justice Padilla, dissenting:

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.

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.

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.

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 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.

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 deny the 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.

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 deny the 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.

International School Alliance of Educations vs. Quisumbing

Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree 732, is a domestic educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents.

Accordingly, the School hires both foreign and local teachers as members of its faculty, classifying the same into two: (1) foreign-hires and (2) local-hires.

The School grants foreign-hires certain benefits not accorded local-hires. These include housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more than local-hires. The School justifies the difference on two "significant economic disadvantages" foreign-hires have to endure, namely: (a) the "dislocation factor" and (b) limited tenure.

International School Alliance of Educators contested the difference in salary rates between foreign and local-hires.

Petitioner claims that the point-of-hire classification employed by the School is discriminatory to Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination.

The Acting Secretary of Labor upheld the point-of-hire classification for the distinction in salary rates

Issue: Whether or not point-of-hire distinction valid.

Held/Ratio:

That public policy abhors inequality and discrimination is beyond contention. Our

Constitution and laws reflect the policy against these evils. The Constitution in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities."

International law, which springs from general principles of law,likewise proscribes

discrimination. General principles of law include principles of equity, i.e., the general principles of fairness and justice, based on the test of what is reasonable. The

Universal Declaration of Human Rights, the International Covenant on Economic,

Social, and Cultural Rights, the International Convention on the Elimination of All

Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and

Occupation - all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws.

The Constitution also directs the State to promote "equality of employment opportunities for all." Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example, prohibits and penalizes the payment of lesser compensation to a female employee as against a male employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in order to encourage or discourage membership in any labor organization.

Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7 thereof, provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: a.....Remuneration which provides all workers, as a minimum, with:

i.....Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those

enjoyed by men, with equal pay for equal work;

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. This rule applies to the School, its "international character" notwithstanding.

The employer has discriminated against that employee; it is for the employer to explain why the employee is treated unfairly.

The employer in this case has failed to discharge this burden. There is no evidence here that foreign-hires perform 25% more efficiently or effectively than the local-hires. Both groups have similar functions and responsibilities, which they perform under similar working conditions.

While we recognize the need of the School to attract foreign-hires, salaries should not be used as an enticement to the prejudice of local-hires. The local-hires perform the same services as foreign- hires and they ought to be paid the same salaries as the latter. For the same reason, the "dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the distinction in salary rates. The dislocation factor and limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded them which are not enjoyed by local-hires, such as housing, transportation, shipping costs, taxes and home leave travel allowances.