EN BANC
[ G.R. No. 225973, November 08, 2016 ]
SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES, MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EXDETAINEES LABAN SA DETENSYON AT ARESTO (SELDA), REPRESENTED BY DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARIO, FELIX C. DALISAY, AND DANILO M. DELAFUENTE,* PETITIONERS, VS. REAR ADMIRAL ERNESTO C. ENRIQUEZ (IN HIS CAPACITY AS THE DEPUTY CHIEF OF STAFF FOR RESERVIST AND RETIREE AFFAIRS, ARMED FORCES OF THE PHILIPPINES), THE GRAVE SERVICES UNIT (PHILIPPINE ARMY), AND GENERAL RICARDO R. VISAYA (IN HIS CAPACITY AS THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES), DEFENSE SECRETARY DELFIN LORENZANA, AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS, RESPONDENTS.
RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C. SAGUISAG III, INTERVENORS.
[G.R. No. 225984]
REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL CAPACITIES AND AS A MEMBER OF CONGRESS AND AS THE HONORARY CHAIRPERSON OF THE FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCE (FIND); FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCE (FIND), REPRESENTED BY ITS COCHAIRPERSON, NILDA L. SEVILLA; REP. TEDDY BRAWNER BAGUILAT, JR.; REP. TOMASITO S. VILLARIN; REP. EDGAR R. ERICE; AND REP. EMMANUEL A. BILLONES, PETITIONERS, VS. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA; DEFENSE SECRETARY DELFIN N. LORENZANA; AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA; AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ; AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS, RESPONDENTS.
[G.R. No. 226097]
LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F. SANTOSMARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR, MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUIE G. CRISMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE, AND ABDULMARI DE LEON IMAO, JR., PETITIONERS, VS. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR LT. GEN. ERNESTO G. CAROLINA (RET.), RESPONDENTS.
[G.R. No. 226116]
HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X. MANGLAPUS, EDILBERTO C. DE JESUS, BELINDA O. CUNANAN, CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P. OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M. QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA, AUGUSTO A. LEGASTO, JR., AND JULIA KRISTINA P. LEGASTO, PETITIONERS, VS. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) OF THE DND, RESPONDENTS.
[G.R. No. 226117]
ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, JUAN ANTONIO RAROGAL MAGALANG, PETITIONERS, VS. SECRETARY OF NATIONAL DEFENSE DELFIN N. LORENZANA, AFP CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF THE PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA, RESPONDENTS.
[G.R. No. 226120]
ALGAMAR A. LATIPH, PETITIONER, VS. SECRETARY DELFIN N. LORENZANA, SUED IN HIS CAPACITY AS SECRETARY OF NATIONAL DEFENSE, LT. GEN. RICARDO R. VISAYA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND LT. GEN. ERNESTO G. CAROLINA (RET.), IN HIS CAPACITY AS ADMINISTRATOR, PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO), RESPONDENTS.
[G.R. No. 226294]
LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE REPUBLIC AND AS TAXPAYER, PETITIONER, VS. HON. SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, UNDERSECRETARY ERNESTO G. CAROLINA, IN HIS CAPACITY AS PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR AND B/GEN. RESTITUTO L. AGUILAR, IN HIS CAPACITY AS SHRINE CURATOR AND CHIEF VETERANS MEMORIAL AND HISTORICAL DIVISION AND HEIRS OF FERDINAND EDRALIN MARCOS, RESPONDENTS.
D E C I S I O N
PERALTA, J.:
In law, as much as in life, there is need to find closure. Issues that have lingered and festered for so long and which unnecessarily divide the people and slow the path to the future have to be interred. To move on is not to forget the past. It is to focus on the present and the future, leaving behind what is better left for history to ultimately decide. The Court finds guidance from the Constitution and the applicable laws, and in the absence of clear prohibition against the exercise of discretion entrusted to the political branches of the Government, the Court must not overextend its readings of what may only be seen as providing tenuous connection to the issue before it.
Facts
During the campaign period for the 2016 Presidential Election, then candidate Rodrigo R. Duterte (Duterte) publicly announced that he would allow the burial of former President Ferdinand E. Marcos (Marcos) at the Libingan Ng Mga Bayani (LNMB). He won the May 9, 2016 election, garnering 16,601,997 votes. At noon of June 30, 2016, he formally assumed his office at the Rizal Hall in the Malacañan Palace.
On August 7, 2016, public respondent Secretary of National Defense Delfin N. Lorenzana issued a Memorandum to the public respondent Chief of Staff of the Armed Forces of the Philippines (AFP), General Ricardo R. Visaya, regarding the interment of Marcos at the LNMB, to wit:
1. Petition for Certiorari and Prohibition[3] filed by Saturnino Ocampo and several others,[4] in their capacities as human rights advocates or human rights violations victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013).
2. Petition for Certiorari-in-Intervention[5] filed by Rene A.V. Saguisag, Sr. and his son,[6] as members of the Bar and human rights lawyers, and his grandchild.[7]
3. Petition for Prohibition[8] filed by Representative Edcel C. Lagman, in his personal capacity, as member of the House of Representatives and as Honorary Chairperson of Families of Victims of Involuntary Disappearance (FIND), a duly-registered corporation and organization of victims and families of enforced disappearance, mostly during the martial law regime of the former President Marcos, and several others,[9] in their official capacities as duly-elected Congressmen of the House of Representatives of the Philippines.
4. Petition for Prohibition[10] filed by Loretta Ann Pargas-Rosales, former Chairperson of the Commission on Human Rights, and several others,[11] suing as victims of State-sanctioned human rights violations during the martial law regime of Marcos.
5. Petition for Mandamus and Prohibition[12] filed by Heherson T. Alvarez, former Senator of the Republic of the Philippines, who fought to oust the dictatorship of Marcos, and several others,[13] as concerned Filipino citizens and taxpayers.
6. Petition for Certiorari and Prohibition[14] filed by Zaira Patricia B. Baniaga and several others,[15] as concerned Filipino citizens and taxpayers.
7. Petition for Certiorari and Prohibition[16] filed by Algamar A. Latiph, former Chairperson of the Regional Human Rights Commission, Autonomous Region in Muslim Mindanao, by himself and on behalf of the Moro[17] who are victims of human rights during the martial law regime of Marcos.
8. Petition for Certiorari and Prohibition[18] filed by Leila M. De Lima as member of the Senate of the Republic of the Philippines, public official and concerned citizen.
Issues
Procedural
1. Whether President Duterte's determination to have the remains of Marcos interred at the LNMB poses a justiciable controversy.
2. Whether petitioners have locus standi to file the instant petitions.
3. Whether petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts.
Substantive
1. Whether the respondents Secretary of National Defense and AFP Rear Admiral committed grave abuse of discretion, amounting to lack or excess of jurisdiction, when they issued the assailed memorandum and directive in compliance with the verbal order of President Duterte to implement his election campaign promise to have the remains of Marcos interred at the LNMB.
2. Whether the Issuance and implementation of the assailed memorandum and directive violate the Constitution, domestic and international laws, particularly:
(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1 of Article III, Section 17 of Article VII, Section 1 of Article XI, Section 3(2) of Article XIV, and Section 26 of Article XVIII of the 1987 Constitution;
(b) R.A. No. 289;
(c) R.A. No. 10368;
(d) AFP Regulation G 161-375 dated September 11, 2000;
(e) The International Covenant on Civil and Political Rights;
(f) The "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law" of the United Nations (U.N.) General Assembly; and
(g) The "Updated Set of Principles for Protection and Promotion of Human Rights through Action to Combat Impunity" of the U.N. Economic and Social Council;
3. Whether historical facts, laws enacted to recover ill-gotten wealth from the Marcoses and their cronies, and the pronouncements of the Court on the Marcos regime have nullified his entitlement as a soldier and former President to interment at the LNMB.
4. Whether the Marcos family is deemed to have waived the burial of the remains of former President Marcos at the LNMB after they entered into an agreement with the Government of the Republic of the Philippines as to the conditions and procedures by which his remains shall be brought back to and interred in the Philippines.
Opinion
The petitions must be dismissed.
Procedural Grounds
Justiciable controversy
It is well settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless the following requisites for judicial inquiry are present: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.[19] In this case, the absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous.[20]
An "actual case or controversy" is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.[21] There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.[22] Related to the requisite of an actual case or controversy is the requisite of "ripeness," which means that something had then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action.[23] Moreover, the limitation on the power of judicial review to actual cases and controversies carries the assurance that the courts will not intrude into areas committed to the other branches of government.[24] Those areas pertain to questions which, under the Constitution, 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 of the government.[25] As they are concerned with questions of policy and issues dependent upon the wisdom, not legality of a particular measure,[26] political questions used to be beyond the ambit of judicial review. However, the scope of the political question doctrine has been limited by Section 1 of Article VIII of the 1987 Constitution when it vested in the judiciary the power to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The Court agrees with the OSG that President Duterte's decision to have the remains of Marcos interred at the LNMB involves a political question that is not a justiciable controversy. In the exercise of his powers under the Constitution and the Executive Order (E.O.) No. 292 (otherwise known as the Administrative Code of 1987) to allow the interment of Marcos at the LNMB, which is a land of the public domain devoted for national military cemetery and military shrine purposes, President Duterte decided a question of policy based on his wisdom that it shall promote national healing and forgiveness. There being no taint of grave abuse in the exercise of such discretion, as discussed below, President Duterte's decision on that political question is outside the ambit of judicial review.
Locus standi
Defined as a right of appearance in a court of justice on a given question,[27] locus standi requires that a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[28] Unless a person has sustained or is in imminent danger of sustaining an injury as a result of an act complained of, such proper party has no standing.[29] Petitioners, who filed their respective petitions for certiorari, prohibition and mandamus, in their capacities as citizens, human rights violations victims, legislators, members of the Bar and taxpayers, have no legal standing to file such petitions because they failed to show that they have suffered or will suffer direct and personal injury as a result of the interment of Marcos at the LNMB.
Taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law.[30] In this case, what is essentially being assailed is the wisdom behind the decision of the President to proceed with the interment of Marcos at the LNMB. As taxpayers, petitioners merely claim illegal disbursement of public funds, without showing that Marcos is disqualified to be interred at the LNMB by either express or implied provision of the Constitution, the laws or jurisprudence.
Petitioners Saguisag, et al.,[31] as members of the Bar, are required to allege any direct or potential injury which the Integrated Bar of the Philippines, as an institution, or its members may suffer as a consequence of the act complained of.[32] Suffice it to state that the averments in their petition-in-intervention failed to disclose such injury, and that their interest in this case is too general and shared by other groups, such that their duty to uphold the rule of law, without more, is inadequate to clothe them with requisite legal standing.[33]
As concerned citizens, petitioners are also required to substantiate that the issues raised are of transcendental importance, of overreaching significance to society, or of paramount public interest.[34] In cases involving such issues, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence.[35] In Marcos v. Manglapus,[36] the majority opinion observed that the subject controversy was of grave national importance, and that the Court's decision would have a profound effect on the political, economic, and other aspects of national life. The ponencia explained that the case was in a class by itself, unique and could not create precedent because it involved 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 (from 1986), sought to return to the Philippines to die.
At this point in time, the interment of Marcos at a cemetery originally established as a national military cemetery and declared a national shrine would have no profound effect on the political, economic, and other aspects of our national life considering that more than twenty-seven (27) years since his death and thirty (30) years after his ouster have already passed. Significantly, petitioners failed to demonstrate a clear and imminent threat to their fundamental constitutional rights.
As human rights violations victims during the Martial Law regime, some of petitioners decry re-traumatization, historical revisionism, and disregard of their state recognition as heroes. Petitioners' argument is founded on the wrong premise that the LNMB is the National Pantheon intended by law to perpetuate the memory of all Presidents, national heroes and patriots. The history of the LNMB, as will be discussed further, reveals its nature and purpose as a national military cemetery and national shrine, under the administration of the AFP.
Apart from being concerned citizens and taxpayers, petitioners Senator De Lima, and Congressman Lagman, et al.[37] come before the Court as legislators suing to defend the Constitution and to protect appropriated public funds from being used unlawfully. In the absence of a clear showing of any direct injury to their person or the institution to which they belong, their standing as members of the Congress cannot be upheld.[38] They do not specifically claim that the official actions complained of, i.e., the memorandum of the Secretary of National Defense and the directive of the AFP Chief of Staff regarding the interment of Marcos at the LNMB, encroach on their prerogatives as legislators.[39]
Exhaustion of Administrative Remedies
Petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts. Under the doctrine of exhaustion of administrative remedies, before a party is allowed to seek the intervention of the court, one should have availed first of all the means of administrative processes available.[40] If resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought.[41] For reasons of comity and convenience, courts of justice shy away from a dispute until the system of administrative redress has been completed and complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case.[42] While there are exceptions[43] to the doctrine of exhaustion of administrative remedies, petitioners failed to prove the presence of any of those exceptions.
Contrary to their claim of lack of plain, speedy, adequate remedy in the ordinary course of law, petitioners should be faulted for failing to seek reconsideration of the assailed memorandum and directive before the Secretary of National Defense. The Secretary of National Defense should be given opportunity to correct himself, if warranted, considering that AFP Regulations G 161-375 was issued upon his order. Questions on the implementation and interpretation thereof demand the exercise of sound administrative discretion, requiring the special knowledge, experience and services of his office to determine technical and intricate matters of fact. If petitioners would still be dissatisfied with the decision of the Secretary, they could elevate the matter before the Office of the President which has control and supervision over the Department of National Defense (DND).[44]
Hierarchy of Courts
In the same vein, while direct resort to the Court through petitions for the extraordinary writs of certiorari, prohibition and mandamus are allowed under exceptional cases,[45] which are lacking in this case, petitioners cannot simply brush aside the doctrine of hierarchy of courts that requires such petitions to be filed first with the proper Regional Trial Court (RTC). The RTC is not just a trier of facts, but can also resolve questions of law in the exercise of its original and concurrent jurisdiction over petitions for certiorari, prohibition and mandamus, and has the power to issue restraining order and injunction when proven necessary.
In fine, the petitions at bar should be dismissed on procedural grounds alone. Even if We decide the case based on the merits, the petitions should still be denied.
Substantive Grounds
There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias.[46] None is present in this case.
I
The President's decision to bury Marcos at the LNMB is in accordance with the Constitution, the law or jurisprudence
Petitioners argue that the burial of Marcos at the LNMB should not be allowed because it has the effect of not just rewriting history as to the Filipino people's act of revolting against an authoritarian ruler but also condoning the abuses committed during the Martial Law, thereby violating the letter and spirit of the 1987 Constitution, which is a "post-dictatorship charter" and a "human rights constitution." For them, the ratification of the Constitution serves as a clear condemnation of Marcos' alleged "heroism." To support their case, petitioners invoke Sections 2,[47] 11,[48] 13,[49] 23,[50] 26,[51] 27[52] and 28[53] of Article II, Sec. 17 of Art. VII,[54] Sec. 3(2) of Art. XIV,[55] Sec. 1 of Art. XI,[56] and Sec. 26 of Art. XVIII[57] of the Constitution.
There is no merit to the contention.
As the Office of the Solicitor General (OSG) logically reasoned out, while the Constitution is a product of our collective history as a people, its entirety should not be interpreted as providing guiding principles to just about anything remotely related to the Martial Law period such as the proposed Marcos burial at the LNMB.
Tañada v. Angara[58] already ruled that the provisions in Article II of the Constitution are not self-executing. Thus:
Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the Constitution is also misplaced. Sec. 3(2) of Art. XIV refers to the constitutional duty of educational institutions in teaching the values of patriotism and nationalism and respect for human rights, while Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze orders in relation to the recovery of Marcos' ill-gotten wealth. Clearly, with respect to these provisions, there is no direct or indirect prohibition to Marcos' interment at the LNMB.
The second sentence of Sec. 17 of Art. VII pertaining to the duty of the President to "ensure that the laws be faithfully executed," which is identical to Sec. 1, Title I, Book III of the Administrative Code of 1987,[60] is likewise not violated by public respondents. Being the Chief Executive, the President represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his or her department.[61] Under the Faithful Execution Clause, the President has the power to take "necessary and proper steps" to carry into execution the law.[62] The mandate is self-executory by virtue of its being inherently executive in nature and is intimately related to the other executive functions.[63] It is best construed as an imposed obligation, not a separate grant of power.[64] The provision simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws but is obliged to obey and execute them.[65]
Consistent with President Duterte's mandate under Sec. 17, Art. VII of the Constitution, the burial of Marcos at the LNMB does not contravene R.A. No. 289, R.A. No. 10368, and the international human rights laws cited by petitioners.
A. On R.A. No. 289[66]
For the perpetuation of their memory and for the inspiration and emulation of this generation and of generations still unborn, R.A. No. 289 authorized the construction of a National Pantheon as the burial place of the mortal remains of all the Presidents of the Philippines, national heroes and patriots.[67] It also provided for the creation of a Board on National Pantheon to implement the law.[68]
On May 12, 1953, President Elpidio R. Quirino approved the site of the National Pantheon at East Avenue, Quezon City.[69] On December 23, 1953, he issued Proclamation No. 431 to formally "withdraw from sale or settlement and reserve as a site for the construction of the National Pantheon a certain parcel of land located in Quezon City." However, on July 5, 1954, President Magsaysay issued Proclamation No. 42 revoking Proclamation Nos. 422 and 431, both series of 1953, and reserving the parcels of land embraced therein for national park purposes to be known as Quezon Memorial Park.
It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard by which a person's mortal remains may be interred at the LNMB, and that AFP Regulations G 161-375 merely implements the law and should not violate its spirit and intent. Petitioners claim that it is known, both here and abroad, that Marcos' acts and deed - the gross human rights violations, the massive corruption and plunder of government coffers, and his military record that is fraught with myths, factual inconsistencies, and lies - are neither worthy of perpetuation in our memory nor serve as a source of inspiration and emulation of the present and future generations. They maintain that public respondents are not members of the Board on National Pantheon, which is authorized by the law to cause the burial at the LNMB of the deceased Presidents of the Philippines, national heroes, and patriots.
Petitioners are mistaken. Both in their pleadings and during the oral arguments, they miserably failed to provide legal and historical bases as to their supposition that the LNMB and the National Pantheon are one and the same. This is not at all unexpected because the LNMB is distinct and separate from the burial place envisioned in R.A. No 289. The parcel of land subject matter of President Quirino's Proclamation No. 431, which was later on revoked by President Magsaysay's Proclamation No. 42, is different from that covered by Marcos' Proclamation No. 208. The National Pantheon does not exist at present. To date, the Congress has deemed it wise not to appropriate any funds for its construction or the creation of the Board on National Pantheon. This is indicative of the legislative will not to pursue, at the moment, the establishment of a singular interment place for the mortal remains of all Presidents of the Philippines, national heroes, and patriots. Perhaps, the Manila North Cemetery, the Manila South Cemetery, and other equally distinguished private cemeteries already serve the noble purpose but without cost to the limited funds of the government.
Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners' allegations must fail. To apply the standard that the LNMB is reserved only for the "decent and the brave" or "hero" would be violative of public policy as it will put into question the validity of the burial of each and every mortal remains resting therein, and infringe upon the principle of separation of powers since the allocation of plots at the LNMB is based on the grant of authority to the President under existing laws and regulations. Also, the Court shares the view of the OSG that the proposed interment is not equivalent to the consecration of Marcos' mortal remains. The act in itself does not confer upon him the status of a "hero." Despite its name, which is actually a misnomer, the purpose of the LNMB, both from legal and historical perspectives, has neither been to confer to the people buried there the title of "hero" nor to require that only those interred therein should be treated as a "hero." Lastly, petitioners' repeated reference to a "hero's burial" and "state honors," without showing proof as to what kind of burial or honors that will be accorded to the remains of Marcos, is speculative until the specifics of the interment have been finalized by public respondents.
B. On R.A. No. 10368[70]
For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by implicitly disqualifying Marcos' burial at the LNMB because the legislature, which is a co-equal branch of the government, has statutorily declared his tyranny as a deposed dictator and has recognized the heroism and sacrifices of the Human Rights Violations Victims (HRVVs)[71] under his regime. They insist that the intended act of public respondents damages and makes mockery of the mandatory teaching of Martial Law atrocities and of the lives and sacrifices of its victims. They contend that "reparation" under R.A. No. 10368 is non-judicial in nature but a political action of the State through the Legislative and Executive branches by providing administrative relief for the compensation, recognition, and memorialization of human rights victims.
We beg to disagree.
Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance, and other gross human rights violations committed from September 21, 1972 to February 25, 1986. To restore their honor and dignity, the State acknowledges its moral and legal obligation[72] to provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they experienced.
In restoring the rights and upholding the dignity of HRVVs, which is part of the right to an effective remedy, R.A. No. 10368 entitles them to monetary and non-monetary reparation. Any HRVV qualified under the law[73] shall receive a monetary reparation, which is tax-free and without prejudice to the receipt of any other sum from any other person or entity in any case involving human rights violations.[74] Anent the non-monetary reparation, the Department of Health (DOH), the Department of Social Welfare and Development (DSWD), the Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), and such other government agencies are required to render the necessary services for the HRVVs and/or their families, as may be determined by the Human Rights Victims' Claims Board (Board) pursuant to the provisions of the law.[75]
Additionally, R.A. No. 10368 requires the recognition of the violations committed against the HRVVs, regardless of whether they opt to seek reparation or not. This is manifested by enshrining their names in the Roll of Human Rights Violations Victims (Roll) prepared by the Board.[76] The Roll may be displayed in government agencies designated by the HRVV Memorial Commission (Commission).[77] Also, a Memorial/Museum/Library shall be established and a compendium of their sacrifices shall be prepared and may be readily viewed and accessed in the internet.[78] The Commission is created primarily for the establishment, restoration, preservation and conservation of the Memorial/Museum/ Library/Compendium.[79]
To memorialize[80] the HRVVs, the Implementing Rules and Regulations of R.A. No. 10368 further mandates that: (1) the database prepared by the Board derived from the processing of claims shall be turned over to the Commission for archival purposes, and made accessible for the promotion of human rights to all government agencies and instrumentalities in order to prevent recurrence of similar abuses, encourage continuing reforms and contribute to ending impunity;[81] (2) the lessons learned from Martial Law atrocities and the lives and sacrifices of HRVVs shall be included in the basic and higher education curricula, as well as in continuing adult learning, prioritizing those most prone to commit human rights violations;[82] and (3) the Commission shall publish only those stories of HRVVs who have given prior informed consent.[83]
This Court cannot subscribe to petitioners' logic that the beneficial provisions of R.A. No. 10368 are not exclusive as it includes the prohibition on Marcos' burial at the LNMB. It would be undue to extend the law beyond what it actually contemplates. With its victim-oriented perspective, our legislators could have easily inserted a provision specifically proscribing Marcos' interment at the LNMB as a "reparation" for the HRVVs, but they did not. As it is, the law is silent and should remain to be so. This Court cannot read into the law what is simply not there. It is irregular, if not unconstitutional, for Us to presume the legislative will by supplying material details into the law. That would be tantamount to judicial legislation.
Considering the foregoing, the enforcement of the HRVVs' rights under R.A. No 10368 will surely not be impaired by the interment of Marcos at the LNMB. As opined by the OSG, the assailed act has no causal connection and legal relation to the law. The subject memorandum and directive of public respondents do not and cannot interfere with the statutory powers and functions of the Board and the Commission. More importantly, the HRVVs' entitlements to the benefits provided for by R.A. No 10368 and other domestic laws are not curtailed. It must be emphasized that R.A. No. 10368 does not amend or repeal, whether express or implied, the provisions of the Administrative Code or AFP Regulations G 161-375:
Petitioners argue that the burial of Marcos at the LNMB will violate the rights of the HRVVs to "full" and "effective" reparation, which is provided under the International Covenant on Civil and Political Rights (ICCPR),[85] the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law[86] adopted by the U.N. General Assembly on December 16, 2005, and the Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity[87] dated February 8, 2005 by the U.N. Economic and Social Council.
We do not think so. The ICCPR,[88] as well as the U.N. principles on reparation and to combat impunity, call for the enactment of legislative measures, establishment of national programmes, and provision for administrative and judicial recourse, in accordance with the country's constitutional processes, that are necessary to give effect to human rights embodied in treaties, covenants and other international laws. The U.N. principles on reparation expressly states:
The 1987 Constitution contains provisions that promote and protect human rights and social justice.
As to judicial remedies, aside from the writs of habeas corpus, amparo,[89] and habeas data,[90] the Supreme Court promulgated on March 1, 2007 Administrative Order No. 25-2007,[91] which provides rules on cases involving extra-judicial killings of political ideologists and members of the media. The provision of the Basic Principles and Guidelines on the prevention of the victim's re-traumatization applies in the course of legal and administrative procedures designed to provide justice and reparation.[92]
On the part of the Executive Branch, it issued a number of administrative and executive orders. Notable of which are the following:
Notably, complementing the statutory powers and functions of the Human Rights Victims' Claims Board and the HRVV Memorial Commission in the memorialization of HRVVs, the National Historical Commission of the Philippines (NHCP), formerly known as the National Historical Institute (NHI),[94] is mandated to act as the primary government agency responsible for history and is authorized to determine all factual matters relating to official Philippine history.[95] Among others, it is tasked to: (a) conduct and support all kinds of research relating to Philippine national and local history; (b) develop educational materials in various media, implement historical educational activities for the popularization of Philippine history, and disseminate, information regarding Philippine historical events, dates, places and personages; and (c) actively engage in the settlement or resolution of controversies or issues relative to historical personages, places, dates and events.[96] Under R.A. Nos. 10066 (National Cultural Heritage Act of 2009)[97] and 10086 (Strengthening Peoples' Nationalism Through Philippine History Act),[98] the declared State policy is to conserve, develop, promote, and popularize the nation's historical and cultural heritage and resources.[99] Towards this end, means shall be provided to strengthen people's nationalism, love of country, respect for its heroes and pride for the people's accomplishments by reinforcing the importance of Philippine national and local history in daily life with the end in view of raising social consciousness.[100] Utmost priority shall be given not only with the research on history but also its popularization.[101]
II.
The President's decision to bury Marcos at the LNMB is not done whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias
Petitioners contend that the interment of Marcos at the LNMB will desecrate it as a sacred and hallowed place and a revered national shrine where the mortal remains of our country's great men and women are interred for the inspiration and emulation of the present generation and generations to come. They erred.
A. National Shrines
As one of the cultural properties of the Philippines, national historical shrines (or historical shrines) refer to sites or structures hallowed and revered for their history or association as declared by the NHCP.[102] The national shrines created by law and presidential issuance include, among others: Fort Santiago (Dambana ng Kalayaan) in Manila;[103] all battlefield areas in Corregidor and Bataan;[104] the site of First Mass in the Philippines in Magallanes, Limasawa, Leyte;[105] Aguinaldo Shrine or Freedom Shrine in Kawit, Cavite;[106] Fort San Antonio Abad National Shrine in Malate, Manila;[107] Tirad Pass National Shrine in Ilocos Sur;[108] Ricarte Shrine[109] and Aglipay Shrine[110] in Batac, Ilocos Norte; Liberty Shrine in Lapu-Lapu, Cebu;[111] "Red Beach" or the landing point of General Douglas MacArthur and the liberating forces in Baras, Palo, Leyte;[112] Dapitan City as a National Shrine City in Zamboanga Del Norte;[113] General Leandro Locsin Fullon National Shrine in Hamtic, Antique;[114] and Mabini Shrine in Polytechnic University of the Philippines - Mabini Campus, Sta. Mesa, Manila.[115] As sites of the birth, exile, imprisonment, detention or death of great and eminent leaders of the nation, it is the policy of the Government to hold and keep the national shrines as sacred and hallowed place.[116] P.O. No. 105[117] strictly prohibits and punishes by imprisonment and/or fine the desecration of national shrines by disturbing their peace and serenity through digging, excavating, defacing, causing unnecessary noise, and committing unbecoming acts within their premises. R.A. No. 10066 also makes it punishable to intentionally modify, alter, or destroy the original features of, or undertake construction or real estate development in any national shrine, monument, landmark and other historic edifices and structures, declared, classified, and marked by the NHCP as such, without the prior written permission from the National Commission for Culture and the Arts (NCAA).[118]
As one of the cultural agencies attached to the NCAA,[119] the NHCP manages, maintains and administers national shrines, monuments, historical sites, edifices and landmarks of significant historico-cultural value.[120] In particular, the NHCP Board has the power to approve the declaration of historic structures and sites, such as national shrines, monuments, landmarks and heritage houses and to determine the manner of their identification, maintenance, restoration, conservation, preservation and protection.[121]
Excluded, however, from the jurisdiction of the NHCP are the military memorials and battle monuments declared as national shrines, which have been under the administration, maintenance and development of the Philippine Veterans Affairs Office (PVAO) of the DND. Among the military shrines are: Mt. Samat National Shrine in Pilar, Bataan;[122] Kiangan War Memorial Shrine in Linda, Kiangan, Ifugao;[123] Capas National Shrine in Capas, Tarlac;[124] Ricarte National Shrine in Malasin, Batac, Ilocos Norte;[125] Balantang Memorial Cemetery National Shrine in Jaro, Iloilo;[126] Balete Pass National Shrine in Sta. Fe, Nueva Vizcaya;[127] USAFIP, NL Military Shrine and Park in Bessang Pass, Cervantes, Ilocos Sur;[128] and the LNMB in Taguig City, Metro Manila.[129]
B. The Libingan Ng Mga Bayani
At the end of World War II, the entire nation was left mourning for the death of thousands of Filipinos. Several places served as grounds for the war dead, such as the Republic Memorial Cemetery, the Bataan Memorial Cemetery, and other places throughout the country. The Republic Memorial Cemetery, in particular, was established in May 1947 as a fitting tribute and final resting place of Filipino military personnel who died in World War II.
On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O. No. 77, which ordered "the remains of the war dead interred at the Bataan Memorial Cemetery, Bataan Province, and at other places in the Philippines, be transferred to, and reinterred at, the Republic Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to minimize the expenses for the maintenance and upkeep, and to make the remains accessible to the widows, parents, children, relatives, and friends.
On October 27, 1954, President Magsaysay issued Proclamation No. 86, which changed the name of Republic Memorial Cemetery to Libingan Ng Mga Bayani to symbolize "the cause for which our soldiers have died" and to "truly express the nations esteem and reverence for her war dead."[130]
On July 12, 1957, President Carlos P. Garcia issued Proclamation No. 423, which reserved for military purposes, under the administration of the AFP Chief of Staff, the land where LNMB is located. The LNMB was part of a military reservation site then known as Fort Wm McKinley (now known as Fort Andres Bonifacio).
On May 28, 1967, Marcos issued Proclamation No. 208, which excluded the LNMB from the Fort Bonifacio military reservation and reserved the LNMB for national shrine purposes under the administration of the National Shrines Commission (NSC) under the DND.
On September 24, 1972, Marcos, in the exercise of his powers as the AFP Commander-in-Chief, and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, as amended, issued Presidential Decree (P.D.) No. 1 which reorganized the Executive Branch of the National Government through the adoption of the Integrated Reorganization Plan (IRP). Section 7, Article XV, Chapter I, Part XII thereof abolished the NSC and its functions together with applicable appropriations, records, equipment, property and such personnel as may be necessary were transferred to the NHI under the Department of Education (DEC). The NHI was responsible for promoting and preserving the Philippine cultural heritage by undertaking, inter alia, studies on Philippine history and national heroes and maintaining national shrines and monuments.[131]
Pending the organization of the DEC, the functions relative to the administration, maintenance and development of national shrines tentatively integrated into the PVAO in July 1973.
On January 26, 1977, President Marcos issued P.D. No. 1076. Section 7, Article XV, Chapter I, Part XII of the IRP was repealed on the grounds that "the administration, maintenance and development of national shrines consisting of military memorials or battle monuments can be more effectively accomplished if they are removed from the [DEC] and transferred to the [DND] by reason of the latter s greater capabilities and resources" and that "the functions of the [DND] are more closely related and relevant to the charter or significance of said national shrines." Henceforth, the PVAO through the Military Shrines Service (MSS), which was created to perform the functions of the abolished NSC - would administer, maintain and develop military memorials and battle monuments proclaimed as national shrines.
On July 25, 1987, President Corazon C. Aquino issued the Administrative Code. The Code retains PVAO under the supervision and control of the Secretary of National Defense.[132] Among others, PVAO shall administer, develop and maintain military shrines.[133] With the approval of PVAO Rationalization Plan on June 29, 2010, pursuant to E.O. No. 366 dated October 4, 2004, MSS was renamed to Veterans Memorial and Historical Division, under the supervision and control of PVAO, which is presently tasked with the management and development of military shrines and the perpetuation of the heroic deeds of our nation's veterans.
As a national military shrine, the main features, structures, and facilities of the LNMB are as follows:
(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.
(2) Following the canon of statutory construction known as ejusdem generis,[138] the LNMB is not a site "of the birth, exile, imprisonment, detention or death of great and eminent leaders of the nation." What P.D. No. 105 contemplates are the following national shrines: Fort Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor and Bataan, the site of First Mass in the Philippines, Aguinaldo Shrine or Freedom Shrine, Fort San Antonio Abad National Shrine, Tirad Pass National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty Shrine, "Red Beach" or the landing point of General Douglas MacArthur and the liberating forces, Dapitan City, General Leandro Locsin Fullon National Shrine, and Mabini Shrine. Excluded are the military memorials and battle monuments declared as national shrines under the PVAO, such as: Mt. Samat National Shrine, Kiangan War Memorial Shrine, Capas National Shrine, Ricarte National Shrine, Balantang Memorial Cemetery National Shrine, Balete Pass National Shrine; USAFIP, NL Military Shrine and Park, and the LNMB.
(3) Since its establishment, the LNMB has been a military shrine under the jurisdiction of the PVAO. While P.D. No. 1 dated September 24, 1972 transferred the administration, maintenance and development of national shrines to the NHI under the DEC, it never actually materialized. Pending the organization of the DEC, its functions relative to national shrines were tentatively integrated into the PVAO in July 1973. Eventually, on January 26, 1977, Marcos issued P.D. No. 1076. The PVAO, through the MSS, was tasked to administer, maintain, and develop military memorials and battle monuments proclaimed as national shrines. The reasons being that "the administration, maintenance and development of national shrines consisting of military memorials or battle monuments can be more effectively accomplished if they are removed from the [DEC] and transferred to the [DND] by reason of the latter's greater capabilities and resources" and that "the functions of the [DND] are more closely related and relevant to the charter or significance of said national shrines."
The foregoing interpretation is neither narrow and myopic nor downright error. Instead, it is consistent with the letter and intent of P.D. No. 105.
Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and hallowed" refer to the LNMB as a place and not to each and every mortal remains interred therein. Hence, the burial of Marcos at the LNMB does not diminish said cemetery as a revered and respected ground. Neither does it negate the presumed individual or collective "heroism" of the men and women buried or will be buried therein. The "nations esteem and reverence for her war dead," as originally contemplated by President Magsaysay in issuing Proclamation No. 86, still stands unaffected. That being said, the interment of Marcos, therefore, does not constitute a violation of the physical, historical, and cultural integrity of the LNMB as a national military shrine.
At this juncture, reference should be made to Arlington National Cemetery (Arlington), which is identical to the LNMB in terms of its prominence in the U.S. It is not amiss to point that our armed forces have been patterned after the U.S. and that its military code produced a salutary effect in the Philippines' military justice system.[139] Hence, relevant military rules, regulations, and practices of the U.S. have persuasive, if not the same, effect in this jurisdiction.
As one of the U.S. Army national military cemeteries,[140] the Arlington is under the jurisdiction of the Department of the Army.[141] The Secretary of the U.S. Army has the responsibility to develop, operate, manage, administer, oversee, and fund the Army national military cemeteries in a manner and to standards that fully honor the service and sacrifices of the deceased members of the armed forces buried or inurned therein, and shall prescribe such regulations and policies as may be necessary to administer the cemeteries.[142] In addition, the Secretary of the U.S. Army is empowered to appoint an advisory committee, which shall make periodic reports and recommendations as well as advise the Secretary with respect to the administration of the cemetery, the erection of memorials at the cemetery, and master planning for the cemetery.[143]
Similar to the Philippines, the U.S. national cemeteries are established as national shrines in tribute to the gallant dead who have served in the U.S. Armed Forces.[144] The areas are protected, managed and administered as suitable and dignified burial grounds and as significant cultural resources.[145] As such, the authorization of activities that take place therein is limited to those that are consistent with applicable legislation and that are compatible with maintaining their solemn commemorative and historic character.[146]
The LNMB is considered as a national shrine for military memorials. The PVAO, which is empowered to administer, develop, and maintain military shrines, is under the supervision and control of the DND. The DND, in turn, is under the Office of the President.
The presidential power of control over the Executive Branch of Government is a self-executing provision of the Constitution and does not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the legislature.[147] This is why President Duterte is not bound by the alleged 1992 Agreement[148] between former President Ramos and the Marcos family to have the remains of Marcos interred in Batac, Ilocos Norte. As the incumbent President, he is free to amend, revoke or rescind political agreements entered into by his predecessors, and to determine policies which he considers, based on informed judgment and presumed wisdom, will be most effective in carrying out his mandate.
Moreover, under the Administrative Code, the President has the power to reserve for public use and for specific public purposes any of the lands of the public domain and that the reserved land shall remain subject to the specific public purpose indicated until otherwise provided by law or proclamation.[149] At present, there is no law or executive issuance specifically excluding the land in which the LNMB is located from the use it was originally intended by the past Presidents. The allotment of a cemetery plot at the LNMB for Marcos as a former President and Commander-in-Chief,[150] a legislator,[151] a Secretary of National Defense,[152] a military personnel,[153] a veteran,[154] and a Medal of Valor awardee,[155] whether recognizing his contributions or simply his status as such, satisfies the public use requirement. The disbursement of public funds to cover the expenses incidental to the burial is granted to compensate him for valuable public services rendered.[156] Likewise, President Duterte's determination to have Marcos' remains interred at the LNMB was inspired by his desire for national healing and reconciliation. Presumption of regularity in the performance of official duty prevails over petitioners' highly disputed factual allegation that, in the guise of exercising a presidential prerogative, the Chief Executive is actually motivated by utang na loob (debt of gratitude) and bayad utang (payback) to the Marcoses. As the purpose is not self-evident, petitioners have the burden of proof to establish the factual basis of their claim. They failed. Even so, this Court cannot take cognizance of factual issues since We are not a trier of facts.
C. AFP Regulations on the LNMB
A review of the regulations issued by the AFP Chief of Staff as to who may and may not be interred at the LNMB underscores the nature and purpose of the LNMB as an active military cemetery/grave site.
On May 13, 1947, the Chief of Staff of the Philippine Army, by the direction of the President and by order of the Secretary of National Defense, issued General Orders No. 111, which constituted and activated, as of said date, the Graves Registration Platoon as a unit of the Philippine Army.
On February 2, 1960, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-371 (Administrative and Special Staff Services, Grave Registration Service), which provided that the following may be interred in the LNMB: (a) World War II dead of the AFP and recognized guerillas; (b) Current dead of the AFP; (c) Retired military personnel of the AFP; (d) Remains of former members of the AFP who died while in the active service and in the Retired List of the AFP now interred at different cemeteries and other places throughout the Philippines or the Secretary of National Defense; and (e) Others upon approval of the Congress of the Philippines, the President of the Philippines or the Secretary of National Defense. The regulation also stated that the AFP Quartermaster General will be responsible for, among other matters, the efficient operation of the Graves Registration Service; the interment, disinterment and reinterment of the dead mentioned above; and preservation of military cemeteries, national cemeteries, and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-372 (Administration and Operation of AFP Graves Registration Installations), which superseded AFP Regulations G 161-371. It provided that the following may be interred in the LNMB: (a) Deceased Veterans of the Philippine Revolution of 1896/World War I; (b) Deceased World War II members of the AFP and recognized guerillas; (c) Deceased military personnel of the AFP who died while in the active duty; (d) Deceased retired military personnel of the AFP; (e) Deceased military personnel of the AFP interred at different cemeteries and other places outside the LNMB; and (f) Such remains of persons as the Commander-in-Chief of the AFP may direct. The remains of the following were not allowed to be interred in the LNMB: (a) The spouse of an active, or retired, deceased military personnel, recognized guerillas who himself/herself is not a military personnel; and (b) AFP personnel who were retireable but separated/reverted/discharged for cause, or joined and aided the enemy of the Republic of the Philippines, or were convicted of capital or other criminal offenses, involving moral turpitude. The regulation also stated that the Quartermaster General shall be responsible for, among other matters, the efficient operation of the AFP graves registration installations; the interment, disinterment and reinterment of deceased military personnel mentioned above; and the preservation of military cemeteries, proper marking and official recording of graves therein.
On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of National Defense Minister, issued AFP Regulations G 161-373 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-372. It enumerated a list of deceased person who may be interred at the LNMB, namely: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c) Ministers of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of Philippine Revolution of 1896, WWI, WWII and recognized guerillas; and (h) Government Dignitaries, Statesmen, National Artist and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Batasang Pambansa or the Minister of National Defense. The regulation also stated that the Quartermaster General shall be responsible for the allocation of specific section/areas for the said deceased persons, while the Commanding Officer of the Quartermaster Graves Registration Company shall be charged with the preparation of grave sites, supervision of burials at LNMB and the registration of graves.
On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-374 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-373. It provided that the following may be interred in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-inChief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (h) Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of National Defense; and (i) Former Presidents, Secretaries of Defense, CSAFP, Generals/Flag Officers, Dignitaries, Statesmen, National Artists, widows of former Presidents, Secretaries of National Defense and Chief of Staff. The remains of the following were not allowed to be interred in the LNMB: (a) Personnel who were dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by final judgment of an offense involving moral turpitude. Like AFP Regulations G 161-373, it stated that the Quartermaster General shall be responsible for the allocation of specific section/areas for the deceased persons, whereas the Commanding Officer of the Quartermaster Graves Registration Unit shall be charged with the preparation of grave sites, supervision of burials, and the registration of graves.
Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the Secretary of National Defense, issued AFP Regulations G 161-375 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-374. The regulation stated that the Chief of Staff shall be responsible for the issuance of interment directive for all active military personnel for interment, authorized personnel (such as those former members of the AFP who laterally entered or joined the Philippine Coast Guard [PCG] and the Philippine National Police [PNP]), and retirees, veterans and reservists enumerated therein. The Quartermaster General is tasked to exercise over-all supervision in the implementation of the regulation and the Commander ASCOM, PA through the Commanding Officer of Grave Services Unit is charged with the registration of the deceased/graves, the allocation of specific section/area at the LNMB for interment of deceased, the preparation of grave sites, and the supervision of burials.
Under AFP Regulations G 161-375, the following are eligible for interment at the LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP to include active draftees and trainees who died in line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities; (g) Former members of the AFP who laterally entered or joined the PCG and the PNP; (h) Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (i) Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or the Secretary of National Defense; and G) Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff. Similar to AFP Regulations G 161-374, the following are not qualified to be interred in the LNMB: (a) Personnel who were dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by final judgment of an offense involving moral turpitude.
In the absence of any executive issuance or law to the contrary, the AFP Regulations G 161-375 remains to be the sole authority in determining who are entitled and disqualified to be interred at the LNMB. Interestingly, even if they were empowered to do so, former Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who were themselves aggrieved at the Martial Law, did not revise the rules by expressly prohibiting the burial of Marcos at the LNMB. The validity of AFP Regulations G 161-375 must, therefor, be sustained for having been issued by the AFP Chief of Staff acting under the direction of the Secretary of National Defense, who is the alter ego of the President.
1. Qualification under the AFP Regulations
AFP Regulations G 161-375 should not be stricken down in the absence of clear and unmistakable showing that it has been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Neither could it be considered ultra vires for purportedly providing incomplete, whimsical, and capricious standards for qualification for burial at the LNMB.
To compare, We again refer to the U.S. Army regulations on Arlington. In the U.S., the Secretary of the Army, with the approval of the Secretary of Defense, determines eligibility for interment or inurnment in the Army national military cemeteries.[159] Effective October 26, 2016, the rule[160] is as follows:
Judging from the foregoing, it is glaring that the U.S. Army regulations on Arlington and the AFP Regulations G 161-375 on the LNMB, as a general rule, recognize and reward the military services or military related activities of the deceased. Compared with the latter, however, the former is actually less generous in granting the privilege of interment since only the spouse or parent, under certain conditions, may be allowed "if space is available in the gravesite of the primarily eligible person."
It is not contrary to the "well-established custom," as the dissent described it, to argue that the word "bayani" in the LNMB has become a misnomer since while a symbolism of heroism may attach to the LNMB as a national shrine for military memorial, the same does not automatically attach to its feature as a military cemetery and to those who were already laid or will be laid therein. As stated, the purpose of the LNMB, both from the legal and historical perspectives, has neither been to confer to the people buried there the title of "hero" nor to require that only those interred therein should be treated as a "hero." In fact, the privilege of internment at the LNMB has been loosen up through the years. Since 1986, the list of eligible includes not only those who rendered active military service or military-related activities but also non-military personnel who were recognized for their significant contributions to the Philippine society (such as government dignitaries, statesmen, national artists, and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of National Defense). In 1998, the widows of former Presidents, Secretaries of National Defense and Chief of Staff were added to the list. Whether or not the extension of burial privilege to civilians is unwarranted and should be restricted in order to be consistent with the original purpose of the LNMB is immaterial and irrelevant to the issue at bar since it is indubitable that Marcos had rendered significant active military service and military-related activities.
Petitioners did not dispute that Marcos was a former President and Commander-in-Chief, a legislator, a Secretary of National Defense, a military personnel, a veteran, and a Medal of Valor awardee. For his alleged human rights abuses and corrupt practices, we may disregard Marcos as a President and Commander-in-Chief, but we cannot deny him the right to be acknowledged based on the other positions he held or the awards he received. In this sense, We agree with the proposition that Marcos should be viewed and judged in his totality as a person. While he was not all good, he was not pure evil either. Certainly, just a human who erred like us.
Our laws give high regard to Marcos as a Medal of Valor awardee and a veteran. R.A. No. 9049[171] declares the policy of the State "to consistently honor its military heroes in order to strengthen the patriotic spirit and nationalist consciousness of the military."[172] For the "supreme self-sacrifice and distinctive acts of heroism and gallantry,"[173] a Medal of Valor awardee or his/her dependents/heirs/beneficiaries are entitled to the following social services and financial rewards:
2. Disqualification under the AFP Regulations
Aside from being eligible for burial at the LNMB, Marcos possessed none of the disqualifications stated in AFP Regulations G 161-375. He was neither convicted by final judgment of the offense involving moral turpitude nor dishonorably separated/reverted/discharged from active military service.
Petitioners, however, protest that a narrow interpretation of the AFP regulations disregards historical context and the rule on statutory construction. They urge the Court to construe statutes not literally but according to their spirit and reason.
It is argued that Marcos committed offenses involving moral turpitude for his gross human rights violations, massive graft and corruption, and dubious military records, as found by foreign and local courts as well as administrative agencies. By going into exile, he deliberately evaded liability for his actions. And by allowing death to overtake him, he inevitably escaped the prospect of facing accountability for his crimes. They also contend that his removal in the 1986 popular uprising is a clear sign of his discharge from the AFP. The People Power Revolution was the direct exercise of the Filipinos' power to overthrow an illegitimate and oppressive regime. As a sovereign act, it necessarily includes the power to adjudge him as dishonorably discharged from the AFP.
Furthermore, according to petitioners, to limit the application of the disqualifying provisions of AFP Regulations G 161-375 only to soldiers would be unfair (since, unlike Presidents, soldiers have an additional cause for disqualification) and lead to absurd results (because soldiers who were dishonorably discharged would be disqualified for acts that are less atrocious than that committed by Marcos). Also, the AFP regulations would place Marcos in the same class as the other Philippine Presidents when in fact he is a class of his own, sui generis. The other Presidents were never removed by People Power Revolution and were never subject of laws declaring them to have committed human rights violations. Thus, the intended burial would be an act of similarly treating persons who are differently situated.
Despite all these ostensibly persuasive arguments, the fact remains that Marcos was not convicted by final judgment of any offense involving moral turpitude. No less than the 1987 Constitution mandates that a person shall not be held to answer for a criminal offense without due process of law and that, "[i]n all criminal prosecutions, the accused shall be presum innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf."[179] Even the U.N. principles on reparation and to combat impunity cited by petitioners unequivocally guarantee the rights of the accused, providing that:
The various cases cited by petitiOners, which were decided with finality by courts here and abroad, have no bearing in this case since they are merely civil in nature; hence, cannot and do not establish moral turpitude.
Also, the equal protection clause is not violated. Generally, there is no property right to safeguard because even if one is eligible to be buried at the LNMB, such fact would only give him or her the privilege to be interred therein. Unless there is a favorable recommendation from the Commander-in-Chief, the Congress or the Secretary of National Defense, no right can be said to have ripen. Until then, such inchoate right is not legally demandable and enforceable.
Assuming that there is a property right to protect, the requisites of equal protection clause are not met.[181] In this case, there is a real and substantial distinction between a military personnel and a former President. The conditions of dishonorable discharge under the Articles of War[182] attach only to the members of the military. There is also no substantial distinction between Marcos and the three Philippine Presidents buried at the LNMB (Presidents Quirino, Garcia, and Macapagal). All of them were not convicted of a crime involving moral turpitude. In addition, the classification between a military personnel and a former President is germane to the purposes of Proclamation No. 208 and P.D. No. 1076. While the LNMB is a national shrine for military memorials, it is also an active military cemetery that recognizes the status or position held by the persons interred therein.
Likewise, Marcos was honorably discharged from military service. PVAO expressly recognized him as a retired veteran pursuant to R.A. No. 6948, as amended. Petitioners have not shown that he was dishonorably discharged from military service under AFP Circular 17, Series of 1987 (Administrative Discharge Prior to Expiration of Term of Enlistment) for violating Articles 94, 95 and 97 of the Articles of War.[183] The NHCP study[184] is incomplete with respect to his entire military career as it failed to cite and include the official records of the AFP.
With respect to the phrase "[p]ersonnel who were dishonorably separated/reverted/discharged from the service," the same should be viewed in light of the definition provided by AFP Regulations G 161-375 to the term "active service" which is "[s]ervice rendered by a military person as a Commissioned Officer, enlisted man/woman, probationary officer, trainee or draftee in the Armed Forces of the Philippines and service rendered by him/her as a civilian official or employee in the Philippine Government prior to the date of his/her separation or retirement from the Armed Forces of the Philippines, for which military and/or civilian service he/she shall have received pay from the Philippine Government, and/or such others as may be hereafter be prescribed by law as active service (PD 1638, as amended)."[185] To my mind, the word "service" should be construed as that rendered by a military person in the AFP, including civil service, from the time of his/her commission, enlistment, probation, training or drafting, up to the date of his/her separation or retirement from the AFP. Civil service after honorable separation and retirement from the AFP is outside the context of "service" under AFP Regulations G 161-375.
Hence, it cannot be conveniently claimed that Marcos' ouster from the presidency during the EDSA Revolution is tantamount to his dishonorable separation, reversion or discharge from the military service. The fact that the President is the Commander-in-Chief of the AFP under the 1987 Constitution only enshrines the principle of supremacy of civilian authority over the military. Not being a military person who may be prosecuted before the court martial, the President can hardly be deemed "dishonorably separated/reverted/discharged from the service" as contemplated by AFP Regulations G 161-375. Dishonorable discharge through a successful revolution is an extra-constitutional and direct sovereign act of the people which is beyond the ambit of judicial review, let alone a mere administrative regulation.
It is undeniable that former President Marcos was forced out of office by the people through the so-called EDSA Revolution. Said political act of the people should not be automatically given a particular legal meaning other than its obvious consequence- that of ousting him as president. To do otherwise would lead the Court to the treacherous and perilous path of having to make choices from multifarious inferences or theories arising from the various acts of the people. It is not the function of the Court, for instance, to divine the exact implications or significance of the number of votes obtained in elections, or the message from the number of participants in public assemblies. If the Court is not to fall into the pitfalls of getting embroiled in political and oftentimes emotional, if not acrimonious, debates, it must remain steadfast in abiding by its recognized guiding stars - clear constitutional and legal rules - not by the uncertain, ambiguous and confusing messages from the actions of the people.
Conclusion
In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse of discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose its authority to check and override an act entrusted to the judgment of another branch. Truly, the President's discretion is not totally unfettered. "Discretion is not a freespirited stallion that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic formulation, 'discretion is not unconfined and vagrant' but 'canalized within banks that keep it from overflowing.'"[186] At bar, President Duterte, through the public respondents, acted within the bounds of the law and jurisprudence. Notwithstanding the call of human rights advocates, the Court must uphold what is legal and just. And that is not to deny Marcos of his rightful place at the LNMB. For even the Framers of our Constitution intend that full respect for human rights is available at any stage of a person's development, from the time he or she becomes a person to the time he or she leaves this earth.[187]
There are certain things that are better left for history - not this Court - to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime, the country must mov'e on and let this issue rest.
WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. Necessarily, the Status Quo Ante Order is hereby LIFTED.
Sereno, C. J., See dissenting opinion.
Carpio, J., See dissenting opinion.
Velasco, Jr.,** J., I concur in the ponencia as also in the opinion of Justice Mendoza.
Leonardo-De Castro, J., I concur in the ponencia and separate opinion of Justice Mendoza.
Brion, J., with separate concurring opinion.
Bersamin, J., See separate opinion.
Del Castillo, J., I join the separate opinion.
Perez, J., See separate opinion.
Mendoza, J., See separate opinion.
Reyes, J., Inhibited/no part.
Perlas-Bernabe, J., I join the separate opinion of J. Mendoza.
Leonen, J., I dissent. See separate opinion.
Jardeleza, J., I join dissent of J. Caguioa.
Caguioa, J., I dissent. See separate opinion.
Sirs/Mesdames:
Please take notice that on November 8, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled cases, the original of which was received by this Office on November 10, 2016 at 5:15 p.m.
* Rene A.V. Saguisag, et al. filed a petition for certiorari-in-intervention.
** On official leave.
[1] See Annex "A" of Petition for Prohibition of Lagman, et al., G.R. No. 225984.
[2] See Annex "B,", id. (Emphasis in the original)
[3] G.R. No. 225973.
[4] TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES, MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EX-DETAINEES LABAN SA DETENSYON AT ARESTO (SELDA) represented by DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARlO, FELIX C. DALISAY and DANILO M. DELA FUENTE.
[5] G.R. No. 225973.
[6] RENE A. Q. SAGUISAG, JR.
[7] RENE A. C. SAGUISAG, III.
[8] G.R. No. 225984.
[9] FIND CO-CHAIRPERSON, NILDA L. SEVILLA, REP. TEDDY BRAWNER BAGUILAT, JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP. EMMANUEL A. BILLONES.
[10] G.R. No. 226097
[11] HILDA B. NARCISO, AIDA F. SANTOS-MARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR, MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUUE G. CRlSMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE ond ABDULMARI DE LEON IMAO, JR.
[12] G.R. No. 226116.
[13] JOEL C. LAMANGAN, FRANCIS X. MAGLAPUS, EDILBERTO C. DE JESUS, BELINDA O. CUNANAN, CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P. OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M. QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA, AUGUSTO A. LEGASTO, JR. and JULIA KRISTINA P. LEGASTO
[14] G.R. No. 226117.
[15] JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, and JUAN ANTONIO RAROGAL MAGALANG
[16] G.R. No. 226120.
[17] Defined as native peoples who have historically inhabited Mindanao, Palawan and Sulu, who are largely of the Islamic Faith, under Sec. 4, par. d.[8], RA 9710 othenvise known as The Magna Carta of Women.
[18] G.R. No. 226294.
[19] Belgica, et al., v. Han. Exec. Sec. Ochoa, Jr., 721 Phil. 416, 518-519 (2013).
[20] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, 471 (2010).
[21] Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519, citing Province of North Cotabato, et al. v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), et al., 589 Phil. 387, 481 (2008).
[22] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), et al., supra.
[23] Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519-520.
[24] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Acestral Domain (GRP), et al., supra note 21.
[25] Tañada v. Cuenco, 100 Phil. 1101 (1957); Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 526.
[26] Id.; id.
[27] Black's Law Dictionary, 941 (1991 6th ed.).
[28] Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 527.
[29] Id. at 527, citing La Bugal-B'Laan, Inc. v. Sec. Ramos, 465 Phil. 860, 890 (2004).
[30] Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 528.
[31] Rene A.V. Saguisag, Sr. and Rene A.Q. Saguisag, Jr.
[32] Prof David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 762 (2006).
[33] Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000).
[34] Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110.
[35] The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015, 747 SCRA 1, 46.
[36] 258 Phil 479 (1989).
[37] REP. TEDDY BRAWNER BAGUILAT JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP. EMMANUEL A. BILLONES.
[38] BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 648 (2000).
[39] Biraogo v. The Philippine Truth Commission, 651 Phil. 374, 439 (2010).
[40] Maglalang v. Philippine Amusement and Gaming Corp., 723 Phil. 546, 556 (2013).
[41] Id.
[42] Id. at 557.
[43] Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction, which are based on sound public policy and practical considerations, are not inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of nonexhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo warranto proceedings. (See Republic v. Lacap, 546 Phil. 87, 97-98 [2007]).
[44] Book IV, Chapter 1, Section 1 of the Administrative Code.
[45] Direct resort to the Court is allowed as follows (1) when there are genuine issues of constitutionality that must be addressed at the most immediate time; (2) when the issues involved are of transcendental importance; (3) when cases of first impression are involved; and (4) when constitutional issues raised are better decided by the Court; (5) when the time element presented in the case cannot be ignored; (6) when the filed petition reviews the act of a constitutional organ; (7) when petitioners rightly claim that they had no other plain, speedy and adequate remedy in the ordinary course of law that could free them from the injurious effects of respondents' acts in violation of their right to freedom of expression; and (8) when the petition includes questions that are "dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were foundo be patent nullities, or the appeal was considered as clearly an inappropriate remedy." (See The Diocese of Bacolod v. Commission on Elections, supra note 35, at 45-49.
[46] Almario, et al. v. Executive Secretary, et al., 714 Phil. 127, 169 (2013).
[47] SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
[48] SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.
[49] SECTION 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth atriotism and nationalism, and encourage their involvement in public and civic affairs.
[50] SECTION 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.
[51] SECTION 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
[52] SECTION 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.
[53] SECTION 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
[54] SECTION 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
[55] SECTION 3. x x x
(2) They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.
[56] SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
[57] SECTION 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.
A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.
The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeying is commenced as herein provided.
[58] 338 Phil. 546 (1997).
[59] Tañada v. Angara, supra, at 580-581. (Citations omitted). The case was cited in Tondo Medical Center Employees Ass'n v. Court of Appeals, 554 Phil. 609, 625-626 (2007); Bases Conversion and Development Authority v. COA, 599 Phil. 455, 465 (2009); and Representatives Espina, et al. v. Han. Zamora, Jr. (Executive Secretary), et al., 645 Phil. 269, 278-279 (2010). See also Manila Prince Hotel v. GSIS, 335 Phil. 82, 101-102 (1997).
[60] Executive Order No. 292, s. 1987, Signed on July 25, 1987.
[61] Biraogo v. The Phil. Truth Commission of 2010, 651 Phil. 374, 451 (2010).
[62] Philippine Constitution Association v. Enriquez, G.R. No. 113105, 113174, 113766, and 113888, August 19, 1994, 235 SCRA 506, 552.
[63] Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426 & 212444, January 12, 2016.
[64] Almario, et al. v. Executive Secretary, et al., supra note 46, at 164, as cited in Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., supra note 63.
[65] Almario, et al. v. Executive Secretary, et al., supra note 46, at 164.
[66] Entitled "An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes and Patriots of the Country," approved on June 16, 1948.
[67] Section 1.
[68] Sec. 2. There is hereby created a Board on National Pantheon composed of the Secretary of the Interior, the Secretary of Public Works and Communications and the Secretary of Education and two private citizens to be appointed by the President of the Philippines with the consent of the Commission on Appointments which shall have the following duties and functions:
(a) To determine the location of a suitable site for the construction of the said National Pantheon, and to have such site acquired, surveyed and fenced for this purpose and to delimit and set aside a portion thereof wherein shall be interred the remains of all Presidents of the Philippines and another portion wherein the remains of heroes, patriots and other great men of the country shall likewise be interred;
(b) To order and supervise the construction thereon of uniform monuments, mausoleums, or tombs as the Board may deem appropriate;
(c) To cause to be interred therein the mortal remains of all Presidents of the Philippines, the national heroes and patriots;
(d) To order and supervise the construction of a suitable road leading to the said National Pantheon from the nearest national or provincial road; and
(e) To perform such other functions as may be necessary to carry out the purposes of this Act.
[69] Office of the President of the Philippines. (1953). Official Month in Review. Official Gazette of the Republic of the Philippines, 49(5), lxv-lxxvi (http://www.gov.ph/1953/05/01/official-month-in-review-may-1953/, last accessed on October 28, 2016).
[70] Approved on February 25, 2013, R.A. No. 10368 is the consolidation of House Bill (H.B.) No. 5990 and Senate Bill (S.B.) No. 3334. H.B. No. 5990, entitled "An Act Providing Compensation To Victims Of Human Rights Violations During The Marcos Regime, Documentation Of Said Violations, Appropriating Funds Therefor, And For Other Purposes," was co-sponsored by Lorenzo R. Tañada III, Edcel C. Lagman, Rene L. Relampagos, Joseph Emilio A. Abaya, Walden F. Bello, Kaka J. Bag-ao, Teodoro A. Casiño, Neri Javier Colmenares, Rafael V. Mariano, Luzviminda C. Ilagan, Antonio L. Tinio, Emerenciana A. De Jesus, and Raymond V. Palatino. No member of the House signified an intention to ask any question during the period of sponsorship and debate, and no committee or individual amendments were made during the period of amendments (Congressional Record, Vol. 2, No. 44, March 14, 2012, p. 3). The bill was approved on Second Reading (Congressional Record, Vol. 2, No. 44, March 14, 2012, p. 4). On Third Reading, the bill was approved with 235 affirmative votes, no negative vote, and no abstention (Congressional Record, Vol. 2, No. 47, March 21, 2012, p. 15). On the other hand, S.B. No. 3334, entitled "An Act Providing For Reparation And Recognition Of The Survivors And Relatives Of The Victims Of Violations Of Human Rights And Other Related Violations During The Regime Of Former President Ferdinand Marcos, Documentation Of Said Violations, Appropriating Funds Therefor, And For Other Purposes," was coauthored by Sergio R. Osmena III, Teofisto D. Guingona III, Francis G. Escudero, and Franklin M. Drilon. Senators Drilon and Panfilo M. Lacson withdrew their reservation to interpellate on the measure (Senate Journal No. 41, December 10, 2012, p. 1171). The bill was approved on Second Reading with no objection (Senate Journal No. 41, December 10, 2012, p. 1172). On Third Reading, the bill was approved with 18 senators voting in favor, none against, and no abstention (Senate Journal No. 44, December 17, 2012, p. 1281).
[71] Human Rights Violations Victim (HRVV) refers to a person whose human rights were violated by persons acting in an official capacity and/or agents of the State as defined herein. In order to qualify for reparation under this Act, the human rights violation must have been committed during the period from Soptomboc 21, 1972 to February 25, 1986: Provided, however, That victims of human rights violations that were committed one (1) month before September 21, 1972 and one (1) month after February 25, 1986 shall be entitled to reparation under this Act if they can establish that the violation was committed:
(1) By agents of the State and/or persons acting in an official capacity as defined hereunder;
(2) For the purpose of preserving, maintaining, supporting or promoting the said regime; or
(3) To conceal abuses during the Marcos regime and/or the effects of Martial Law. (Sec. 3[c] of R.A. No. 10368).
[72] Section 11 Article II and Section 12 Article III of the 1987 Constitution as well as Section 2 of Article II of the 1987 Constitution in relation to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment, and other international human rights laws and conventions (See Sec. 2 of R.A. No. 10368).
[73] The claimants in the class suit and direct action plaintiffs in the Human Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 86-0390) in the US Federal District Court of Honolulu, Hawaii wherein a favorable judgment has been rendered, and the HRVVs recognized by the Bantayog Ng Mga Bayani Foundation shall be extended the conclusive presumption that they are HRVVs. However, the Human Rights Victims' Claims Board is not deprived of its original jurisdiction and its inherent power to determine the extent of the human rights violations and the corresponding reparation and/or recognition that may be granted (See Sec. 17 of R.A. No. 10368).
[74] Sec. 4 of R.A. No. 10368.
[75] Sec. 5 of R.A. No. 10368.
[76] Sec. 26 of R.A. No. 10368.
[77] Id.
[78] Id.
[79] Sec. 27 of R.A. No. 10368.
[80] "Memorialization" refers to the preservation of the memory of the human rights violations victims, objects, events and lessons learned during the Marcos regime. This is part of the inherent obligation of the State to acknowledge the wrongs committed in the past, to recognize the heroism and sacrifices of all Filipinos who were victims of gross human rights violations during Martial Law, and to prevent the recurrence of similar abuses. (Sec. 1 [j], Rule II, IRR of R.A. No. 10368).
[81] Sec. 1, Rule VII, IRR of R.A. No. 10368.
[82] Sec. 2, Rule VII, IRR of R.A. No. 10368.
[83] Sec. 3, Rule VII, IRR of R.A. No. 10368.
[84] Remman Enterprises, Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al., 726 Phil. 104, 118-119 (2014).
[85] Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
[86] IX. Reparation for harm suffered
15. Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.
16. States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.
17. States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgements.
18. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
19. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one's place of residence, restoration of employment and return of property.
20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
21. Rehabilitation should include medical and psychological care as well as legal and social services.
22. Satisfaction should include, where applicable, any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim's relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations;
(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;
(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;
(e) Public apology, including acknowledgment of the facts and acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.
23. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;
(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.
[87] PRINCIPLE 2. THE INALIENABLE RIGHT TO THE TRUTH
Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.
PRINCIPLE 3. THE DUTY TO PRESERVE MEMORY
A people's knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfillment of the State's duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
[88] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of December 16, 1966, entry into force March 23, 1976, in accordance with Article 49 (http.//www.ohchr.org/en/professionalinterest/pages/ccpr.aspx, last accessed on October 28, 2016).
[89] A.M. No. 07-9-12-SC, Effective on October 24, 2007.
[90] A.M. No. 08-1-16-SC, Effective on February 2, 2008.
[91] Reiterated in OCA Circular No. 103-07 dated October 16, 2007 and OCA Circular No. 46-09 dated April 20, 2009.
[92] VI. Treatment of victims
10. Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation.
[93] Originated from A.O. No. 101 dated Docember 13, 1988 and A.O. No. 29 dated January 27, 2002.
[94] Sec. 4 of R.A. No. 10086.
[95] Sec. 5 ofR.A. No. 10086.
[96] Id.
[97] Approved on March 26, 2010.
[98] Approved on May 12, 2010 and took effect on June 13, 2010.
[99] Sec. 2 of R.A. 10066 and Sec. 2 of R.A. 10086.
[100] Id.
[101] Id.
[102] See Sec. 4 (d) ofR.A. 10066 in relation to Sec. 3 (u) of R.A. No. 10066 and Sec. 3 (n) of R.A. No. 10086. The Implementing Rules and Regulations of R.A. No. 10086 specifically defines National Historical Shrine as "a site or structure hallowed and revered for its association to national heroes or historical events declared by the Commission." (Art. 6[q.], Rule 5, Title I)
[103] R.A. No. 597, as amended by R.A. Nos. 1569 and 1607.
[104] E.O. No. 58 issued on August 16, 1954 (See Arula v. Brig. Gen. Espino, etc., et al., 138 Phil. 570, 589-591 (1969)).
[105] R.A. No. 2733.
[106] R.A. No. 4039.
[107] Proclamation No. 207 dated May 27, 1967.
[108] Proclamation No. 433 dated July 23, 1968.
[109] R.A. No. 5648.
[110] R.A. No. 5649.
[111] R.A. No. 5695.
[112] Proclamation No. 618 dated October 13, 1969, as amended by Proclamation No. 1272 dated June 4, 1974.
[113] R.A. No. 6468.
[114] Batas Pambansa Bilang 309 dated November 14, 1982.
[115] Proclamation No. 1992 dated February 8, 2010.
[116] P.D. No. 105 dated January 24, 1973.
[117] Entitled "Declaring National Shrines As Sacred (Hallowed) Places And Prohibiting Desecration Thereof" (Signed on January 24, 1973)
[118] Sec. 48 (b).
[119] Sec. 31 (d) of R.A. No. 10066.
[120] Sec. 5 (d) of R.A. No. 10086.
[121] Article 12 (e) and (f) Rule 8 Title III of the Implementing Rules and Regulations of R.A. No. 10086.
[122] Proclamation No. 25 dated April 18, 1966.
[123] Proclamation No. 1682 dated October 17, 1977.
[124] Proclamation No. 842 dated December 7, 1991 and R.A. No. 8221.
[125] Proclamation No. 228 dated August 12, 1993.
[126] Proclamation No. 425 dated July 13, 1994.
[127] R.A. No. 10796.
[128] http://server.pvao.mil.ph/PDF/shrines/usafipnl.pdf, last accessed on September 19, 2016.
[129] Proclamation No. 208 dated May 28, 1967.
[130] See Whereas Clause of Proclamation No. 86.
[131] Section I, Article XV, Chapter I, Part XII of the IRP.
[132] Book IV, Title VIII, Subtitle II, Chapter 1, Sec. 18.
[133] Book IV, Title VIII, Subtitle II, Chapter 5, Sec. 32(4).
[134] See Annex to the Manifestation of the AFP Adjutant General and http://server.pvao.mil.ph/PDF/shrines/libingan.pdf (last accessed on October 25, 2016).
[135] P.D. No. 105 is an issuance of Marcos, acting as the AFP Commander-in-Chief and by virtue of his powers under the Martial Law. It was not a law that was enacted by the Congress.
[136] P.D. No. 208 was signed on May 28, 1967 while P.D. No. 105 was signed on January 24, 1973.
[137] Among those named were the birthplace of Dr. Jose Rizal in Calamba, Laguna, Talisay, Dapitan City, where the hero was exiled for four years, Fort Santiago, Manila, where he was imprisoned in 1896 prior to his execution; Talaga, Tanauan, Batangas where Apolinario Mabini was born, Pandacan, Manila, where Mabini's house in which he died, is located; Aguinaldo Mansion in Kawit, Cavite, where General Emilio Aguinaldo, first President of the Philippines, was born, and where Philippine Independence was solemnly proclaimed on June 12, 1898; and Batan, Aklan, where the "Code of Kalantiyaw" was promulgated in 1433.
[138] Under the principle of ejusdem generis, "where a general word or phrase follows an enumeration of particular and specific words of the same class or where the latter follow the former, the general word or phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned."
The purpose and rationale of the principle was explained by the Court in National Power Corporation v. Angas as follows:
[140] Also includes the United States Soldiers' and Airmen's National Cemetery in the District of Columbia.
[141] See 32 C.F.R. § 553.3 and 10 U.S.C.A. § 4721.
[142] Id.
[143] 10 U.S.C.A. § 4723.
[144] 36 C.F.R. § 12.2.
[145] Id.
[146] Id.
[147] See National Electrification Administration v. COA, 427 Phil. 464, 485 (2002).
[148] On August 19, 1992, the Government of the Republic of the Philippines, represented by Department of Interior and Local Government (DILG) Secretary Rafael M. Alunan III, and the family of the late President Marcos, represented by his widow, Mrs. Imelda R. Marcos, agreed on the following conditions and procedures by which the remains of the former President shall be brought back to and interred in the Philippines:
On August 25, 1993, Roque R. Ablan Jr. wrote DILG Secretary Alunan, confirming the previous arrangements between him and Mrs. Marcos, and also the arrangements made by Ablan before President Fidel V. Ramos on the following matters:
On September 10, 1993, the coffin of former President Marcos was opened inside the mausoleum and was subsequently placed inside a transparent glass for viewing.
[149] Book III, Title I, Chapter 4, Section 14 of the Administrative Code.
[150] From December 30, 1965 until February 25, 1986 when he and his immediate family members were forcibly exiled in the USA because of the EDSA People Power Revolution.
[151] He was an Assemblyman (1949 to 1959) and a Senator (1959-1965), serving as Senate President during his last three (3) years.
[152] From December 31, 1965 to January 20, 1967.
[153] On November 15, 1941, Marcos was called and inducted to the United States Armed Forces in the Far East (USAFFE) as Third Lieutenant. From November 16, 1941 to April 8, 1942, he was assigned as assistant G-2 of the 21st (Lightning) Division of the USAFFE, where he attained the rank of First Lieutenant. He was then promoted to the rank of Colonel under Special Orders No. 68 dated September 25, 1962. In Special Orders No. 264 dated June 11, 1963 and General Orders No. 265 dated May 19, 1964, he remained listed as Colonel. (See Annex "13" of the Consolidated Comment filed by the OSG).
[154] The PVAO recognized Marcos as a member of the retired army personnel. Based on a Certification dated August 18, 2016 issued by PVAO's Records Management Division Chief, respondent Imelda Romualdez Marcos is receiving P5,000.00 as Old Age Pension, being the surviving spouse of a retired veteran under R.A. No. 6948, as amended. (See Annex "12" of the Consolidated Comment filed by the OSG).
[155] During his military career, Marcos was awarded a Medal of Valor through General Orders No. 167 dated October 16, 1968 "for extraordinary gallantry and intrepidity at the risk of life, above and beyond the call of duty in a suicidal action against overwhelming enemy forces at the junction of Salian River and Abo-Abo River, Bataan, on or about 22 January 1942." (See Annex "14" of Consolidated Comment filed by the OSG).
[156] See Yap v. Commission on Audit, 633 Phil. 174, 188 (2010).
[157] Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771 & 181527, December 8, 2015.
[158] Almario, et al. v. Executive Secretary, et al., supra note 46, at 166.
[159] 10 U.S.C.A. § 4722.
[160] 32 C.F.R. § 553.12
[161] The following persons are not eligible for interment, inurnment, or memorialization in an Army National Military Cemetery:
(a) A father, mother, brother, sister, or in-law solely on the basis of his or her relationship to a primarily eligible person, even though the individual is:
(1) Dependent on the primarily eligible person for support; or
(2) A member of the primarily eligible person's household.
(b) A person whose last period of service was not characterized as an honorable discharge (e.g., a separation or discharge under general but honorable conditions, other than honorable condbiatdions, a conduct discharge, a dishonorable discharge, or a dismissal), regardless of whether the person:
(1) Received any other veterans' benefits; or
(2) Was treated at a Department of Veterans Affairs hospital or died in such a hospital.
(c) A person who has volunteered for service with the U.S. Armed Forces, but has not yet entered on active duty.
(d) A former spouse whose marriage to the primarily eligible person ended in divorce.
(e) A spouse who predeceases the primarily eligible person and is interred or inurned in a location other than Arlington National Cemetery, and the primarily eligible person remarries.
(f) A divorced spouse of a primarily eligible person.
(g) Otherwise derivatively eligible persons, such as a spouse or minor child, if the primarily eligible person was not or will not be interred or inurned at Arlington National Cemetery.
(h) A service member who dies while on active duty, if the first General Courts Martial Convening Authority in the service member's chain of command determines that there is clear and convincing evidence that the service member engaged in conduct that would have resulted in a separation or discharge not characterized as an honorable discharge (e.g., a separation or discharge under general but honorable conditions, other than honorable conditions, a bad conduct discharge, a dishonorable discharge, or a dismissal) being imposed, but for the death of the service member.
(i) Animal remains. If animal remains are unintentionally commingled with human remains due to a natural disaster, unforeseen accident, act of war or terrorism, violent explosion, or similar incident, and such remains cannot be separated from the remains of an eligible person, then the remains may be interred or inurned with the eligible person, but the identity of the animal remains shall not be inscribed or identified on a niche, marker, headstone, or otherwise. (See 32 C.F.R. § 553.19)
[162] (a) Prohibition. Notwithstanding §§ 553.12-553.16, 553.18, and 553.22, pursuant to 10 U.S.C. 985 and 38 U.S.C. 2411, the interment, inurnment, or memorialization in an Army National Military Cemetery of any of the following persons is prohibited:
(1) Any person identified in writing to the Executive Director by the Attorney General of the United States, prior to his or her interment, inumment, or memorialization, as a person who has been convicted of a Federal capital crime and whose conviction is final (other than a person whose sentence was commuted by the President).
(2) Any person identified in writing to the Executive Director by an appropriate State official, prior to his or her interment, inurnment, or memorialization, as a person who has been convicted of a State capital crime and whose conviction is final (other than a person whose sentence was commuted by the Governor of the State).
(3) Any person found under procedures specified in § 553.21 to have committed a Federal or State capital crime but who has not been convicted of such crime by reason of such person not being available for trial due to death or flight to avoid prosecution. Notice from officials is not required for this prohibition to apply.
(4) Any person identified in writing to the Executive Director by the Attorney General of the United States or by an appropriate State official, prior to his or her interment, inurnment, or memorialization, as a person who has been convicted of a Federal or State crime causing the person to be a Tier III sex offender for purposes of the Sex Offender Registration and Notification Act, who for such crime is sentenced to a minimum of life imprisonment and whose conviction is final (other than a person whose sentence was commuted by the President or the Governor of a State, as the case may be).
(b) Notice. The Executive Director is designated as the Secretary of the Army's representative authorized to receive from the appropriate Federal or State officials notification of conviction of capital crimes referred to in this section.
(c) Confirmation of person's eligibility.
(1) If notice has not been received, but the Executive Director has reason to believe that the person may have been convicted of a Federal capital crime or a State capital crime, the Executive Director shall seek written confirmation from:
(i) The Attorney General of the United States, with respect to a suspected Federal capital crime; or
(ii) An appropriate State official, with respect to a suspected State capital crime.
(2) The Executive Director will defer the decision on whether to inter, inurn, or memorialize a decedent until a written response is received. (See 32 C.F.R.§ 553.20)
[163] The medal of honor awarded posthumously to a deceased member of the armed forces who, as an unidentified casualty of a particular war or other armed conflict, is interred in the Tomb of the Unknowns at Arlington National Cemetery, Virginia, is awarded to the member as the representative of the members of the armed forces who died in such war or other armed conflict and whose remains have not been identified, and not to the individual personally. (10 U.S.C.A. § 1134)
[164] Includes the Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, United States Trade Representative, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security, Director of the Office of Management and Budget, Commissioner of Social Security, Social Security Administration, Director of National Drug Control Policy, Chairman and Board of Governors of the Federal Reserve System, and Director of National Intelligence.
[165] Includes the Deputy Secretary of Defense, Deputy Secretary of State, Deputy Secretary of State for Management and Resources, Administrator of Agency for International Development, Administrator of the National Aeronautics and Space Administration, Deputy Secretary of Veterans Affairs, Deputy Secretary of Homeland Security, Under Secretary of Homeland Security for Management, Deputy Secretary of the Treasury, Deputy Secretary of Transportation, Chairman of Nuclear Regulatory Commission, Chairman of Council of Economic Advisers, Director of the Office of Science and Technology, Director of the Central Intelligence Agency, Secretary of the Air Force, Secretary of the Army, Secretary of the Navy, Administrator of Federal Aviation Administration, Director of the National Science Foundation, Deputy Attorney General, Deputy Secretary of Energy, Deputy Secretary of Agriculture, Director of the Office of Personnel Management, Administrator of Federal Highway Administration, Administrator of the Environmental Protection Agency, Under Secretary of Defense for Acquisition, Technology, and Logistics, Deputy Secretary of Labor, Deputy Director of the Office of Management and Budget, Independent Members of Thrift Depositor Protection Oversight Board, Deputy Secretary of Health and Human Services, Deputy Secretary of the Interior, Deputy Secretary of Education, Deputy Secretary of Housing and Urban Development, Deputy Director for Management of Office of Management and Budget, Director of the Federal Housing Finance Agency, Deputy Commissioner of Social Security, Social Security Administration, Administrator of the Community Development Financial Institutions Fund, Deputy Director of National Drug Control Policy, Members and Board of Governors of the Federal Reserve System, Under Secretary of Transportation for Policy, Chief Executive Officer of Millennium Challenge Corporation, Principal Deputy Director of National Intelligence, Director of the National Counterterrorism Center, Director of the National Counter Proliferation Center, Administrator of the Federal Emergency Management Agency and Federal Transit Administrator.
[166] The following persons are eligible for inurnment in the Arlington National Cemetery Columbarium, unless otherwise prohibited as provided for in §§ 553.19-553.20, provided that the last period of active duty of the service member or veteran ended with an honorable discharge.
(a) Primarily eligible persons. The following are primarily eligible persons for purposes of inurnment:
(1) Any person eligible for interment in Arlington National Cemetery, as provided for in § 553.12(a).
(2) Any veteran who served on active duty other than active duty for training.
(3) Any member of a Reserve component of the Armed Forces who dies while:
(i) On active duty for training or performing full-time duty under title 32, United States Code;
(ii) Performing authorized travel to or from such active duty for training or full-time duty;
(iii) On authorized inactive-duty training, including training performed as a member of the Army National Guard of the United States or the Air National Guard of the United States; or
(iv) Hospitalized or receiving treatment at the expense of the Government for an injury or disease incurred or contracted while on such active duty for training or full-time duty, traveling to or from such active duty for training or full-time duty, or on inactive-duty training.
(4) Any member of the Reserve Officers' Training Corps of the United States, Army, Navy, or Air Force, whose death occurs while:
(i) Attending an authorized training camp or cruise;
(ii) Performing authorized travel to or from that camp or cruise; or
(iii) Hospitalized or receiving treatment at the expense of the Government for injury or disease incurred or contracted while attending such camp or cruise or while traveling to or from such camp or cruise.
(5) Any citizen of the United States who, during any war in which the United States has been or may hereafter be engaged, served in the armed forces of any government allied with the United States during that war, whose last service ended honorably by death or otherwise, and who was a citizen of the United States at the time of entry into that service and at the time of death.
(6) Commissioned officers, United States Coast and Geodetic Survey (now National Oceanic and Atmospheric Administration) who die during or subsequent to the service specified in the following categories and whose last service terminated honorably:
(i) Assignment to areas of immediate military hazard.
(ii) Served in the Philippine Islands on December 7, 1941.
(iii) Transferred to the Department of the Army or the Department of the Navy under certain statutes.
(7) Any commissioned officer of the United States Public Health Service who served on full-time duty on or after July 29, 1945, if the service falls within the meaning of active duty for training as defined in 38 U.S.C. 101(22) or inactive duty training as defined in 38 U.S.C. 101(23) and whose death resulted from a disease or injury incurred or aggravated in line of duty. Also, any commissioned officer of the Regular or Reserve Corps of the Public Health Service who performed active service prior to July 29, 1945 in time of war; on detail for duty with the Armed Forces; or while the service was part of the military forces of the United States pursuant to Executive order of the President.
(8) Any Active Duty Designee as defined in this part.
(b) Derivatively eligible persons. Those connected to an individual described in paragraph (a) of this section through a relationship described in § 553.12(b). Such individuals may be inurned if space is available in the primarily eligible person's niche. (32 C.F.R. § 553.13).
[167] (a) The cremated remains of any person eligible for interment in Arlington National Cemetery as described in § 553.12 may be interred in the designated Arlington National Cemetery Unmarked Area.
(b) Cremated remains must be interred in a biodegradable container or placed directly into the ground without a container. Cremated remains are not authorized to be scattered at this site or at any location within Arlington National Cemetery.
(c) There will be no headstone or marker for any person choosing this method of interment. A permanent register will be maintained by the Executive Director.
(d) Consistent with the one-gravesite-per-family policy, once a person is interred in the Unmarked Area, any derivatively eligible persons and spouses must be interred in this manner. This includes spouses who are also primarily eligible persons. No additional gravesite, niche, or memorial marker in a memorial area will be authorized. (32 C.F.R. § 553.14).
[168] (a) The Executive Director may authorize a group burial in Arlington National Cemetery whenever several people, at least one of whom is an active duty service member, die during a military-related activity and not all remains can be individually identified.
(b) Before authorizing a group burial that includes both United States and foreign decedents, the Executive Director will notify the Department of State and request that the Department of State notify the appropriate foreign embassy. (32 C.F.R. § 553.15).
[169] 32 C.F.R. § 553.22(a).
[170] Id.
[171] Approved on March 22, 2001 and published in national newspapers of general circulation on April 9, 2001 as well as in the Official Gazette on July 9, 2001. It repealed P.O. No. 1687 dated March 24, 1980.
[172] Sec. 1 of R.A. No. 9049.
[173] Id.
[174] In the event of the awardee's death, the gratuity shall accrue in equal shares and with the right of accretion to the surviving spouse until she remarries and to the children, legitimate, or adopted or illegitimate, until they reach the age of eighteen (18) or until they marry, whichever comes earlier.
[175] Sec. 1 of R.A. No. 6948.
[176] Amended by R.A. Nos. 7696, 9396, and 9499.
[177] A veteran refers to "any person who: (1) rendered military service in the land, sea or air forces of the Philippines during the revolution against Spain, the Philippine-American War, and World War II, including Filipino citizens who served with the Allied Forces in Philippine territory; (2) was a member of the Philippine Expeditionary Forces sent to the Korean War and the Philippine Civic Action Group sent to the Vietnam War; (3) rendered military service in the Armed Forces of the Philippines (AFP) and has been honorably discharged or retired after at least twenty (20) years total cumulative active service or sooner separated while in the active service in the AFP due to death or disability arising from a wound or injury received or sickness or disease incurred in line of duty." (Sec. 2 [a] of R.A. No. 6948, as amended by R.A. No. 9396).
[178] Sec. 25 of R.A. No. 6948.
[179] Section 14, Article III.
[180] (a) Preliminary inquiry. If the Executive Director has reason to believe that a decedent may have committed a Federal capital crime or a State capital crime but has not been convicted of such crime by reason of such person not being available for trial due to death or flight to avoid prosecution, the Executive Director shall submit the issue to the Army General Counsel. The Army General Counsel or his or her designee shall initiate a preliminary inquiry seeking information from Federal, State, or local law enforcement officials, or other sources of potentially relevant information.
(b) Decision after preliminary inquiry. If, after conducting the preliminary inquiry described in paragraph (a) of this section, the Army General Counsel or designee determines that credible evidence exists suggesting the decedent may have committed a Federal capital crime or State capital crime, then further proceedings under this section are warranted to determine whether the decedent committed such crime. Consequently the Army General Counsel or his or her designee shall present the personal representative with a written notification of such preliminary determination and a dated, written notice of the personal representative's procedural options.
(c) Notice and procedural options. The notice of procedural options shall indicate that, within fifteen days, the personal representative may:
(1) Request a hearing;
(2) Withdraw the request for interment, inurnment, or memorialization; or
(3) Do nothing, in which case the request for interment, inurnment, or memorialization will be considered to have been withdrawn.
(d) Time computation. The fifteen-day time period begins on the calendar day immediately following the earlier of the day the notice of procedural options is delivered in person to the personal representative or is sent by U.S. registered mail or, if available, by electronic means to the personal representative. It ends at midnight on the fifteenth day. The period includes weekends and holidays.
(e) Hearing. The purpose of the hearing is to allow the personal representative to present additional information regarding whether the decedent committed a Federal capital crime or a State capital crime. In lieu of making a personal appearance at the hearing, the personal representative may submit relevant documents for consideration.
(1) If a hearing is requested, the Army General Counsel or his or her designee shall conduct the hearing.
(2) The hearing shall be conducted in an informal manner.
(3) The rules of evidence shall not apply.
(4) The personal representative and witnesses may appear, at no expense to the Government, and shall, in the discretion of the Army General Counsel or his or her designee, testify under oath. Oaths must be administered by a person who possesses the legal authority to administer oaths.
(5) The Army General Counsel or designee shall consider any and all relevant information obtained.
(6) The hearing shall be appropriately recorded. Upon request, a copy of the record shall be provided to the personal representative.
(f) Final determination. After considering the opinion of the Army General Counsel or his or her designee, and any additional information submitted by the personal representative, the Secretary of the Army or his or her designee shall determine the decedent's eligibility for interment, inurnment, or memorialization. This determination is final and not appealable.
(1) The determination shall be based on evidence that supports or undermines a conclusion that the decedent's actions satisfied the elements of the crime as established by the law of the jurisdiction in which the decedent would have been prosecuted.
(2) If an affirmative defense is offered by the decedent's personal representative, a determination as to whether the defense was met shall be made according to the law of the jurisdiction in which the decedent would have been prosecuted.
(3) Mitigating evidence shall not be considered.
(4) The opinion of the local, State, or Federal prosecutor as to whether he or she would have brought charges against the decedent had the decedent been available is relevant but not binding and shall be given no more weight than other facts presented.
(g) Notice of decision. The Executive Director shall provide written notification of the Secretary's decision to the personal representative. (See 32 C.F.R. § 553.21; Effective: October 26, 2016 ).
[181] The requirements for a valid and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class. (Ferrer. Jr. v. Bautista, G.R. No. 210551, June 30, 2015, 760 SCRA 652, 709-710).
[182] Commonwealth Act No. 408 dated September 14, 1938, as amended.
[183] ARTICLE 94. Various Crimes. - Any person subjected to military law who commits any crime, breach of law or violation of municipal ordinance, which is recognized as an offense of a penal nature and is punishable under the penal laws of the Philippines or under municipal ordinances, on a Philippine Army reservation, shall be punished as a court-martial may direct; Provided, That in time of peace, officers and enlisted men of the Philippine Constabulary shall not be triable by courts-martial for any felony, crime, breach of law or violation of municipal ordinances committed under this Article.
ARTICLE 95. Frauds Against the Government Affecting Matters and Equipments. - Any person subject to military law who, having charge, possession, custody, or control of any money or other property of the Commonwealth of the Philippines, furnished or intended for the military service thereof, knowingly delivers, or causes to be delivered, to any person having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt; or
Who, being authorized to make or deliver any paper certifying the receipt of any property of the Commonwealth of the Philippines furnished or intended for the military service thereof, makes or delivers to any person such writing, without having full knowledge of the truth of the statements therein contained and with intent to defraud the Philippines; or
Who steals, embezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, or other property of the Commonwealth of the Philippines furnished or intended for the military service thereof; or
Who knowingly purchases or receives in pledge for any obligation or indebtedness from any soldier, officer, or other person who is a part of or employed in said forces or service, any ordnance, arms, equipment, ammunition, clothing subsistence stores, or other property of the Commonwealth of the Philippines, such soldier, officer, or other person not having lawful right to sell or pledge the same;
Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court-martial may adjudge, or by any or all of said penalties. And if any person, being guilty of any of the offenses aforesaid while in the military service of the Philippines, received his discharge or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial in the same manner and to the same extent as if he had not received such discharge nor been dismissed. And if any officer, being guilty, while in the military service of the Philippines of embezzlement of ration savings, post exchange, company, or other like funds, or of embezzlement of money or other property entrusted to his charge by an enlisted man or men, receives his discharge, or is dismissed, or is dropped from the rolls, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial in the same manner and to the same extent as if he had not been so discharged, dismissed, or dropped from the rolls.
ARTICLE 97. General Article. - Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline and all conduct of a nature to bring discredit upon the military service shall be taken cognizance of by a general or special or summary court-martial according to the nature and degree of the offense, and punished at the discretion of such court. (Commonwealth Act No. 408 dated September 14, 1938, as amended by P.D. 1166 dated June 24, 1977)
Article 94 is under the jurisdiction of civil courts while Articles 95 to 97, as service-connected crimes or offenses, are under the jurisdiction of the court-martial (See R.A. No. 7055, Approved on June 20, 1991)
[184] On July 12, 2016, the NHCP published its study, entitled "Why Ferdinand E. Marcos Should Not Be Buried At The Libingan Ng Mga Bayani," concluding that Marcos' military record is fraught with myths, factual inconsistencies, and lies. The NHCP study demonstrated that: (I) Marcos lied about receiving U.S. Medals (Distinguished Service Cross, Silver Star, and Order of Purple Heart); (2) his guerilla unit, the Ang Mga Maharlika, was never officially recognized and neither was his leadership of it; (3) U.S. officials did not recognize Marcos' rank promotion from Major in 1944 to Lt. Col. by 1947; and (4) some of Marcos' actions as a soldier were officially called into question by the upper echelons of the U.S. Military, such as his command of the Alias Intelligence Unit (described as "usurpation"), his commissioning of officers (without authority), his abandonment of USAFIP-NL presumably to build in airfield for Gen. Roxas, his collection of money for the airfield (described as "illegal"), and his listing of his name on the roster of different units (called a "malicious criminal act").
[185] Emphasis supplied.
[186] Almario, et al. v. Executive Secretary, et al., supra note 46, at 163.
[187] Vol. IV Record, September 19, 1986, pp. 829-831; See also Bernas, Joaquin G., S.J., The Intent of the 1986 Constitution Writers. 1995. pp. 116-117.
DISSENTING OPINION
SERENO, CJ:
The whole thesis of respondents on the substantive issues lies in the absence of an express prohibition against the burial of former President Marcos; hence, they argue that this Court cannot characterize the current President's decision to have him buried at the Libingan ng mga Bayani (LMB) as one made in grave abuse of discretion.
Nothing can be more wrong, and no view more diminishing of the Judiciary's mandated role under the 1987 Constitution.
If the absence of an express prohibition were to be the primary or sole determinant of the merits of this case, then even the processing clerk of the administrative office supervising the LMB could decide this matter by simply ticking off the appropriate box in a Yes or No question that asks: "Is there an express statute that prohibits a President from burying a former bemedalled soldier or president in the Libingan ng Mga Bayani? If yes, bury. If no, do not bury."
To the contrary, the case can only be decided by deeply and holistically analyzing the extent and implications of the legal phenomenon called the power to exercise presidential discretion, and how it should be measured in this case.
In light of allegations that the decision to bury the late President will run counter to the Constitution, statutory standards and judicial pronouncements, this Court must take a step back in history to understand what the Constitution that it is defending stands for; whether it is in danger of being violated in spirit or in letter; and whether this danger is of such kind and degree that the exercise of presidential discretion should be restrained. This Court must also compare the statutory standards that have been raised and determine whether the course of action proposed by the President would run counter to those standards. This Court must also examine the doctrines and language employed in many of its decisions if it is to guard against heresy directed at the spirit of the Constitution that could undermine not just one doctrine, but perhaps the moral legitimacy of the Court itself.
This is how consequential any statement coming from the Court on this issue could be.
The Court's bounden duty is not only to preserve the Constitution, but also itself.
It has been posited that the Court should not meddle in a political maneuver that the President is compelled to make. Whether it is a maneuver that is animated by the need to maintain credibility in the eyes of important supporters, or whether it is necessary to advance unity in this country, is not a motivation that the President should be accountable for.
Likewise, it has been proposed that this Court should look beyond the past and shift its focus to today's political reality - that the present decision maker is the most powerful and the most popular politician in the republic; that for him to undertake the reforms he has promised requires that he be able to deliver on his promises; that the key to unity in this day and age is to forgive the past and give former President Marcos the honors due the office that he held and the bemedalled soldiering he rendered; and that in any event, the state has enacted many measures not only to compensate Martial Law victims but also to advance the cause of human rights.
At the initial stage of any discussion in this Court, these kinds of arguments are usually met with skepticism by its Members under the express unction of the Constitution as interpreted in the post-Marcos decisions.[1] For the relevant judicial powers provisions of the 1987 Constitution impels the Court to relegate the political question argument, and any semblance of such argument - deference, political wisdom, etc. to a status of non-importance, especially if it fails to satisfy the threshold test. Simply put, that test is whether indeed the question is one addressed to purely political exercises internal to the workings of the legislature;[2] or whether, on the part of the President, there are no legal standards against which his particular action can be evaluated.[3] Indeed, the Court has, in questions of grave national importance, generally exercised judicial review when the allegations of grave abuse of discretion are sufficiently serious.
For the implications of this case goes to the very fulcrum of the powers of Government: the Court must do what is right by correctly balancing the interests that are present before it and thus preserve the stability of Philippine democracy.
If the Court unduly shies away from addressing the principal question of whether a decision to bury the former President would contradict the anti Martial Law and human rights underpinnings and direction of the 1987 Constitution, it would, wittingly or unwittingly, weaken itself by diminishing its role as the protector of the constitutional liberties of our people. It would dissipate its own moral strength and progressively be weakened, unable to promptly speak against actions that mimic the authoritarian past, or issue judicial writs to protect the people from the excesses of government.
This Court must, perforce, painstakingly go through the process of examining whether any claim put forth herein by the parties genuinely undermines the intellectual and moral fiber of the Constitution. And, by instinct, the Court must defend the Constitution and itself.
The 1987 Constitution is the embodiment of the Filipino nations' enduring values, which this Court must zealously protect.
Countless times, this Court has said in so many words that the 1987 Constitution embodies the Filipinos' enduring values.[4] The protection of those values has consequently become the duty of the Court. That this is the legal standard by which to measure whether it has properly comported itself in its constitutional role has been declared in various fashions by the Court itself.
See, for example, how this Court articulated its duty to protect the environment,[5] women,[6] children,[7] labor,[8] the indigenous people,[9] and consistently, those who have been or are in danger of being deprived of their human rights.[10]
Note the power that the Constitution vests in the Court to actively promulgate rules for the protection of human rights, and how the Court in turn described this duty when it promulgated the writs of kalikasan, habeas data, and amparo.[11]
Any conclusion in this case that betrays a lack of enthusiasm on the part of this Court to protect the cherished values of the Constitution would be a judicial calamity. That the Judiciary is designed to be passive relative to the "active" nature of the political departments is a given. But when called upon to discharge its relatively passive role, the post-1986 Supreme Court has shown zealousness in the protection of constitutional rights, a zealousness that has been its hallmark from then up to now. It cannot, in the year 2016, be reticent in asserting this brand of protective activism.
Not everything legally required is written in black and white; the Judges' role is to discern within the penumbra.
As early as 1950, the Civil Code, a creation of the Legislature, has instructed the Judiciary on how to proceed in situations where there is no applicable law or where there is ambiguity in the legislation that seems to apply to the case at hand. The code provides:
Constitution and whether these are relevant to this case. We must pick them out and examine them. The ill-gotten wealth statutes, the remedial human rights legislation - all describe the burden of a nation that must recover from the financial and moral plunder inflicted upon this nation by Marcos, his family and his cronies. We must get our bearings from these guideposts and find out if they instruct us on what must be done with respect to his proposed burial beyond the express and implied condemnation of the wrongs he has committed against the country. The pronouncements of this Court and those of the Sandiganbayan, the legal pleadings and administrative propositions submitted by the Philippine government to international and local tribunals from 1987 to the present a full 29 years from these we must infer an indication of the treatment that should be given to the proposed action of the Government.
That constitutional and statutory interpretation is the bread and butter of adjudication is beyond cavil. From the oldest cases in the Philippine Reports to its latest decision,[12] this Court has been in the business of filling in gaps, interpreting difficult texts, so that "right and justice will prevail." That this is the entire reason for the existence of the Judiciary is self-evident. The end of "judging" is not to do what an administrative clerk can very well do; it is to ensure that "right and justice" will prevail.
Indeed, that judges must interpret statutes as well as declare the existence and protection of individual rights so that "justice and right" might prevail has been the essence of an independent Judiciary. This has been so from the time that the necessity for such independence was first recognized by the 1215 Magna Carta signed by King John; that no man, not even the highest ruler of the land and King John believed in his divine right to rule - can exercise power in such a way that denies the fundamental liberty of any man.
And the modern Judiciary has progressed considerably from that time. The Philippine Judiciary will thus be measured by the universal standard of whether it has discharged its power of review, so that "right and justice will prevail."
There was a time when this Court hid under the "political question" doctrine and evaded constitutional and moral responsibility for the long period of suppression of the people's basic rights. Rightly so, that same Court, after the repudiation by our people of the Marcos regime in 1986, likewise repudiated the acts of the majority of the Court during Martial Law.
This Court cannot afford to retrogress and make the same mistakes as those made by its predecessor courts during Martial Law. To do so would possibly merit the same kind of condemnation that former President Marcos reaped in the fullness of time.
Is the preference for the protection of human rights encoded in the legal DNA of the Constitution?
There is no question that the importance given to human rights is encoded in the very building blocks of the Philippine Constitution. For the Constitution to make sense, the Supreme Court has to recognize that it is programmed to reject government actions that are contrary to the respect for human rights, and to uphold those that do.
The recognition of the hallowed place given to the protection of human rights has been tirelessly repeated by all the Justices who ever walked the halls of Padre Faura. Not one has said that it was unimportant; or that it should be sacrificed at the altar of something else - not economic progress, not even peace not even by those who saw when, why, and how Martial Law began and progressed.
Former Chief Justice Reynato Puno has said:
If it is true that when the Government itself violates the very rights it was established to protect, that violation forfeits its right to govern, then it becomes necessary for this Court to reject any governmental attempt that encourages the degradation of those rights. For this Court guards not only against clear and direct violations of the Constitution, but also against actions that lead this country and its rulers to a slippery slope that threatens to hurl its people to the abyss of helpless unprotectedness.
Contrary to the thesis of my esteemed colleague Justice Diosdado Peralta, the constitutional provisions guaranteeing the protection of human rights are not inert, coming to life only when there is a specific law that would make these rights accessible in specific cases. Each right that is sought to be protected by the Constitution acts as a prohibition against the Government's derogation of those rights. Not all of the rights guaranteed by the Constitution direct the commission of positive acts. Yet these rights can, under the right circumstances, be invoked either singly or collectively to bar public officers from performing certain acts that denigrate those rights.
Summary of the arguments on the substantive issues
Credit must be given to the Solicitor General for immediately agreeing that the Constitution, decisions of this Court, human right statutes and the ill-gotten wealth laws and proceedings - in their totality - condemn the Martial Law regime of the late President Marcos, his family and his cronies.[14] Nevertheless, he posits that all of these are in the past; human rights victims are to be compensated, anyway; and the recovery of ill-gotten wealth would continue, including the pursuit of criminal cases against the Marcos family and their cronies. In other words, while he admits that it would be most difficult to make former President Marcos out as a hero, considering the latter's martial rule and recorded plunder, nevertheless, Marcos was a bemedalled war soldier, and that, in addition, his being a former President who was never dishonorably discharged as a soldier - this fact alone - entitles him to be interred at the LMB. To the Solicitor General, it is non sequitur for human rights victims to claim that the burial of Marcos at a cemetery called Libingan ng mga Bayani will entomb him as a hero and negate the plethora of legal pronouncements that he is not.
The candid admission made by the Solicitor General has made the job of this Court much easier. For the substantive issue now boils down to whether, in fact and in law, the proposed burial of the late President Marcos at the LMB
and thus the proposed burial is unconstitutional and illegal, and the presidential discretion sought to be exercised is being committed in grave abuse of discretion.
On the procedural points, this Opinion fully agrees with the Dissenting Opinion of Justice Alfredo Benjamin S. Caguioa, Jr., but will nevertheless, attempt to augment what has been so ably discussed by Justice Caguioa on the political question defense.
On the substantive points, I fully agree with Justice Caguioa, whose Dissenting Opinion had first been proposed as the main decision. I had prepared this Opinion to elucidate my independent understanding of some of the issues he has covered.
DISCUSSION
I.
THE COURT HAS THE AUTHORITY TO RESOLVE THIS CONTROVERSY UNDER THE EXPANDED CONCEPT OF JUDICIAL REVIEW IN THE 1987 CONSTITUTION.
Respondents contend that the issue in this case is a matter within the discretion of the Executive and must consequently be considered beyond our power of judicial review.
As will be further discussed, this Court cannot refuse to review an issue simply because it is alleged to be a political question. That train has departed a long time ago. Prevailing jurisprudence is a generation apart from the former usefulness of the political question doctrine as a bar to judicial review. The reason for that departure - Philippine Martial Law experience.
A. With the advent of the 1987 Constitution, respondents can no longer utilize the traditional political question doctrine to impede the power of judicial review.
The 1987 Constitution has expanded the concept of judicial review[15] by expressly providing in Section 1, Article VIII, as follows:
The first part of the provision represents the traditional concept of judicial power involving the settlement of conflicting rights as conferred by law. The second part represents the expansion of judicial power to enable the courts of justice to review what was before forbidden territory; that is, the discretion of the political departments of the govemment.[17]
As worded, the new provision vests in the judiciary, particularly in the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature, as well as to declare their acts invalid for lack or excess of jurisdiction, should they be tainted with grave abuse of discretion.[18]
The deliberations of the 1986 Constitutional Commission provide the nature and rationale of this expansion of judicial power. In his Sponsorship Speech, former Chief Justice and Constitutional Commissioner Roberto R. Concepcion stated:
Chief Justice Concepcion had emphatically explained to the 1986 Constitutional Commission that the Supreme Court, which he had been a part of, used the political question theory to avoid reviewing acts of the President during Martial Law, and thus enabled the violation of the rights of the people. In his words:
B. In the exercise of its expanded judicial power, the Court has decided issues that were traditionally considered political questions.
Following the effectivity of the present Constitution, only a select number of issues continue to be recognized by the Court as truly political and thus beyond its power of review. These issues include the executive's determination by the executive of sovereign or diplomatic immunity,[28] its espousal of the claims of its nationals against a foreign government,[29] and the electorate's expression of confidence in an incumbent official.[30]
Apart from these matters, all other acts of government have been the subject of the expanded certiorari jurisdiction of the Court under Article VIII, Section II of the Constitution. As demonstrated in the following cases, the Court has reviewed the acts of the President, the Senate, the House of Representatives, and even of independent bodies such as the electoral tribunals and the Commission on Elections, even for acts that were traditionally considered political.
Acts of the President
The Court in Marcos v. Manglapus[31] ascertained the validity of the President's determination that the return of the Marcoses posed a serious threat to the national interest and welfare, as well as the validity of the prohibition on their return. As previously stated, the political question doctrine was first invoked and then rejected by the Court in that case in view of its expanded power of judicial review under the 1987 Constitution.
The Court then reviewed the constitutionality of a presidential veto in Gonzales v. Macaraig, Jr.[32] It ruled that "the political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court."
The expanded power of judicial review was likewise utilized to examine the grant by the President of clemency in administrative cases;[33] and the President's power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion.[34] The Court even tackled the legitimacy of the Arroyo administration in Estrada v. Desierto.[35] Although it resolved the question as a constitutional issue, the Court clarified that it would not defer its resolution based merely on the political question doctrine.
In David v. Macapagal-Arroyo,[36] it was the validity of then President Arroyo's declaration of national emergency that was assailed before the Court. Significantly, it reviewed the issue even while it recognized that the matter was solely vested in the wisdom of the executive:
Acts of the Legislature
The Court has likewise exercised its expanded power of judicial review in relation to actions of Congress and its related bodies. In Daza v. Singson,[39] it reviewed the manner or legality of the organization of the Commission on Appointments by the House of Representatives. While the review was premised on the fact that the question involved was legal and not political, the Court nevertheless held that "even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question."
In later cases, the Court rejected the political question doctrine and proceeded to look into the following political acts of the legislature: (a) the decision of the House of Representatives to allow the dominant political party to change its representative in the House Electoral Tribunal;[40] (b) the decision of the Senate Blue Ribbon Committee to require the petitioners to testify and produce evidence at its inquiry;[41] (c) the propriety of permitting logging in the country;[42] (d) the validity of the filing of a second impeachment complaint with the House ofRepresentatives;[43] (d) the validity of an investigation conducted in aid of legislation by certain Senate committees;[44] and (e) the decision of the House of Representatives Committee on Justice to take cognizance of two impeachment complaints.[45]
We also exercised our constitutional duty "to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction"[46] on the part of the Senate when it ratified the WTO Agreement and the three Annexes thereof in Tañada v. Angara.[47] The Court firmly emphasized in that case that "it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality, or department of the govemment."[48]
Latest Jurisprudence
The most recent jurisprudence in this area remains in line with the notion of expanded certiorari jurisdiction. The Court has been consistent in its rejection of the political question doctrine as a bar to its expanded power of review.
In 2013, the constitutionality of the pork barrel system was resolved in Belgica v. Ochoa.[49] While the Court clarified that the issue involved legal questions, it nonetheless rejected the invocation of the political question doctrine and upheld the expanded judicial powers of the Court.
In 2014, Araullo v. Aquino III[50] delved into the constitutionality of the Disbursement Acceleration Program of the executive department, again emphasizing the Court's expanded power of review.
In 2015, the Court in The Diocese of Bacolod v. Commission on Elections[51] rejected the application of the political question doctrine. It ruled that the right of the non-candidate petitioners to post the subject tarpaulin in their private property was an exercise of their right to free expression. In rejecting the COMELEC's political question defense, it held that "the concept of a political question.... never precludes judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective right."[52]
A few months after Diocese of Bacolod, the policy of the Judicial and Bar Council (JBC) requiring judges of first-level courts to render five years of service before they could qualify as applicants to second-level courts was assailed as unconstitutional in Villanueva v. Judicial and Bar Council.[53] The Court resolved the issue by stating "since the formulation of guidelines and criteria, including the policy that the petitioner now assails, is necessary and incidental to the exercise of the JBC's constitutional mandate, a determination must be made on whether the JBC has acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing and enforcing the said policy."[54]
Early this year, the Court in Saguisag v. Ochoa, Jr.,[55] determined the constitutionality of the Enhanced Defense Cooperation Agreement between the Republic of the Philippines and the United States of America. The Court affirmed therein its expanded jurisdiction:
It is evident from this long line of cases that the Court can no longer refuse to adjudicate cases on the basis of the "political question doctrine." Whenever issues of a political nature are raised before it, it is the duty of the Court to meet the questions head-on for as long as grave abuse of discretion or constitutionality is seriously involved.
C. The assertion that the burial is intended to implement an election campaign promise does not render the matter non-justiciable.
In view of the above rulings of this Court, it is evident that we must resolve the present controversy, notwithstanding the allegation that the decision of the President to allow the burial is purely political in character. That the order was supposedly founded on an "election campaign promise" does not transform the matter into a political issue that is beyond our power to review.
In fact, in Biraogo v. Philippine Truth Commission of 2010,[59] the Court reviewed the validity of the creation of the Truth Commission, despite its recognition that the act was meant to implement a campaign promise made by then President Benigno Aquino III:
Having established the duty of the Court to review the assailed acts, it is now necessary to examine whether the decision of the President to allow the burial of former President Marcos at the LMB is consistent with the Constitution and the laws.
II.
THE PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND IN VIOLATION OF HIS DUTY TO FAITHFULLY EXECUTE THE LAWS WHEN HE ORDERED THE BURIAL OF MARCOS IN THE LIBINGAN NG MGA BAYANI.
The 1987 Constitution mandates the president to ensure that laws are faithfully executed.[61] This duty of faithful execution circumscribes all the actions of the President as the Chief Executive. It also limits every exercise of his discretion. As this Court declared in Almario v. Executive Secretary:
As a consequence of these principles, any act of the President that contravenes the law, its policies, or any right or duty inferable therefrom must be considered grave abuse of discretion.[66] By the same token, a refusal to execute the laws when necessary must be invalidated in the absence of any statutory justification.[67]
As will be demonstrated, the directive of President Duterte to allow the burial of Marcos at the LMB contravenes the constitution, laws, policies, and jurisprudence. Moreover, the basis for the directive was an invalid regulation issued by the Armed Forces of the Philippines (AFP) in excess of its statutory authority. Considering that the order was made in contravention of law, it cannot be justified by mere reference to the President's residual powers. Such act is tainted with grave abuse of discretion.
A. Statutes and jurisprudence establish a clear policy to condemn the acts of Marcos and what he represents, which effectively prohibits the incumbent President from honoring him through a burial in the Libingan ng mga Bayani.
It is the duty of the Court to give effect not only to the letter of the law, but more importantly to the spirit and the policy that animate it. In Alonzo v. Intermediate Appellate Court,[68] the Court explained:
At its core, the present dispute turns on whether the state, through the President and the AFP, may legally honor Former President Marcos and his family. For that is the essence of the proposed burial at the LMB regardless of whether Marcos is to be buried as a hero, as a soldier or as a former president. A clear understanding of our Constitution, laws, jurisprudence, and our international obligations must lead to the conclusion that the grant of any such honors for the late dictator is prohibited.
Setting aside the validity of AFP Regulations 161-375 for the moment, their blind application to the present case would be an egregious mistake. Considering that various laws and jurisprudence reveal the clear policy of the state to denounce both former President Marcos and the Martial Law regime, it would be inappropriate, if not absurd, for the state to honor his memory.
1. Marcos is perpetuated as a plunderer and a perpetrator of human rights violations in our organic and statutory laws.
As soon as the EDSA Revolution succeeded in 1986, the revolutionary government - installed by the direct exercise of the power of the Filipino people[72] - declared its objective to immediately recover the ill-gotten wealth amassed by Marcos, his family, and his cronies. The importance of this endeavor is evident in the fact that it was specifically identified in the 1986 Provisional Constitution as part of the mandate of the people. Article II, Section 1 of that Constitution states:
Pursuant to this mandate, then President Corazon Aquino issued three executive orders focused entirely on the recovery of the ill-gotten wealth taken by Marccs and his supporters:
All three executive orders affirmed that Marcos, his relatives and supporters had acquired assets and properties through the improper or illegal use of government funds or properties by taking undue advantage of their office, authority, influence, or connections. These acts were proclaimed to have caused "grave damage and prejudice to the Filipino people and the Republic of the Philippines."[79]
The gravity of the offenses committed by former President Marcos and his supporters even prompted the Court to describe the mandate of the PCGG as the recovery of "the tremendous wealth plundered from the people by the past regime in the most execrable thievery perpetrated in all history."[80] The importance of this mandate was further underscored by the sovereign Filipino people when they ratified the 1987 Constitution, including the following provision:
Because of the human rights violations perpetrated by Marcos and his associates, the legislature has decreed that victims are entitled to both monetary[85] and non-monetary[86] reparations to be principally sourced from the funds transferred to the Philippine government by virtue of the Order of the Swiss Federal Supreme Court.[87] Those funds were earlier declared part of the ill-gotten wealth of the Marcos family and forfeited in favor of the Philippine government.
The statements in the above laws were clear indictments by both the revolutionary government and the legislature against the massive plunder and the countless abuses committed by Marcos and his cronies during his tenure as President. These laws not only condemn him as a thief; they equally recognize his criminal liability for the atrocities inflicted on innumerable victims while he was in power.
2. Decisions of this Court have denounced the abuses committed by Marcos during the Martial Law dictatorship.
Apart from earning the condemnation of the legislature, Marcos and the Martial Law regime have likewise received harsh criticism from this Court. In dozens of decisions, it denounced the abuses he had committed; the pernicious effects of his dictatorship; and the grave damage inflicted upon the nation by his corruption, thievery, and contempt for human rights. Foremost among these denunciations are found in are four cases ordering the forfeiture of the ill-gotten wealth he amassed with the assistance of his relatives and cronies.
In Republic v. Sandiganbayan,[88] the Court forfeited a total of USD
658 million in favor of the government. These funds, contained in Swiss deposit accounts in the name of certain foundations, were declared ill-gotten, as they were manifestly out of proportion to the known lawful income of the Marcos family. The Court used the same reasoning in Marcos, Jr. v. Republic[89] to justify the forfeiture of the assets of Arelma, S.A., valued at USD 3,369,975 in 1983.
On the other hand, in Republic v. Estate of Hans Menzi[90] and in Yuchengco v. Sandiganbayan,[91] the Court scrutinized the beneficial ownership of certain shares of Bulletin Publishing Corporation and Philippine Telecommunications Investment Corporation, respectively. The Court concluded in the two cases that the shares, although registered in the names of cronies and nominees of Marcos, were part of the ill-gotten wealth of the dictator and were subject to forfeiture.
It must be emphasized that in the preceding cases, the Court noted the grand schemes employed by Marcos and his supporters to unlawfully amass wealth and to conceal their transgressions. In Yuchengco, it declared:
Marcos was likewise deemed personally responsible for the corruption of the judicial process in Galman v. Sandiganbayan.[99] Affirming the findings of a commission created to receive evidence on the case, the Court stated:
The foregoing pronouncements are considered part of the legal system of the Philippines[106] and must be considered binding, since they are integral parts of final and immutable judgments. It may be presumed that the Court made the above declarations only after a judicious consideration of the evidence and the applicable law. Consequently, those declarations cannot be questioned, reversed, or disregarded without running afoul of the doctrine of immutability of judgment. This doctrine of finality of judgments applies even to the highest court of the land.[107]
The claim that judgment has not been rendered against Marcos for the plunder and the atrocities committed under his regime is belied by the declarations of this very Court. In his Separate Opinion in Olaguer v. Military Commission No. 34,[108] former Chief Justice Claudio Teehankee wrote of our nation's history during the Martial Law regime, and it would be well to recall his words:
It is the obligation of the President to give effect to the pronouncements of the Legislature and the Judiciary as part of his duty to faithfully execute the laws. At the very least, the President cannot authorize an act that runs counter to the letter and the spirit of the law.
In this case, the foregoing statutes and jurisprudence condemning Marcos and his regime effectively prohibit the incumbent President from granting him any form of tribute or honor. The President's discretion in this matter is not unfettered. Contrary to the assertions of respondents, the President cannot arbitrarily and whimsically decide that the acts attributed to Marcos during Martial Law are irrelevant, solely because "he possessed the title to the presidency until his eventual ouster from office."[111]
Indeed, it would be the height of absurdity for the Executive branch to insist on paying tribute to an individual who has been condemned by the two other branches of government as a dictator, a plunderer, and a human rights violator. Whether Marcos is to be buried in the LMB as a hero, soldier, or former President is of little difference. The most important fact is that the burial would accord him honor. For the Court to pretend otherwise is to sustain a delusion, as this controversy would not have arisen if not for this reality.
A state of affairs that would allow Marcos to reap any accolade or tribute from the state using public funds and property would obviously contradict the laws and judicial findings described above. Clearly, there is more than sufficient basis to reject the proposed burial.
B. The AFP does not have the power to determine which persons are qualified for interment in the Libingan.
The argument of respondents that the burial is permitted under AFP Regulations 161-375 is unavailing, as the AFP does not have the authority to select which persons are qualified to be buried in the LMB. For this reason, the enumeration contained in AFP Regulations 161-375 must be deemed invalid.
In Proclamation No. 208,[112] then President Marcos reserved a certain parcel of land in Taguig the proposed site of the LMB for "national shrine purposes." This parcel of land was placed "under the administration" of the National Shrines Commission (NSC). The NSC was later transferred to the Department of National Defense (from the Department of Education) and then abolished through the Integrated Reorganization Plan. The functions of the former NSC were then transferred to the National Historical Institute (NHI).
On 26 January 1977, Presidential Decree No. (P.D.) 1076[113] created the Philippine Veterans Affairs Office (PVAO) under the Department of National Defense. The PVAO was tasked to, among others, "administer, maintain and develop military memorials and battle monuments proclaimed as national shrines." P.D. 1076 also abo1ished the NHI and transferred its functions to the PVAO. The transferred functions pertained to military memorials, including the authority to "administer" the LMB.
The authority of the PVAO to administer, maintain and develop the LMB pertains purely to the management and care of the cemetery. Its power does not extend to the determination of which persons are entitled to be buried there. This authority pertains to Congress, because the power to deal with public property, including the right to specify the purposes for which the property may be used, is legislative in character.[114] Accordingly, the provision in AFP Regulations 161-375 enumerating the persons qualified to be interred in the LMB cannot bind this Court.
At any rate, the AFP Regulations cannot be considered in isolation. As part of the legal system, administrative issuances must be interpreted and implemented in a manner consistent with statutes, jurisprudence, and other rules.[115] In the same manner, the purported discretion of the President to determine the persons who may be interred in the LMB must be considered limited by statutes and judicial decisions.[116]
Since the proposed interment of Marcos in the LMB runs counter to law as explained in the preceding section, AFP Regulations 161-375 must be interpreted to mean that Marcos is specifically disqualified from being buried in that cemetery. Only by adhering to this interpretation can the Court ensure that the issuance is in harmony with other existing laws. Consequently, we cannot choose to implement AFP Regulations 161-375 exclusively while disregarding the statutes and jurisprudence referred to above.
C. The burial cannot be justified by mere reference to the President's residual powers; it is not unfettered, and such power can only be exercised in conformity with the entire Constitution.
During the oral arguments, respondents attempted to justify the decision of the President to allow the burial primarily on the basis of his residual power.[117] Citing Marcos v. Manglapus[118] and Sanlakas v. Executive Secretary,[119] they argued that the President is vested with powers other than those enumerated in the Constitution and statutes, and that these powers are implicit in the duty to safeguard and protect the general welfare.[120]
It must be emphasized that the statement in Marcos v. Manglapus acknowledging the "President's residual power to protect the general welfare of the people" was not unconditional. The Court, in fact, explicitly stated that only acts "not forbidden" by the Constitution or the laws were permitted under this concept:
To reiterate, the President is not above the laws but is, in fact, obliged to obey and execute them.[123] This obligation is even more paramount in this case because of historical considerations and the nature of the norms involved, i.e., peremptory nonns of human rights that are enshrined both in domestic and intetnational law.
III.
TO ALLOW MARCOS TO BE BURIED IN THE LIBINGAN NG MGA BAYANI WOULD VIOLATE INTERNATIONAL HUMAN RIGHTS LAW AS AN INDEPENDENT SOURCE OF STATE OBLIGATIONS, AND WOULD NEGATE THE REMEDIES PROVIDED BY REPUBLIC ACT NO. 10368.
An examination of the vast body of international human rights law establishes a duty on the part of the state to provide the victims of human rights violations during the Marcos regime a range of effective remedies and reparations. This obligation is founded on the state's duty to ensure respect for, and to protect and fulfill those rights.
Allowing the proposed burial of Marcos in the LMB would be a clear violation of the foregoing international law obligations. Consequently, the planned interment must be enjoined in light of Article II, Section II of the Constitution, the established principle of pacta sunt servanda, and the fact that the state has already acknowledged these duties and incorporated them in our domestic laws.
A. Under international law, the Philippines is obligated to provide effective remedies, including holistic reparations, to human rights victims.
The obligation of the Philippines to respect, protect, and fulfill human rights has its legal basis in international agreements and customary international law. As will be discussed, this obligation includes the duty to provide effective remedies, which, in turn, incorporates the grant of holistic reparations to victims of human rights violations.
1. The Philippines is bound to respect, protect, and fulfill human rights under its treaty obligations and customary international law.
As a party to the United Nations (UN) Charter[124] and the International Covenant on Civil and Political Rights (ICCPR),[125] the Philippines is bound to comply in good faith with our obligations therein pursuant to the principle of pacta sunt servanda.[126] These treaties form the normative foundation of the duty of the state to provide effective remedies and reparations to victims of human rights violations.
The promotion, protection and fulfilment of human rights norms are obligations woven throughout the entire UN Charter, beginning with the Preamble which "reaffirm[s] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small."[127] In line with this statement, the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion"[128] was identified as one of the basic purposes of the United Nations.[129] These principles became part of a concrete obligation via Article 56 of the Charter, as states were mandated to take joint and separate action in cooperation with the UN for the achievement of its purposes.[130]
On the other hand, the ICCPR obligates states parties to respect and ensure the human rights of all individuals within its territory. Article 2(1) of this covenant provides:
Further establishing the obligation to respect human rights is the Universal Declaration of Human Rights (UDHR) which defines and codifies human rights norms provided for in the UN Charter. Considered the most important human rights document in the world,[136] the UDHR enumerates the human rights that states are bound to respect, including the right to life, liberty, and security of persons;[137] the prohibition against torture and arbitrary arrest or detention;[138] and the right to freedom from interference with one's privacy, family, home, or correspondence.[139] While not a legally binding treaty, the UDHR is generally considered a codification of the customary international law on human rights.[140] Hence, it binds all nations including the Philippines.
The foregoing instruments clearly create rights that every state is obliged to recognize and respect. To give effect to these entitlements, a violation of protected rights brings about the obligation on the part of the offending state to provide a corresponding remedy.
2. The duty to respect, protect, and fulfill human rights includes the obligation to provide an effective remedy.
The international guarantee of a remedy for human rights violations is well established[141] as one of the bedrock principles of contemporary international human rights law.[142] Ubi ius ibi remedium - "where there is a right, there is a remedy."[143] It is settled that gross human rights violations give rise to a right to remedy for victims, which in turn implies a duty on the part of states to provide the same.[144] This obligation is based on the principle that failure to provide an adequate remedy for violations renders the duty to respect the rights involved meaningless and illusory.[145]
Under Treaties
International human rights law instruments, both global and regional, impose upon states the duty not merely to offer a remedy, but also to ensure that the remedy provided is "effective." This rule is clearly demonstrated in the provisions discussed below.
It is an accepted principle that "[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."[146] This rule is further developed in Article 2 of the ICCPR, which provides:
A similar guarantee of effective remedies is included in the Convention on the Elimination of Racial Discrimination (CERD),[149] while the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture)[150] refers to an equivalent right in the form of redress and compensation.[151] This right to redress was clarified in General Comment No. 3[152] of the UN Committee Against Torture (UNCAT) as a comprehensive reparative concept, which embraces both "effective remedy" and "reparation." Redress "entails restitution, compensation, rehabilitation, satisfaction and guarantees of nonrepetition and refers to the full scope of measures required to redress violations under the Convention."[153] The committee also emphasized that reparative measures must take into account the particular needs of the victims and the gravity of the violations committed against them.[154]
Even regional instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms,[155] the American Convention on Human Rights,[156] and the Protocol to the African Charter,[157] provide for effective remedies for human rights violations.
Under Customary International Law
At the same time, customary international law, as discerned from the law of state responsibility and the progressive development of human rights treaty law, is further solidifying the legal basis of the right to remedy of victims of human rights violations.[158]
The Articles on the Responsibility of States for Internationally Wrongful Acts codified by the International Law Commission (ILC Articles) provides that state responsibility arising from an inte1nationally wrongful act[159] gives rise to the duty to make reparations. Under the ILC Articles, a state held liable for the breach of an obligation may be required to perform the following acts: (1) cessation of the violation,[160] (2) guarantee of non repetition,[161] and (3) full reparation for the injury caused.[162]
Because of the emergence of human rights in international law,[163] the duty to remedy a breach under the ILC Articles is deemed owed not only to the injured state as traditionally imagined, but also to individuals whose human rights have been impaired by the breach under a state's jurisdiction.[164] The right to effective remedies and just reparations for individual victims may be culled from the obligations of the state to cease violations, guarantee non-repetition and make full reparation.[165] This right is further affirmed by Article 33 of the ILC Articles, which declares that the obligation of the state to provide reparations is "without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State."[166]
To further substantiate the existence of a rule of customary international law on this matter, two declarations approved by the UNHRC and the UN General Assembly, respectively, may be cited.
The Declaration on the Protection of All Persons from Enforced Disappearance[167] issued by the UNHRC is a body of principles concerning enforced disappearances, including a provision for the right of victims of acts of enforced disappearance to adequate compensation and complete rehabilitation.[168]
On the other hand, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power[169] offers guidelines in relation to abuse of economic and political power. Through this declaration, the UN General Assembly recognized that millions of people suffer harm as a result of crime and abuse of power, and that these victims are entitled to prompt redress and access to the mechanisms of justice.[170]
These instruments and customary nonns of international human rights law clearly provide for the duty to grant effective remedies to a victim of violations. More than being an essential component of other substantive norms, they create a distinct obligation; hence, the failure to provide effective remedies is an additional and independent violation of internationally recognized human rights.[171]
Defining Effective Remedies
Because an exact definition of an effective remedy is not provided by the foregoing international instruments, it is necessary to examine the interpretations of authorized bodies, as well as the theory and practice of international courts, in order to determine the exact scope of the obligation.[172]
As the succeeding discussion will show, the duty to provide an "effective remedy" does not embrace a singular concept. Rather, that duty embodies a variety of measures more aptly referred to as holistic "reparations."
3. The obligation of the state to provide an effective remedy incorporates the duty to offer holistic reparations.
The right to effective remedy is comprised of two dimensions: procedural and substantive.[173] As explained by the UNCAT in General Comment No. 3:
The right to reparations is therefore but one side of an effective remedy, and is a crucial element in delivering justice to victims.[176] As such, the duty to provide reparations is as binding as the duty to provide effective remedies. This principle is clearly enunciated in international instruments, to the extent that it has achieved a non-derogable status.[177] As the International Criminal Court (ICC) in Prosecutor v. Thomas Lubanga Dyilo (Lubanga Case)[178] ratiocinated:
The term reparation is derived from the word repair. Thus, it is often perceived as making of amends by providing recompense to persons who suffered loss or harm due to gross human rights violations.[180] Within the context of State responsibility, it pertains to a series of actions expressing the State's acknowledgment and acceptance of its responsibility in consequence of the gross violations. Reparation therefore denotes all types of redress for victims of human rights violations,[181] all seeking to make them whole again to the fullest extent possible. The Chorzow Factory case[182] decided by the Permanent Court of International Justice (PCIJ) in 1928 provides the leading definition of the concept:
The most important text dealing with the concept of reparations is the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN Reparations Principles).[188] This text is regarded as the international standard for the provision of reparations around the world.[189]
The UN Reparations Principles was the product of the work of Theodoor Van Boven, who was appointed in 1989 by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, to examine the possibility of developing basic principles and guidelines on remedies for gross violations.[190] Van Boven's work resulted in a landmark final report in 1993, also known as the Van Boven Principles, which declared that human rights violations give rise to a right of reparation for victims.[191] These principles attribute the State's duty to make such reparations to its obligation to afford remedies and ensure respect for human rights and fundamental freedoms.[192]
After 15 years of consideration, the UN General Assembly adopted the UN Reparations Principles on 16 December 2005[193] without a vote. While these principles are argued to be soft law, they are considered binding on states because they elucidate the basic standards applicable to reparations internationally and domestically.[194] The number of states in the UN General Assembly that accepted the resolution by consensus likewise indicates the authoritative weight of the principles, and signifies the status of these rules as part of emerging customary international law.[195]
It must be emphasized that the UN Reparations Principles is not a source of new commitments but rather a statement of existing obligations, as it expresses the content of international law on reparations to ensure that this is respected. This view was explicitly set out in the prefatory statement of the principles:
"Adequate, effective and prompt reparation for harm suffered" is, in fact, a component of the remedies required to be accorded to victims of gross violations of international human rights law, and serious violations of international humanitarian law.[200] Elaborating on the purpose and scope of reparation, the UN Reparations Principles provides:
Although the PCIJ in the Chorzow Factory case[201] declared that the ultimate goal of reparation is restitutio in integrum,[202] or the return of the victims to a situation prior to the unlawful conduct, it is acknowledged that human rights violations are impossible to rectify. As aptly stated by Special Rapporteur Van Boven in his final report:
These statements reflect the underlying idea that the reparations in the UN Reparations Principles are envisioned to extend beyond the pecuniary or material dimension. Rather, holistic reparation is the key. This conclusion is supported by Principles 19 to 23 of the UN Reparations Principles pertaining to the five forms of full and effective reparation:
General Comment No. 3 of the UNCAT emphasizes that "monetary compensation alone may not be sufficient redress for a victim of torture and ill-treatment. The Committee affirms that the provision of only monetary compensation is inadequate for a State party to comply with its obligations under article 14."[208] General Comment No. 31 of the UNHRC likewise notes that "where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations."[209]
The holistic approach was likewise applied by the ICC to the Lubanga Case,[210] in which it held that victims of war crimes, crimes against humanity, and genocide have a fundamental right to receive reparations. The trial chamber observed that reparations "go beyond the notion of punitive justice, towards a solution which is more inclusive, encourages participation and recognizes the need to provide effective remedies for victims."[211] It then explained that reparations must be applied in a broad and flexible manner, so as to allow it to approve the widest possible remedies for violations of the rights of the victims.[212]
In Blazek v. Czech Republic, the UNHRC declared that a remedy is only effective if it results in adequate measures of reparation granted to victims. It further provided that the approach must be holistic so as to put the needs and interests of the victim at the center of the process with the aim of restoring the latter's dignity.[213]
For its part, the IACtHR made it clear that as a principle of international law, every violation of an international obligation that results in harm creates a duty to make adequate reparation. In this respect, the Court ruled that reparation
Lastly, while the ECHR has awarded "just satisfaction" partaking of a pecuniary nature in most of its cases,[216] the intention to provide a holistic approach in providing effective satisfaction can be discerned in its Vagrancy Cases against the Belgian Government:
It is evident from the foregoing discussion that the Philippines is obligated to provide holistic reparations to victims of human rights violations during Martial Law. In fact, as discussed in the previous section, R.A. 10368 acknowledged the "moral and legal obligation [of the State] to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime."[219] As stated in the Explanatory Note of House Bill No. 54 - one of the progenitors of R.A. 10368 - this recognition was one of the main features of the law:
Both monetary[224] and non-monetary[225] forms of reparations were provided for in R.A. 10368. These measures notwithstanding, the members of the Bicameral Conference Committee emphasized the symbolic value of recognition in acknowledgment of the fact that material forms of reparation are not sufficient to atone for the suffering of the victims of atrocities:
Contrary to the implications of the ponencia, the statutes, issuances, and rules enacted by the different branches of government to promote human rights cannot suffice for the purpose of fulfilling the state's obligation to the human rights victims of former President Marcos. These enactments cannot erase the violations committed against these victims, or the failure of the state to give them justice; more important, these enactments cannot negate the further violation of their rights through the proposed burial.
It must be emphasized that the obligation owed by the Philippine government to the victims of human rights violations during Martial Law is distinct from the general obligation to avoid further violations of human rights. As distinct species of obligations, the general duty to prevent further human rights violations cannot offset the right of past victims to full and holistic reparations. Their rights under international law have already been violated; they have already disappeared, been tortured or summarily executed.[228] The government cannot choose to disregard their specific claims and assert that it has fulfilled its obligation to them merely by enacting laws that apply in general to future violations of human rights.
As will be further discussed, victims of human rights violations during the Martial Law regime have a distinct right to holistic reparations, including the grant thereof in symbolic form.
1. Symbolic reparation is an indispensable facet of an adequate reparations regime.
Symbolic forms of reparation are mandated by international law and are considered hallmarks of any reparations regime.[229] Within the framework of the UN Reparations Principles, satisfaction and guarantees of nonrepetition are described as symbolic, because they involve a greater intangible element.[230] On the other hand, restitution, compensation, and rehabilitation are typically financial or material in character. As earlier explained, a comprehensive and holistic program of reparations is expected to contain aspects of both.[231]
Symbols as sources of meaning
The collective dimension of symbolic reparations is the source of their value.[232] Symbolic reparations extend beyond the victim and their families, and represent a demand for recognition, respect, dignity, and hope for a safe future.[233] They assist communities as a whole in dealing with the process of remembering and commemorating the past.[234] In other words, symbolic measures provide moral reparation,[235] which is considered by victims to be of equal or higher importance than material or physical reparation.
The United Nations, in its guidelines for reparation programs for postconflict states, describes the significance of symbolic reparations in this manner:
Moreover, it has been observed that human rights victims want an apology, above all else.[237] They also place a premium on obtaining recognition of the harm done to them.[238] In contrast, financial reparations or damages are considered less important than emotional or symbolic reparations, because the former fail to squarely address a person's need for "dignity, emotional relief, participation in the social polity, or institutional reordering."[239] If given in isolation, monetary reparation may even have a trivializing effect on suffering in certain cultural, social, and political contexts.[240]
Forms of Symbolic Reparation
Because of its peculiar nature, symbolic reparation takes various forms. An examination of the UN Reparations Principles, as well as the decisions of international and regional courts, reveals that different measures have been utilized to satisfy this requirement.
The following have been identified as examples of measures intended to offer satisfaction to victims of atrocities: (a) "verification of the facts and full and public disclosure of the truth";[241] (b) "an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim";[242] (c) "public apology";[243] and (d) "commemorations and tributes to the victims."[244] These methods deal with the emotional, psychological, and symbolic aspects of the suffering of the victims,[245] and are primarily concerned with the restoration of their dignity through an acknowledgment by the state of the harm done.
Guarantees of non-repetition, on the other hand, focus on reform and restructuring initiatives pursuant to the state's commitment to never again engage in the practices that led to human rights violations.[246] The actual steps taken by state institutions represent the guarantees of non-repetition. These steps include "promoting mechanisms for preventing and monitoring social conflicts and their resolution"[247] and "reviewing and reforming laws contributing to or allowing gross violations of international human rights law."[248]
Meanwhile, the ICC in the Lubanga Case considered the conviction and the sentence issued by the Court itself as forms of reparation on account of their significance to the victims and the communities.[249] In turn, the IACtHR - the most progressive court in terms of granting reparations to victims of human rights violations - has ordered the following measures as part of "other forms of reparation": (a) the construction of monuments to commemorate the suffering of victims,[250] (b) the naming of a school after them,[251] (c) the designation of a day of remembrance for them,[252] (d) the conduct by the state of public ceremonies offering apologies in honor of the fallen;[253] (e) the establishment of memorial scholarships;[254] and (f) human rights courses.[255]
Memorials as Symbolic Reparation
In a report on memorialization processes utilized by states transitioning from conflicts or periods of repression, Farida Shaheed, the UN Special Rapporteur in the field of cultural rights, identified memorials as "physical representation[s] or commemorative activities, located in public spaces, that concern specific events regardless of the period of occurrence (wars and conflicts, mass or grave human rights violations), or the persons involved (soldiers, combatants, victims, political leaders or activists for example)."[256]
In recent times, memorials have become principally focused on honoring the victims of human rights atrocities. As Special Rapporteur Shaheed explained, memorials were utilized as a means of "ensuring recognition for the victims, as reparation for mass or grave violations of human rights and as a guarantee of non-recurrence,"[257] as well as a way to combat injustice and promote reconciliation.[258] This trend was followed in post-conflict states, where memorials commemorating victims of human rights violations were regularly established. The Report states:
In the present case, the dispute also involves the creation of a memorial in the form of a burial plot located at the LMB. Instead of commemorating victims, however, the memorial proposes to honor Marcos, the recognized perpetrator of countless human rights violations during the Martial Law regime. The establishment of this memorial would accomplish the exact opposite of what is intended by symbolic reparation, and would consequently violate the obligations of the Philippines under international human rights law.
For reasons previously discussed, the burial of Marcos would be more than a simple matter of the intennent of his remains, because it would involve his victims' right to symbolic reparations. Undoubtedly, to honor the very perpetrator of human rights atrocities would be the direct opposite of the duty of the state to respect, promote, and fulfil human rights.
These conclusions are supported by the opmwn of UN Special Rapporteur Pablo De Greiff in the analogous case of another dictator, General Francisco Franco of Spain, and his burial place - the Valle de los Caidos (Valley of the Fallen).[261] The site, located in Madrid, serves as a monument and a memorial, as it is also the burial ground of almost 34,000 other individuals. The structure, however, is still considered by many as "an exaltation of Francoism"[262] and a reminder of the forced labor of thousands of political prisoners who were compelled to build the structure.[263]
In his Report on the promotion of truth, justice, reparation and guarantees of non-recurrence,[264] Special Rapporteur De Greiff studied the fate of symbols of Francoism in relation to the then newly enacted 2007 Law of Historical Memory.[265] This law dealt with the recognition of victims of human rights violations during the Spanish Civil War and the 40-year regime of General Franco.
Special Rapporteur De Greiff reviewed, in particular, the effects of a provision in the Law of Historical Memory requiring the removal of all memorials related to Franco and the latter's dictatorship. In his report, he welcomed the measures introduced to combat the exaltation of the coup d'etat, the Civil War, and the repression by the Franco dictatorship, particularly through the removal of symbols and monuments.[266] He further noted "majority of inventoried symbols and monuments had been removed, and that the remaining symbols and monuments either required a lengthy administrative procedure or considerable expense, or were subject to protection rules for their historic or artistic value."[267]
As part of the implementation of the Law of Historical Memory, the removal of Valle de los Caidos was proposed because of its ties to General Franco and Francoism. However, because the structure could not be removed without disturbing the burial grounds of other individuals,[268] De Greiff made the following recommendation with respect to the site:
In this case, the victims of human rights violations have expressed their objection to the proposed burial of Marcos in the LMB. They assert that the burial would constitute a state-sanctioned narrative that would confer honor upon him.[272] This, in turn, would subject his human rights victims to the same indignity, hurt, and damage that they have already experienced under his regime.[273]
These opinions must be given paramount consideration by the state in compliance with its duty to provide symbolic reparations to victims of human rights atrocities. For the President to allow the burial in disregard of these views would constitute a clear contravention of international human rights law and would amount to grave abuse of discretion.
C. The burial would run counter to the duty of the state to combat impunity.
As part of their obligation to protect and ensure human rights under international law,[274] states have the duty to combat impunity and hold perpetrators of human rights violations accountable. In fact, the clear nexus between the impunity of perpetrators of gross violations of human rights, and the failure to provide adequate reparation to the victims[275] indicate that the two obligations must go hand in hand.
In his report, Special Rapporteur Theodoor Van Boven concluded that "in many situations where impunity has been sanctioned by the law or where de facto impunity prevails with regard to persons responsible for gross violations of human rights, the victims are effectively barred from seeking and receiving redress and reparation."[276] His conclusion is unsurprising, given the significant role of reparations in ensuring that the perpetrators are held responsible for their actions.
Certainly, states cannot claim to look after the interest of the victims and at the same time endorse a social and political climate where impunity prevails. This incongruity would be tantamount to a violation of the victims' right to effective remedy and reparations. In Van Boven's words, "it is hard to perceive that a system of justice that cares for the rights of victims can remain at the same time indifferent and inert towards the gross misconduct of perpetrators."[277]
The UN Impunity Principles
The primary instrument providing for the duty to combat impunity is the UN Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (UN Impunity Principles).[278] Like the UN Reparations Principles, this document does not impose new obligations, but only frames and emphasizes the existing state obligations under international human rights law. This rule is apparent in the Preamble of the Principles, which cites the UN Charter and the UDHR as the bases for the statement that "the duty of every State under international law to respect and to secure respect for human rights requires that effective measures should be taken to combat impunity."[279]
In these Principles, the UN Human Rights Committee enumerates the acts from which impunity may arise. Principle 1 states:
Impunity and the Right to Reparation
The provision of effective remedies and reparations for victims has been recognized as one of the means to combat impunity. Principles 31 and 34 provide:
Another facet of the fight against impunity involves the duty of a state to preserve the memory of its people. In this regard, the UN Impunity Principles requires states to combat any measure that tends to encourage people to forget or downplay past human rights violations. Principle 3 provides:
In the process of mapping through the vast body of international human rights law, each turn leads to the conclusion that the burial of Marcos in the LMB would be incompatible with the international obligations of the Philippines. For the Court to permit the burial would be to sanction these violations and allow the state to disregard the latter's duty to provide effective remedies to victims of human rights violations, particularly its duty to provide symbolic reparations and to combat impunity.
Incorporation of international law principles in Philippine law
The foregoing principles of international law have been incorporated in Philippine law as part of two domestic statutes intended for the protection of human rights.
As discussed above, R.A. 10368 was enacted pursuant to generally accepted principles of international law. as well as the specific obligations of the Philippines under international human rights laws and conventions.[287] In accordance with these principles, the statute recognized the "heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations" and vowed to "restore the victims' honor and dignity" through the grant of reparations to victims and/or their families.[288]
The same principles were likewise incorporated in R.A. 9851,[289] a statute penalizing crimes against international humanitarian law, genocide, and other crimes against humanity. In providing remedies for offenses under this law, courts were specifically mandated to follow international principles relating to reparations for victims, including restitution, compensation, and rehabilitation.[290] The statute also enumerated the sources of international law that may guide the courts in the application and interpretation of the statute. These sources include international instruments, decisions of international courts and tribunals, as well as writings of most highly qualified publicists and authoritative commentaries.
The obligation of the state to provide holistic reparations for victims of human rights violations is, therefore, enshrined in both international and domestic laws. This obligation includes the responsibility to provide victims with reparations - both financial and symbolic - in recognition of their suffering and heroism. The grant of reparations should likewise go hand in hand with the duty of the state to combat impunity by holding perpetrators of human rights violations accountable.
As previously discussed, the proposed burial of former President Marcos in the LMB contravenes these principles, because it would honor the identified perpetrator of human rights violations. As such, it would accomplish the exact opposite of what is intended to be accomplished by international and domestic principles on reparations, i.e., to recognize and honor the sufferings of victims; and to make amends for the physical, emotional and psychological harm they have sustained. The burial would also perpetuate a climate of impunity, as it would effectively disregard the human rights violations perpetrated by Marcos and permit the state to honor him despite his transgressions.
Clearly, the President cannot sanction the burial without going against domestic and international principles, as well as his solemn oath to faithfully execute the law.
IV.
PUBLIC FUNDS AND PROPERTY CANNOT BE USED FOR THE BURIAL AS IT SERVES NO LEGITIMATE PUBLIC PURPOSE.
On a final note, I must point out that the discretion of the President in this case is not unlimited, as argued by respondents. Because their proposal involves public funds and property, certain rules must be complied with.
Respondents propose the use of a portion of the LMB, a national cemetery owned by the government, for the interment of Marcos. They likewise intend to use money from the government coffers for the preparation and maintenance of the gravesite, as well as for military honors to be accorded to the deceased by the AFP.
Considering that public resources would be used for the interment, it is necessary for this Court to determine if the planned expenditures are for a legitimate public purpose. The reason is simple public property, including public funds, belongs to the people.[291] Hence, it is the duty of the government to ensure the prudent use of these resources at all times to prevent dissipation and waste.[292] As a necessary corollary to these principles, it is settled that public property and funds may only be used for public purposes.[293]
This Court has explained the nature and the meaning of the term "public purpose" in the context of public expenditures in several cases. It has declared that the term includes not only activities that will benefit the community as a body and are related to the traditional functions of government,[294] but also those designed to promote social justice, general welfare and the common good.[295] This broad understanding of the public purpose requirement, however, does not authorize the use of public funds and property for unmistakably personal and political motives.[296]
Ultimately, the validity of a public expenditure depends on the essential character of its direct object. In Albon v. Fernando,[297] the Court explained:
As will be explained in further detail, the proposed burial would promote only the private interest of the Marcos family. Significantly, respondents have failed to prove that any sort of public purpose would be served by the planned interment; in fact, the event would contravene the public purposes of the LMB. Consequently, the intended public expenditure cannot be allowed.
A. The burial would contravene the public purpose of the Libingan ng mga Bayani.
The government in this case proposes to shoulder the expenses for the burial of Marcos in the LMB, a military cemetery maintained on public property and a declared national shrine. The expenses contemplated are comprised of the cost of a plot inside a military cemetery, the maintenance expenses for the gravesite, and the cost of military honors and ceremonies.[299]
Generally, burial expenses are not borne by the government because interments are customarily private affairs. However, as exceptions to the foregoing rule, public expenditure is allowed in the case of cemeteries that serve certain public purposes, for instance: (a) burial grounds set aside for the indigent in the name of social justice;[300] and (b) cemeteries reserved for individuals deemed worthy of honor and reverence, i.e., the nation's war dead, soldiers or dignitaries, of the government.[301] The LMB belongs to this second exception.
Formerly known as the Republic Memorial Cemetery, the LMB was designated by former President Ramon M. Magsaysay as the national cemetery for the nation's war dead in 1954. Through Executive Order No. 77,[302] he ordered that the remains of the war dead interred at the Bataan Memorial Cemetery and other places be transferred to the LMB to accord honor to dead war heroes; improve the accessibility of the burial grounds to relatives of the deceased; and consolidate the expenses of maintenance and upkeep of military cemeteries. He thereafter issued Proclamation No. 86,[303] which renamed the cemetery to "Libingan ng mga Bayani," because the former name was "not symbolic of the cause for which our soldiers have died, and does not truly express the nation's esteem and reverence for her war dead."
It is therefore evident that the LMB is no ordinary cemetery, but a burial ground established on public property to honor the nation's war dead and fallen soldiers. Further, the designation of the cemetery as a national shrine confirms its sacred character and main purpose, that is, to serve as a symbol for the community and to encourage remembrance of the honor and valor of great Filipinos.[304] Respondents themselves acknowledged this fact when they argued that the LMB implements a public purpose because it is a military shrine and a military memorial.[305]
To allow the LMB to fulfill the foregoing purposes, it has been and continues to be the recipient of public funds and property. Not only was the cemetery established on land owned by the government, public funds are also being utilized for the cost of maintenance and other expenses. The use of these resources is justified because of the public purpose of the site. As a necessary consequence of this principle, an expenditure that does not further this public purpose is invalid.
Applying the foregoing standards, the proposed expenditures for the burial of Marcos in the LMB must be considered invalid. As earlier discussed, Marcos was an ousted dictator and disgraced president. Consequently, he is clearly not worthy of commendation from the state and no public purpose would be served by his interment therein. In fact, his burial in the LMB would result in a contravention of the public purpose of the site as it would no longer be a sacred symbol of honor and valor.
B. Respondents have not explained how the burial would serve the avowed policy of national unity and healing.
Considering that the public purpose of the LMB would not be served by the intennent, we must now examine the other public purpose supposedly fulfilled by the proposal. According to respondents, that purpose pertains to national unity and healing. In their Comment, they contend:
Furthermore, as previously discussed, it is the essential character of the direct object of public expenditure that determines its validity,[309] and not the incidental advantage derived from it by the community. Hence, assuming for the sake of argument that the burial would bear an incidental benefit of promoting unity and healing, this supposed benefit would not erase the reality that the interment would principally be for the promotion of the personal interest of former President Marcos and his family.
C. The burial would promote only the private interest of the Marcos family.
It is clear from the foregoing discussion that the burial would ultimately benefit only the Marcos family. No general advantage is derived by the public from the interment; as it stands, divisiveness instead of unity has resulted from the plan.
The circumstances surrounding the order of the President to allow the burial likewise reveal the political color behind the decision. In their Comment, respondents admit that the President ordered the burial to fulfill a promise made during his presidential campaign.[310] It must be pointed out, however, that the President made that pledge not at any random location, but while campaigning in Ilocos Norte,[311] a known stronghold of the Marcos family. During the oral arguments held in this case, it was also revealed that the preparations for the burial were prompted by a letter sent by the Marcos heirs to Secretary Lorenzana, urging him to issue the orders required for the interment at the earliest opportunity.[312]
Needless to state, the private interest of the Marcos family and the personal objective of the President to fulfill a pledge to his political allies will not justify the proposed public expenditure for the burial.
Indeed, it is completely unseemly for the Marcos family to expect the Filipino people to bear the financial and emotional cost of burying the condemned former President even while this country has yet to recover all the ill-gotten wealth that he, his family, and unrepentant cronies continue to deny them.[313] It is wrong for this Government and the Marcos family to refer human rights victims to the financial reparation provided by Republic Act 10386 as recompense, which moneys will come, not from the private wealth of the Marcos family, but from the money they illegally acquired while in office, and on which the Philippine state spent fortunes to recover. Every Filipino continues to suffer because of the billions of unwarranted public debt incurred by the country under the Marcos leadership;[314] and every Filipino will incur more expenses, no matter how modest, for the proposed burial. No situation can be more ironic indeed.
EPILOGUE
Stripped to its core, this case involves an order by the President to bury a dictator - one declared to have perpetrated human rights violations and plundered the wealth of the nation - with all the trappings of a hero's burial. It may not be an express declaration, as respondents themselves concede that the President does not have the power to declare any individual a hero, but it is a pronouncement of heroism nevertheless. It is far from being an empty statement bereft of significance. As respondents themselves recognize, the nature of the office held by the President provides him the opportunity to "profoundly influence the public discourse x x x by the mere expediency of taking a stand on the issues of the day."[315] Clearly, the order of the President to allow the burial is, at the very least, a declaration that Marcos is worthy of a grave at a cemetery reserved for war heroes, despite the objections of countless victims of human rights violations during the Martial Law regime. It is an executive pronouncement that his memory may be preserved and maintained using public funds.
Justice Isagani Cruz once stated: "liberty is not a gift of the government but the rights of the govemed."[316] Throughout his regime, Marcos trampled upon this statement by his own acts and those of his subordinates, in a stampede wrought by the fervor to supposedly protect the nation from lawless elements. It pitted Filipino against Filipino, masking each face in shades of black or white and sowing fear and terror whilst reaping a harvest of public treasure. The nation was silenced. But people like petitioners persevered, keeping in their hearts the essence of Justice Cruz's words. They fought, and the people ultimately rose and won back the freedom we all now enjoy. The statement continues:
The Court cannot order that a particular event be remembered in a particular way, but it can negate an act that whimsically ignores legal truths. It can invalidate the arbitrary distillation of the nation's collective memory into politically convenient snippets and moments of alleged glory. The Court is empowered to do justice, and justice in this case means preventing a whitewash of the sins of Marcos against the Filipino people.
The burial of Marcos in the earth from whence he came is his right, despite all that he did. However, his burial in the grave of heroes on the impulse of one man would continue the desecration of other citizens' rights, a chilling legacy of the Marcos regime that curiously survives to this very day, long after the death of the dictator.
Respondents may deny the implications of their actions today,[319] but the symbolism of the burial will outlive even their most emphatic refutations. Long after the clarifications made by this administration have been forgotten, the gravesite at the LMB will remain. That is the peculiar power of symbols in the public landscape they are not only carriers of meaning, but are repositories of public memory and ultimately, history.
For the Court to pretend that the present dispute is a simple question of the entitlement of a soldier to a military burial is to take a regrettably myopic view of the controversy. It would be to disregard historical truths and legal principles that persist after death. As important, it would be to degrade the state's duty to recognize the pain of countless victims of Marcos and Martial Law. Regardless of the promised national unity that the proposed burial will bring, I cannot, in good conscience, support such an expedient and shortsighted view of Philippine history.
WHEREFORE, I vote to GRANT the Petitions.
[1] Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016; Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003); Estrada v. Desierto, 406 Phil. 1 (2001); Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792; Bondoc v. Pineda, 278 Phil. 784 (1991); Marcos v. Manglapus, 258 Phil. 479 (1989).
[2] Arroyo v. De Venecia, 343 Phil. 42 (1997).
[3] David v. Macapagal-Arroyo, 522 Phil. 705 (2006); Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000); Llamas v. Orbos, 279 Phil. 920 (1991).
[4] 1987 Constitution, Preamble. Also see Concurring Opinion of Chief Justice Sereno in Poe-Llamanzares v. COMELEC, G.R. Nos. 221697 & 221698-700, 8 March 2016.
[5] Resident Marine Mammals of the Protected Seascape Tanon Strait, v. Secretary Angelo Reyes, G.R. No. 180771, 21 April 2015. West Tower Condominium Corp. v. First Phil. Industrial Corp., G.R. No. 194239, 16 June 2015; Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, 595 Phil. 305 (2008); Oposa v. Factoran, Jr., supra note 1.
[6] Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, 204934, 204957, 204988, 205003, 205043, 205138, 205478, 205491, 205720, 206355, 207111, 207172, 207563, 8 April 2014; Garcia v. Drilon, 712 Phil. 44 (2013); Philippine Telegraph and Telephone Co. v. National Labor Relations Commission, 338 Phil. 1093 (1997).
[7] Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700, 8 March 2016; Dela Cruz v. Gracia, 612 Phil. 167 (2009); People v. Abadies, 433 Phil. 814 (2002).
[8] Seagull and Maritime Corp. v. Dee, 548 Phil. 660 (2007); Lopez v. Metropolitan Waterworks and Sewerage System, 501 Phil. 115 (2005).
[9] La Bugal-B'laan Tribal Association, Inc. v. Ramos, 486 Phil. 754 (2004).
[10] The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728,21 January 2015, 747 SCRA 1; Land Bank of the Philippines v. Heirs of Angel T. Domingo, G.R. No. 168533, 4 February 2008, 543 SCRA 627; Guazon v. De Villa, 260 Phil. 673 (1990).
[11] See Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, 13 April 2010; The Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, 25 September 2007; Rule on the Writ of Habeas Data, A.M. No. 08-1-16-SC, 22 January 2008.
[12] See, among others, Vda. de Padilla v. Vda. de Padilla, 74 Phil. 377 (1943); Republic v. de los Angeles, 148-B Phil. 902 (1971); Floresca v. Philex Mining Corp., 220 Phil. 533 (1985); Salvacion v. Central Bank of the Philippines, 343 Phil. 539 (1997); Concurring Opinion of Chief Justice Maria Lourdes P.A. Sereno in Corpuz v. People, 734 Phil. 353 (2014) citing the Report of the Code Commission, p. 78; Social Weather Stations, Inc. v. COMELEC, G.R. No. 208062, 7 April 2015; Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, 10 November 2018; Poe-Llamanzares v. Commission on Elections, supra note 7.
[13] Concurring Opinion of Chief Justice Puno in Republic v. Sandiganbayan, 454 Phil. 504 (2003).
[14] Consolidated Comment dated 22 August 2016, p. 62; Oral Arguments Transcript of Stenographic Notes [hereinafter TSN], 7 September 2016, p. 243; Memorandum dated 27 September 2016, pp. 134-136.
[15] Integrated Bar of the Philippines v. Zamora, supra note 3.
[16] Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003).
[17] Oposa v. Factoran, Jr., supra note 1.
[18] Id.
[19] I RECORD of the 1986 Constitutional Commission 434-436 (1986).
[20] Estrada v. Desierto, supra note 1.
[21] Marcos v. Manglapus, supra note 1.
[22] Supra note 20, at 506-507.
[23] Estrada v. Desierto, supra note 1.
[24] Id. at 42-43.
[25] Francisco, Jr. v. House of Representatives, supra note 16, at 910.
[26] Araullo v. Aquino III, G.R. Nos. 209287, 209135, 209136, 209155, 209164, 209260, 209442, 209517, 209569, 1 July 2014, 728 SCRA 1, 74.
[27] Supra note 19.
[28] Department of Foreign Affairs v. National Labor Relations Commission, 330 Phil. 573 (1996); Callado v. International Rice Research Institute, 314 Phil. 46 (1995); Lasco v. United Nations Revolving Fund for Natural Resources Exploration, 311 Phil. 795 (1995); The Holy See v. Rosario, Jr., G.R. No. 101949, 1 December 1994, 238 SCRA 524; International Catholic Migration Commission v. Calleja, G.R. No. 85750, 89331, 268 Phil. 134 ( 1990).
[29] Vinuya v. Romulo, 633 Phil. 538 (2010).
[30] Evardone v. Commission on Elections, G.R. No. 94010, 95063, 2 December 1991, 204 SCRA 464.
[31] Marcos v. Manglapus, supra note 121.
[32] Gonzales v. Macaraig, Jr., 269 Phil. 472 ( 1990).
[33] Llamas v. Orbos, 279 Phil. 920 (1991).
[34] Integrated Bar of the Philippines v. Zamora, supra note 3.
[35] Estrada v. Desierto, supra note 1.
[36] David v. Macapagal-Arroyo, 522 Phil. 705 (2006).
[37] Id. at 766.
[38] Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374 (2010).
[39] Daza v. Singson, 259 Phil. 980 (1989).
[40] Bondoc v. Pineda, 278 Phil. 784 (1991).
[41] Bengzon Jr. v. Senate Blue Ribbon Committee, G.R. No. 89914, 20 November 1991.
[42] In Oposa v. Factoran, Jr., supra note 1, the Court declared that "the political question doctrine is no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review."
[43] Francisco, Jr. v. House of Representatives, supra note 16.
[44] Neri v. Senate Committee on Accountability of Public Officers and Investigations, 573 Phil. 554 (2008).
[45] Gutierrez v. House of Representatives Committee on Justice, 658 Phil. 322 (2011). We explained therein that "the Court is not asserting its ascendancy over the Legislature in this instance, but simply upholding the supremacy of the Constitution as the repository of the sovereign will."
[46] Tañada v. Angara, 338 Phil. 546 (1997), at 575.
[47] Id.
[48] Id.
[49] Belgica v. Ochoa, 721 Phil. 416 (2013).
[50] Araullo v. Aquino III, supra note 26.
[51] The Diocese of Bacolod v. Commission on Elections, supra note 10.
[52] Id. at 53.
[53] Villanueva v. Judicial and Bar Council, G.R. No. 211833, 7 April 2015, 755 SCRA 182.
[54] Id. at 197.
[55] Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016.
[56] Id.
[57] See Pimentel, Jr. v. Senate Committee on the Whole, 660 Phil. 202 (2011); Spouses dela Paz v. Senate Committee on Foreign Relations, 598 Phil. 981 (2009); Garcia v. Executive Secretary, 602 Phil. 64 (2009); Sanlakas v. Reyes, 466 Phil. 482 (2004); Eastern Assurance & Surety Corp. v. LTFRB, 459 Phil. 395 (2003); Lim v. Executive Secretary, 430 Phil. 555 (2002); Bagatsing v. Committee on Privatization, 316 Phil. 404 (1995); Co v. House of Representatives Electoral Tribunal, 216 Phil. 758 (1991); Garcia v. Executive Secretary, 281 Phil. 572 (1991).
[58] Defensor-Santiago v. Guingona, Jr., 359 Phil. 276 (1998).
[59] Supra note 38.
[60] Id. at 428.
[61] 1987 CONSTITUTION, Article VII, Section 17.
[62] 714 Phil. 127, 163-164 (2013).
[63] See Concurring Opinion of Associate Justice Arturo Brion, Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374 (2010).
[64] 135 U.S. 1, pp. 82-84.
[65] Id. at 64.
[66] In Carpio-Morales v. Court of Appeals, supra note 12, the Court defined grave abuse of discretion in this manner:
[68] 234 Phil. 267 (1986).
[69] Id. at 272-273.
[70] G.R. No. 208062, 7 April 2015, 755 SCRA 124.
[71] Id. at 167.
[72] Provisional Constitution, First Whereas Clause; Also see In re: Puno, A.M. No. 90-11-2697-CA (Resolution), 29 June 1992.
[73] EXECUTIVE ORDER NO. 1, Creating the Presidential Commission on Good Government (1987).
[74] Id., Section 2(a).
[75] EXECUTIVE ORDER NO. 2, Regarding the fund, moneys, assets, and properties illegally acquired or misappropriated by former President Ferdinand Marcos, Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees (1987).
[76] Id. First Whereas Clause.
[77] Id.
[78] EXECUTIVE ORDER NO. 14, Defining the jurisdiction over cases involving the ill-gotten wealth of former President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, members of their immediate family, close relatives, subordinates, close and/or business associates, dummies, agents and nominees.
[79] EXECUTIVE ORDER NO. 2, supra note 75, First Whereas Clause.
[80] PCGG v. Peña, 243 Phil. 93 (1998).
[81] Section 3 of RA 10368 defines a "human rights violation" as "any act or omission committed during the period from September 21, 1972 to February 25, 1986 by persons acting in an official capacity and/or agents of the State."
[82] The definition of human rights violations in Section 3 of R.A. 10348 includes: any search, arrest and/or detention without a valid search warrant or warrant of arrest issued by a civilian court of law, including any warrantless arrest or detention carried out pursuant to the declaration of Martial Law by former President Ferdinand E. Marcos as well as any arrest, detention or deprivation of liberty carried out during the covered period on the basis of an "Arrest, Search and Seizure Order (ASSO)," a "Presidential Commitment Order (PCO)" or a "Preventive Detention Action (PDA)" and such other similar executive issuances as defined by decrees of former President Ferdinand E. Marcos, or in any manner that the arrest, detention or deprivation of liberty was effected.
[83] A human rights violation under Section 3(b)(5) of R.A. 10368 includes "[a]ny act of force, intimidation or deceit causing unjust or illegal takeover of a business, confiscation of property, detention of owner/s and or their families, deprivation of livelihood of a person by agents of the State, including those caused by Ferdinand E. Marcos, his spouse Imelda R. Marcos, their immediate relatives by consanguinity or affinity, as well as those persons considered as among their close relatives, associates, cronies and subordinates under Executive Order No. 1, issued on February 28, 1986 by then President Corazon C. Aquino in the exercise of her legislative powers under the Freedom Constitution."
[84] Under Section 3(d) of R.A. 10368, human rights violations may be compensation if they were committed by "Persons Acting in an Official Capacity and/or Agents of the State." This includes former President Ferdinand E. Marcos, spouse Imelda R. Marcos, their immediate relatives by consanguinity or affinity, as well as their close relatives, associates, cronies and subordinates.
[85] R.A. 10368, Section 4 states:
[89] 686 Phil. 980 (2012).
[90] 512 Phil. 425 (2005).
[91] 515 Phil. 1 (2006).
[92] Id. at 48-49.
[93] See Contado v. Tan, 243 Phil. 546 (1988).
[94] 495 Phil. 372 (2005).
[95] Id. at 372.
[96] 335 Phil. 795 (1997).
[97] 664 Phil. 16 (2011).
[98] 545 Phil. 21 (2007).
[99] 228 Phil. 42 (1986).
[100] Id. at 71-83.
[101] See Heirs of Licaros v. Sandiganbayan, 483 Phil. 510, 524 (2004).
[102] See Republic v. Tuvera, supra note 98, p. 61.
[103] See PCGG v. Peña, 243 Phil. 93, 115 (1988).
[104] Mijares v. Ranada, supra note 94, p. 372.
[105] Marcos v. Manglapus, supra note 1, at 492.
[106] CIVIL CODE, Article 8.
[107] Government Service Insurance System v. Group Management Corp., 666 Phil. 277 (2011).
[108] 234 Phil. 144 (1987).
[109] Id. at 173-177.
[110] Id. at 177.
[111] Public Respondents' Memorandum with Prayer to Lift Status Quo Ante Order, (hereinafter Public Respondents' Memorandum), p. 106.
[112] PROCLAMATION NO. 208, Excluding from the operation of Proclamation No. 423, dated July 12, 1957, which established the Fort Bonifacio Military Reservation a certain portion of the land embraced therein situated in the Municipality of Taguig, Province of Rizal, and reserving the same for national shrine purposes, 28 May 1967.
[113] PRESIDENTIAL DECREE NO. 1076, Amending Part XII (Education) and Part XIX (National Security) of the Integrated Reorganization Plan, 26 January 1977.
[114] Rabuco v. Villegas, 154 Phil. 615 (1974).
[115] Civil Code, Article 7.
[116] See Almario v. Executive Secretary, 714 Phil. 127 (2013).
[117] TSN, 7 September 2016, pp. 11-12.
[118] 258 Phil. 479 (2008).
[119] Sanlakas v. Reyes, 466 Phil. 482 (2004).
[120] TSN, 7 September 2016, p. 11.
[121] Supra note 105, p. 504.
[122] Id. at 503.
[123] Supra note 62.
[124] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [hereinafter UN Charter].
[125] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, Vol. 999, p. 171 [hereinafter ICCPR].
[126] In Government of the United States of America v. Purganan, G.R. No. 148571, 17 December 2002, the Court explained the principle of pacta sunt servanda as follows:
[128] Id., Art. 55.
[129] Id.
[130] Id., Art. 56.
[131] Pursuant to Article 40 of the ICCPR, the UN HRC is described as the official body that monitors compliance with the ICCPR.
[132] UN Human Rights Committee (HRC), General Comment No. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 [hereinafter UNHRC General Comment No. 31].
[133] Id., par. 2.
[134] Case concerning the Barcelona Traction Light and Power Company, Ltd. (Second Phase, Belgium v. Spain), I.C.J. Reports 1970, p. 32 [hereinafter Barcelona Traction Case].
[135] Id.
[136] Hurst Hannum, The Universal Declaration of Human Rights, in THE ESSENTIALS OF HUMAN RIGHTS 351 (Rhona K.M. Smith and Christian van den Anker eds., 2005).
[137] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Art. 3 [hereinafter UDHR].
[138] Id., Arts. 4, 5, 9.
[139] Id., Art. 12.
[140] Hannum, supra note 136.
[141] DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW, 37 (1999 ed.).
[142] Sonja B. Starr, Rethinking "Effective Remedies:" Remedial Deterrence in International Courts, 83 N.Y.U. L. REV. 693, 698 (2008), p. 693.
[143] Id.; Black's Law Dictionary 6th edn. (1990), 1120.
[144] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, RULE-OF-LAW TOOLS FOR POST-CONFLICT STATES: REPARATIONS PROGRAMMES, at 7, U.N. Sales No. E.08.XIV.3 (2008); SHELTON, supra note 141, at 15.
[145] DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW, 61 (2015 ed.).
[146] UDHR, supra note 137, art. 8.
[147] ICCPR, supra note 125, Art. 2.
[148] In General Comment No. 3 l, supra note 132, the UNHRC explains:
[151] Article 14 of the CAT states:
[153] Id., par. 2.
[154] General Comment No. 3, par. 6 states:
[159] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Chp.IV.E.1, Art. 1 [hereinafter ILC Articles].
[160] ILC Articles, Art. 30(a).
[161] Id., Art. 30(b).
[162] Id., Art. 31(a).
[163] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, supra note 144, at 6.
[164] UN Sub-Commission on the Promotion and Protection of Human Rights, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: final report / submitted by Theo van Boven, Special Rapporteur., 2 July 1993, E/CN.4/Sub.2/1993/8, paragraphs 43-46 [hereinafter Van Boven Report]; See also Antoine Buyse, Lost and regained? Restitution as a remedy for human rights violations in the context of international law, 68 HEIDELBERG J. OF I. L. 129, 134-135 (2008), wherein the author posits as follows: "The ICJ in its Advisory Opinion Reparation for Injuries Suffered in the Service of the United Nations recognized that a nonstate entity - the international organization of the United Nations had the right to claim reparation at the international level from a state. Extending this, one could argue that if other new subjects of international law arise, they too can claim. Individuals have been recognized as being such subjects of international law. To the extent that they are accorded rights under international law, they should therefore have the possibility to claim."
[165] Van Boven Report, supra note 164, par. 45.
[166] ILC Articles, supra note 159, art. 33(2).
[167] UN Commission on Human Rights, Declaration on the Protection of All Persons from Enforced Disappearance, 28 February 1992, E/CN.4/RES/1992/29.
[168] Article 19 of the Declaration provides:
[170] The Declaration of Basic Principles of Justice for Victims of Crime (par. 4) states:
[172] Id.
[173] Diana Contreras-Garduño, Defining Beneficiaries of Collective Reparations: the Experience of the IACtHR, 4 AMSTERDAM LAW FORUM, 43 (2012).
[174] General Comment No. 3, supra note 152, par. 5.
[175] Contreras-Garduño, supra note 173, at 43.
[176] Id.
[177] UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPRJC/21/Rev.1/Add.11, par. 14 [hereinafter General Comment No. 29] which states: "Article 2, paragraph 3, of the Covenant (ICCPR) requires a State party to the Covenant to provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective."
[178] The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, 14 May 2007.
[179] Id., par. 185.
[180] Jeremy Sarkin, Providing reparations in Uganda: Substantive recommendations for implementing reparations in the aftermath of the conflicts that occurred over the last few decades, 14 AHRLJ 526, 534-535 (2014).
[181] Van Boven Report, supra note 164, at 7.
[182] Factory At Chorzow, Germany v Poland, Judgment, Claim for Indemnity, Merits, Judgment No 13, (1928) PCIJ Series A No 17, ICGJ 255 (PCIJ 1928), 13 September 1928.
[183] Id., par. 124.
[184] Sarkin, supra note 180, at 528.
[185] Organization of American States (OAS) Inter-American Commission on Human Rights, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and First Judicial Proceedings, OEA/Ser.L/V/II, Doc. 3, 2 October 2007 [hereinafter Report on the Implementation of the Justice and Peace Law].
[186] Id., par. 98.
[187] Id., par. 110 (6).
[188] UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law: resolution / adopted by the General Assembly, 21 March 2006, A/RES/60/147 [hereinafter UN Reparations Principles].
[189] Sarkin, supra note 180, at 536.
[190] United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution 1989/13 of 31 August 1989.
[191] Van Boven Report, supra note 164, at par. 137, General Principle No.1.
[192] Id., par. 137, General Principle No.2.
[193] UN General Assembly Resolution 60/147, 16 December 2005.
[194] Sarkin, supra note 180, at 546.
[195] Buyse, supra note 164, at 140.
[196] UN Reparations Principles, supra note 188, at 3.
[197] The Preamble of the UN Reparations Principles states in relevant part:
II. Scope of the obligation
[201] Supra note 182.
[202] Contreras-Garduño, supra note 173, at 43.
[203] Van Boven Report, supra note 164, par. 131.
[204] I/A Court H.R., Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of 18 September 2003. Series C No. 100.
[205] Id., Judge A.A. Cancado Trindade (Separate Opinion), Sec. 25.
[206] Sarkin, supra note 180, at 542.
[207] Contreras-Garduño, supra note 173, at 41.
[208] General Comment No. 3, supra note 152, par. 9.
[209] UNHRC General Comment No. 31, supra note 132, par. 16.
[210] The Prosecutor v. Thomas Lubanga Dyilo, supra note 178.
[211] Id., par. 177.
[212] Id., par. 180.
[213] UN Human Rights Committee, Blazek et al. v. The Czech Republic, Communication No. 847/1999, CCPR/C/72/D/857/1999, 12 July 2001, par. 7.
[214] I/A Court H.R., Case of Gonzales Lluy et al. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 01, 2015. Series C No. 298.; Cf Case of the Las Dos Erres Massacre v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of November 24, 2009. Series C No. 211, para 226, and Case of Cruz Sanchez et al. v. Peru, para. 452.
[215] Contreras-Garduño, supra note 173, at 45, citing C. Medina-Quiroga, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System, 1988, p. 369.
[216] Van Boven Report, supra note 164, par. 81 citing the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 50.
[217] Van Boven Report, supra note 164, par. 82, citing European Court of Human Rights, De Wilde, Ooms and Versijp Cases ("Vagrancy" Cases), Judgment of 10 March 1972 (article 50), Series A, vol. 14, par. 16.
[218] Id., par. 20.
[219] RA 10368, Section 2.
[220] Explanatory Note of House Bill 54, introduced by Rep. Lorenzo R. Tañada, III, 15th Congress, First Regular Session.
[221] MDL No. 840, CA No. 86-0390, Human Rights Litigation Against the Estate of Ferdinand E. Marcos.
[222] RA 10368, Section 17.
[223] The Final Judgment in Human Rights Litigation Against the Estate of Ferdinand E. Marcos states in relevant part:
[227] Id. at IV-6, p. 7 and 1-7, p. 1.
[228] See In re Estate of Ferdinand Marcos, Human Rights Litigation Hilao v. Estate of Ferdinand Marcos, 25 F. 3d 1467.
[229] Frederic Megret, Of Shines, Memorials and Museums: Using the International Criminal Court's Victim Reparation and Assistance Regime to Promote Transitional Justice, 13, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1403929 (last accessed 20 September 2016) [Megret].; Frederic Megret, The International Criminal Court and the Failure to Mention Symbolic Reparations, 12, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1275087 [last accessed 20 September 2016] [Megret II].
[230] Megret II, supra note 229, at 3.
[231] Sarkin, supra note 180, at 547.
[232] Megret II, supra note 229, at 6.
[233] Gina Doñoso, Inter-American Court of Human Rights' reparation judgments: Strengths and challenges for a comprehensive approach, 49 Revista IIDH 29, 58 (2009); Megret II, supra note 229, at 6.
[234] Sarkin, supra note 180, 548 citing the Report of Truth and Reconciliation Commission of South Africa.
[235] UN Sub-Commission on the Promotion and Protectton of Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political), 26 June 1997, E/CN.4/Sub.2/1997/20, par. 40 [hereinafter Joinet Report]; Contreras-Garduño, supra note 173, at 42.
[236] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, supra note 144, at 23.
[237] Thomas Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int'l Law, 279, 284 (2011).
[238] Megret, supra note 229, at 13.
[239] Thomas Antkowiak, supra note 237.
[240] Id.
[241] UN Reparations Principles, supra note 188, Principle 22 (b).
[242] Id., Principle 22 (d).
[243] Id., Principle 22 (e).
[244] Id., Par. 22 (g).
[245] Megret, supra note 229, at 26.
[246] Megret II, supra note 229, at 5.
[247] UN Reparations Principles, supra note 188, Principle 23 (g).
[248] Id., Principle 23 (h).
[249] The Prosecutor v. Thomas Lubanga Dyilo, supra note 178, par. 237.
[250] I/A Court H.R., Case of the Moiwana Community v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 15, 2005. Series C No. 124, par. 218.
[251] I/A Court H.R., Case of Trujillo Oroza v. Bolivia. Reparations and Costs. Judgment of February 27, 2002. Series C No. 92, par. 122.
[252] I/A Court H.R., Serrano-Cruz Sisters v. El Salvador, Monitoring Compliance with Judgment, Order of the Court, 2010 Inter-Am. Ct. H.R. (Feb. 3, 2010).
[253] Case of the Moiwana Community v. Suriname, supra note 250, par. 191.
[254] I/A Court H.R., Case of Norin Catriman et al. (Leaders, members and activist of the Mapuche Indigenous People) v. Chile. Merits, Reparations and Costs. Judgment of May 29, 2014. Series C No. 279, par. 432.
[255] I/A Court H.R., Case of Espinoza Gonzales v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 20, 2014. Series C No. 289, par. 327.
[256] UN Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, Memorialization processes, 23 January 2014, par. 5 [hereinafter Shaheed Report].
[257] Id., Summary.
[258] Id., par. 12.
[259] Id ., par. 39-41.
[260] Id., par. 9.
[261] UN Human Rights Council, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mission to Spain, 22 July 2014, par. 5 [hereinafter de Greiff Report].
[262] Id., par. 29-30
[263] Id., par. 32.
[264] Supra note 261.
[265] Ley de Memoria Historica or La Ley por la que se reconocen y amplian derechos y se establecen medidas en favor de quienes padecieron persecucion o violencia durante la Guerra Civil y la Dictadura, Ley 52/2007 de 26 de Diciembre.
[266] De Greiff Report, supra note 261, par. 27.
[267] Id.
[268] Id., par. 30.
[269] Id., par. 33.
[270] Id., par. 62.
[271] Id., par. 63.
[272] Rosales Petition, p. 61.
[273] Id. at 17.
[274] Anja Seibert-Fohr, Reconstruction Through Accountability in MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 559 (A. Von Bogdandy and R. Wolfrum, eds., 2005) citing U.N. GAOR, Hum. Rts. Comm., 52d Sess., 1365th mtg. at 12, para. 54, U.N. Doc. CCPR/C/SR.1365 (1994); U.N. GAOR, Hum. Rts. Comm., 57th Sess. at 5, para. 32, U.N. Doc. CCPR/C/79/Add.65 (1996).
[275] Van Boven Report, supra note 164, par. 126.
[276] Id., par. 127.
[277] Id., par. 130.
[278] UN Human Rights Committee, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, E/CN.4/2005/102/Add.1, 8 February 2005 [hereinafter UN Impunity Principles].
[279] Id., Preamble.
[280] Id., Principle 1.
[281] This report was accomplished pursuant to the request of the UNCHR Sub-Commission on Prevention of Discrimination and Protection of Minorities for Joinet to undertake a study on the impunity of perpetrators of human rights violations.
[282] Joinet Report, supra note 235.
[283] Id., par. 42.
[284] UN Impunity Principles, supra note 278, Preamble.
[285] Id., Principle 24.
[286] Joinet Report, supra note 235, par. 26.
[287] SECTION 2. Declaration of Policy. - Section 11 of Article II of the 1987 Constitution of the Republic of the Philippines declares that the State values the dignity of every human person and guarantees full respect for human rights. Pursuant to this declared policy, Section 12 of Article III of the Constitution prohibits the use of torture, force, violence, threat, intimidation, or any other means which vitiate the free will and mandates the compensation and rehabilitation of victims of torture or similar practices and their families.
By virtue of Section 2 of Article II of the Constitution adopting generally accepted principles of international law as part of the law of the land, the Philippines adheres to international human rights laws and conventions, the Universal Declaration of Human Rights, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity. In fact, the right to a remedy is itself guaranteed under existing human rights treaties and/or customary international law, being peremptory in character (jus cogens) and as such has been recognized as non-derogable.
Consistent with the foregoing, it is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.
Similarly, it is the obligation of the State to acknowledge the sufferings and damages inflicted upon persons whose properties or businesses were forcibly taken over, sequestered or used, or those whose professions were damaged and/or impaired, or those whose freedom of movement was restricted, and/or such other victims of the violations of the Bill of Rights.
[288] Id.
[289] Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, Republic Act No. 9851, 11 December 2009.
[290] Sections 14 and 15 of RA 9851 state:
[292] Id.
[293] PRESIDENTIAL DECREE 1445 (1978), Section 4(2); REPUBLIC ACT 7160 (1991), Section 305(b); See Strategic Alliance Development Corp. v. Radstock Securities Ltd., 622 Phil. 431 (2009).
[294] Yap v. Commission on Audit, 633 Phil. 174 (2010).
[295] Binay v. Domingo, 278 Phil. 515 (1991).
[296] See Petitioner-Organizations v. Executive Secretary, 685 Phil. 295 (2012).
[297] 526 Phil. 630 (2006).
[298] Id. at 638.
[299] TSN, 7 September 2016, pp. 220-226.
[300] See REPUBLIC ACT NO. 7160, Section 17.
[301] See PROCLAMATION NO. 425, Balantang Memorial Cemetery National Shrine in Jaro, Iloilo City.
[302] EXECUTIVE ORDER NO. 77, Transferring the remains of war dead interred at Bataan Memorial Cemetery, Bataan Province and at other places in the Philippines to the Republic Memorial Cemetery at Fort WM Mckinley, Rizal Province, 23 October 1954.
[303] PROCLAMATION NO. 86, Changing the "Republic Memorial Cemetery" at Fort WM McKinley, Rizal Province, to "Libingan ng mga Bayani," 27 October 1954.
[304] PRESIDENTIAL DECREE NO. 105, Declaring Naiional Shrines as Sacred (Hallowed) Places and Prohibiting Desecration Thereof, (1973).
[305] Consolidated Comment dated 22 August 2016, pp. 43-44.
[306] Id. at 5.
[307] Id. at 26.
[308] Yap v. Commission on Audit, supra note 294, at 188.
[309] See Albon v. Fernando, supra note 297.
[310] Consolidated Comment dated 22 August 2016, p. 16.
[311] Id., footnote 51.
[312] TSN, 7 September 2016, p. 165, 234.
[313] See Chavez v. Presidential Commission on Good Government, 360 Phil. 133 (1998).
[314] In Presidential Commission on Good Government v. Peña, supra note 103, at 107, the Court stated:
[316] Ordoñez v. Director of Prisons, G.R. No. 115576, 4 August 1994, 235 SCRA 152.
[317] Id.
[318] Foote, Kenneth E. and Maoz Azaryahu, Toward a Geography of Memory: Geographical Dimensions of Public Memory, Journal of Political and Military Sociology, 2007, Vol. 35, No. 1 (Summer), pp. 125-144.
[319] In Public Respondents' Memorandum (p. 99), it was declared:
DISSENTING OPINION
CARPIO, J.:
The petitions seek to prevent the interment of the remains of the late President Ferdinand E. Marcos (Marcos) at the Libingan ng mga Bayani (LNMB).
The LNMB was formerly known as the Republic Memorial Cemetery. On 27 October 1954, then President Ramon Magsaysay issued Proclamation No. 86, "changing the Republic Memorial Cemetery at Fort WM McKinley, Rizal Province, to Libingan ng mga Bayani." More than a decade later, then President Marcos issued Proclamation No. 208 on 28 May 1967, excluding approximately 1,428,800 square meters from the Fort Bonifacio Military Reservation for the site of the LNMB, and reserving the same for national shrine purposes under the administration of the National Shrines Commission. The National Shrines Commission was subsequently abolished and its functions transferred to the Military Shrines Service of the Philippine Veterans Affairs Office of the Department of National Defense under Presidential Decree No. 1076, issued by then President Marcos on 26 January 1977.
On 11 September 2000, Acting Armed Forces of the Philippines (AFP) Chief of Staff Jose M. Calimlim, by order of the Secretary of National Defense, issued AFP Regulation 161-375 (AFPR G 161-375),[1] on the allocation of cemetery plots at the LNMB.
Under AFPR G 161-375, the deceased persons who are qualified to be interred at the LNMB are:
The DND Memorandum resulted in the filing of these petitions, which oppose the implementation of the DND Memorandum for the interment of Marcos at the LNMB.
I vote to grant the petitions on the ground that Marcos is not qualified to be interred at the LNMB, and thus the Memorandum dated 7 August 2016 of DND Secretary Lorenzana was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
Marcos is disqualified from being interred at the LNMB
Assuming that Marcos was qualified to be interred at the LNMB as a Medal of Valor Awardee, and as a former President of the Philippines and Commander-in-Chief, he ceased to be qualified when he was ousted from the Presidency by the non-violent People Power Revolution on 25 February 1986.
AFPR G 161-375, which respondents rely on to justify the interment of Marcos at the LNMB, specifically provides that "personnel who were dishonorably separated/reverted/discharged from the service" are not qualified to be interred at the LNMB. Marcos, who was forcibly ousted from the Presidency by the sovereign act of the Filipino people, falls under this disqualification.
Dishonorable discharge from office
In Marcos v. Manglapus,[2] the Court described Marcos as "a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country."[3] In short, he was ousted by the Filipino people. Marcos was forcibly removed from the Presidency by what is now referred to as the People Power Revolution. This is the strongest form of dishonorable discharge from office since it is meted out by the direct act of the sovereign people.
The fact of Marcos' ouster is beyond judicial review. This Court has no power to review the legitimacy of the People Power Revolution as it was successfully carried out by the sovereign people who installed the revolutionary government of Corazon C. Aquino. The people have spoken by ratifying the 1987 Constitution, which was drafted under the Aquino government installed by the People Power Revolution. The Court has been steadfast in dismissing challenges to the legitimacy of the Aquino government, and has declared that its legitimacy is not a justiciable matter that can be acted upon by the Court.[4]
As the removal of Marcos from the Presidency is no longer within the purview of judicial review, we must accept this as an incontrovertible fact which has become part of the history of the Philippines. This ouster, which was directly carried out by by the sovereign act of the Filipino people, constitutes dishonorable removal from service. Marcos was forcibly removed from the position as President and Commander-in-Chief by the Filipino people. In Estrada v. Desierto,[5] the Court reiterated the legitimacy of the removal ofMarcos and the establishment of the Aquino government:
Respondents argue that because Marcos was not dishonorably discharged in accordance with the procedures and guidelines prescribed in Administrative Discharge Prior to Expiration of Term of Enlistment (Circular 17, dated 2 October 1987, Series of 1987, of the Armed Forces of the Philippines), Marcos was honorably separated from service.
I disagree.
First, Marcos was separated from service with finality, having been forcibly ousted by the Filipino people on 25 February 1986. Circular 17, issued more than one year after such separation from office, cannot be made to apply retroactively to Marcos. When Circular 17 was issued, Marcos had already been finally discharged, terminated, and ousted as President and Commander-in-Chief - by the Filipino people. Circular 17 requires certain administrative procedures and guidelines in the discharge of incumbent or serving military personnel. There is a physical and legal impossibility to apply to Marcos Circular 17 since it was issued long after Marcos had been separated from office.
Second, even assuming that Circular 17 can be given retroactive effect, Marcos was still dishonorably discharged from service since Circular 17 cannot prevail over the sovereign act of the Filipino people. Marcos was ousted by the direct act of the Filipino people. The sovereign people is the ultimate source of all government powers.[7] The Constitution specifically declares that "sovereignty resides in the people and all government authority emanates from them."[8] Thus, the act of the sovereign people in removing Marcos from the Presidency, which is now beyond judicial review, and thus necessarily beyond administrative review, cannot be overturned by a mere administrative circular issued by a department secretary. The reality is, more than one year before Circular 17 was issued, Marcos had already been removed with finality from office by the sovereign people for reasons that are far from honorable.
Circular 17, a mere administrative issuance of a department secretary, cannot be applied retroactively to undo a final act by the sovereign people. The power of all government officials, this Court included, emanates from the people. Thus, any act that runs afoul with the direct exercise of sovereignty by the people, such as the removable of a dictator, plunderer and human rights violator, cannot be countenanced. The sovereign act of the Filipino people obviously prevails over a mere administrative circular issued by a department secretary.
Equal Protection Clause
The respondents assert that the disqualifications under AFPR G 161-375 are inapplicable to former presidents as the disqualifications under AFPR G 161-375 apply only to military personnel and not to non-military personnel.
I disagree.
The disqualifications prescribed under AFPR G 161-375 are reasonable per se considering that the LNMB is a national shrine.[9] Proclamation No. 86 renamed the Republic Memorial Cemetery to LNMB to make it more "symbolic of the cause for which Filipino soldiers have died" and "to truly express the nation's esteem and reverence for her war dead." The disqualifications are safeguards to ensure that those interred at the LNMB indeed deserve such honor and reverence.
However, to submit to respondents' view that the disqualifications under AFPR G 161-375 apply only to military personnel, and that the President, even as Commander-in-Chief, is not a military personnel subject to such disqualifications,[10] negates the purpose for which the LNMB was originally established, which is to honor Filipino soldiers who fought for freedom and democracy for our country. Indeed, Marcos is the very anti thesis of freedom and democracy because he was a dictator as declared by this Court.
Respondents' view will discriminate against military personnel who are subject to the disqualifications. Applying only to military personnel the disqualifications will unduly favor non-military personnel who will always be eligible, regardless of crimes committed against the State or humanity, to be interred at the LNMB as long as they are included in the list of those qualified. This will lead to the absurd situation where a military officer who was dishonorably discharged would be disqualified, while a deposed President who was dishonorably discharged through an act of the sovereign people for committing plunder, human rights violations, and other atrocious acts would still be qualified to be interred at the LNMB.
The term "personnel" is not defined anywhere in Circular 17 and thus, we must refer to its common usage. Personnel is defined as "the people who work for a particular company or organization."[11] The enumeration of the people qualified to be interred at the LNMB includes both military (such as the Generals, Flag Officers and Active and Retired Military personnel of the AFP) and civilian (such as Presidents, Secretaries of National Defense, Government Dignitaries, Statesmen, National Artists and widows of former Presidents) personnel. Thus, the term "personnel" as used in the provision for disqualifications should refer to both military and civilian personnel. Significantly, paragraph 4 of AFPR G 161-375, the provision which enumerates those not qualified to be interred at the LNMB, does not use the word "military" to define personnel, while for other provisions in the regulation, the term "military" is specifically used to classify "personnel."
If as respondents argue, the disqualifications should apply only to military personnel, then AFPR G 161-375 would be a patent violation of the Equal Protection Clause as it would indiscriminately create unreasonable classifications between civilian and military personnel for purposes of interment at the LNMB. Such classification serves no purpose and is not germane to the purpose of interment at the LNMB. The Equal Protection Clause enshrined in Section 1, Article III of the 1987 Constitution states that: "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." The Equal Protection Clause applies not only to statutes or legislative acts but to all official state actions.[12] As explained in Bureau of Customs Employees Associations (BOCEA) v. Hon. Teves:[13]
In this case, however, there is no substantial distinction between the military and civilian personnel, for purposes of interment at the LNMB, that would warrant applying the disqualifications to military personnel and not to civilian personnel.
In Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,[18] the Court found that the rank-and-file employees of the Bangko Sentral ng Pilipinas (BSP) were unduly discriminated against when all the rank-and-file employees of other Government Financial Institutions (GFIs) were exempted from the Salary Standardization Law (SSL) while the SSL continued to be applied to the rank-and-file employees of the BSP. The Court held that while the exemption from the applicability of the SSL is a privilege that is within the prerogative of the legislature to grant, the validity or legality of the exercise is still subject to judicial review, such that if it is exercised capriciously and arbitrarily, the Court is duty bound to correct it. The Court held:
To sustain respondents' view would give rise to an absurd situation where civilians, eligible to be interred at the LNMB would have the absolute and irrevocable right to be interred there, notwithstanding that military personnel, likewise eligible to be interred at the LNMB, may be disqualified. There is no real or substantial basis for this distinction. The conditions for disqualification should likewise be applied to civilian personnel as the privileges conferred on them - interment at the LNMB is the same privilege conferred on military personnel.
Marcos' interment at the LNMB is contrary to public policy
Jurisprudence defines public policy as "that principle of the law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good."[20]
The Constitution grants the Legislative branch the power to enact laws and establish the public policy behind the law. The public policy is prescribed by the Legislature and is implemented by the Executive. The Executive must implement the law by observing the highest standards of promoting the public policy. These standards are embedded in the Constitution, international law and municipal statutes. By these standards, the DND Memorandum ordering the interment of Marcos at the LNMB is contrary to public policy.
Section 11, Article II of the 1987 Constitution provides that the State values the dignity of every human person and guarantees full respect for human rights. This public policy is further established in Section 12 of Article III which prohibits the use of torture, force, violence, threat, intimidation, or any other means which vitiate free will and mandates the rehabilitation of victims of torture or similar practices. Also, following the doctrine of incorporation,[21] the Philippines adheres to the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the Convention Against Torture. Through the provisions of the Constitution and international law, the State binds itself to enact legislation recognizing and upholding the rights of human rights victims.
Congress, by enacting Republic Act No. 10368 or "The Human Rights Victims Reparation and Recognition Act of 2013," established as a "policy of the State" to recognize the heroism and sacrifices of victims of (a) summary execution; (b) torture; (c) enforced or involuntary disappearance; and (d) other gross human rights violations during the Marcos regime. Section 2 of R.A. No. 10368 states:
The legislative declarations must be implemented by the Executive who is sworn under the Constitution to "faithfully execute the law." The Executive, in implementing the law, must observe the standard of recognizing the rights of human rights victims. Marcos' interment at the LNMB will cause undue injury particularly to human rights victims of the Marcos regime, as well as the sovereign people who ousted Marcos during the People Power Revolution. Marcos' interment at the LNMB is thus contrary to public policy.
The sufferings and deprivations of the human rights victims during the martial law era are well documented. The United States District Court of Hawaii in In Re Estate of Marcos[22] held Marcos guilty of widespread human rights violations and awarded one billion two hundred million U.S. Dollars ($1,200,000,000) in exemplary damages and seven hundred sixty-six million U.S. Dollars ($766,000,000) in compensatory damages to human rights victims. The judgment of the district court was affirmed by the Ninth Circuit Court of Appeals in Hilao v. Estate of Marcos.[23]
Finally, government funds or property shall be spent or used solely for public purposes.[24] Since Marcos was ousted by the sovereign act of the Filipino people, he was dishonorably discharged from office. Consequently, Marcos' dishonorable discharge serves to convert his burial into a private affair of the Marcos family. Hence, no public purpose is served by interring his remains at the LNMB.
ACCORDINGLY, I vote to GRANT the petitions in G.R. Nos. 225973, 225984, 226097, 226116, 226117, 226120, and 226294 and to DECLARE the DND Memorandum dated 7 August 2016 VOID for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
[1] AFPR G 161-375 superseded AFPR G 161-374 dated 27 March 1998, which in turn superseded AFPR G 161-373 issued on 9 April 1986.
[2] 258 Phil. 479 (1989).
[3] Id. at 492.
[4] Joint Resolution, Lawyers' League for a Better Philippines v. President Aquino, G.R. No. 73748; People's Crusade for the Supremacy of the Constitution v. Aquino, G.R. No. 73972; Ganay v. Aquino, G.R. No. 73990, 22 May 1986 (unsigned Resolution).
[5] 406 Phil. 1 (2001).
[6] Id. at 43-44.
[7] See Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, 239 Phil. 403 (1987).
[8] Article II, Section 1, 1987 Philippine Constitution.
[9] Proclamation No. 208, issued on 28 May 1967.
[10] Consolidated Comment (of public respondents) in G.R. No. 225973, G.R. No. 225984, and G.R. No. 226097, pp. 54-55.
[11] http://www.merriam-webster.com/dictionary/personnel?utm_campaign=sd&utm_medium=serp&utm_source=jsonld (last accessed 14 September 2016).
[12] 1-United Transport Koalisyon (1-UTAK) v. Commission on Elections, G.R. No. 206020, 14 April 2015, 755 SCRA 441; Biraogo v. The Phil. Truth Commission of 2010, 651 Phil. 374 (2010).
[13] 677 Phil. 636 (2011).
[14] Id. at 660.
[15] 158 Phil. 60 (1974).
[16] Id. at 87.
[17] Tiu v. CA, 361 Phil. 229 (1999).
[18] 487 Phil. 531 (2004).
[19] Id. at 582-583. Citations omitted.
[20] Gonzalo v. Tarnate, Jr., 724 Phil. 198, 207 (2014), citing Avon Cosmetics, Inc. v. Luna, 540 Phil. 389, 404 (2006).
[21] Article II, Section 2 states: "The Philippines x x x adopts the generally accepted principles of international law as part of the law of the land x x x."
[22] 910 F. Supp. 1460 (D. Haw. 1995).
[23] 103 F.3d 767 (9th Cir. 1996).
[24] Fort Bonifacio Dev't. Corp. v. Commissioner of Internal Revenue, 694 Phil. 7 (2012).
SEPARATE CONCURRING OPINION
BRION, J.:
I write this Separate Concurring Opinion to express the reasons for my vote to dismiss the petitions assailing President Rodrigo Duterte's order to inter the remains of former President Ferdinand Marcos at the Libingan ng Mga Bayani (LNMB).
I opine that the Court cannot grant the petitions as the petitioners presented issues that are outside our judicial authority - as defined by law and jurisprudence - to resolve.
I am not insensitive to the plight of victims of human rights violations, nor am I unaware of the allegations they raised against the Marcos administration. But their emotions and beliefs cannot and should not influence the faithful discharge of my duties as a Member of this Court.
The judicial power that the Court wields is symbolized by a blindfolded lady carrying a set of scales for a reason: it bases its decision, not on who the litigants are, nor on the clout - political, emotional, or financial - they may carry; judicial adjudication is based on law and evidence alone. Under this standard, I cannot grant the petitions without knowingly crossing the line separating judicial power from judicial overreach.
To my mind, the present petitions, however emotionally charged they might be, do not present an actual case or controversy that calls for the exercise of the power of judicial review.
Without an actual case or controversy, we cannot and should not exercise this exceptional power; even our expanded jurisdiction under the Constitution does not allow exceptions to this deficiency. For us to indulge in this exercise would not only amount to a judicial overreach, but could possibly thrust this Court into a political minefield that could not be traversed without weakening the public's trust and confidence in our institution.
Ours is a power that emanates from the authority, granted to us under the Constitution, to interpret and apply the law in actual and live disputes. We exercise this power through the decisions we render in cases presented before us; without the public's respect and trust in the legal soundness of our decisions, our pronouncements would be no different from meaningless doodles that children write on throw away papers.
Even if we were to exercise our power of judicial review in these petitions, the exercise of our judgment should be limited by the following considerations:
First, judicial review, even under our Court's expanded jurisdiction, does not empower the Court to directly pass upon allegations involving violations of statutes;
Second, the Constitution's "faithful execution" clause cannot be made the basis to question the Executive's manner of implementing our laws;
Third, the petitioners failed to specify any treaty obligation prohibiting Marcos' burial at the LNMB;
Fourth, the Constitution, while built on the ashes of the Marcos regime, should not be interpreted in a way that would prevent reconciliation and the country's move towards national unity; and
Finally, the necessity of Marcos' burial at the LNMB is a political question that the President has decided, and is not without support from the Filipino electorate.
I shall discuss these points in the order posed above.
Judicial review, even under our Court's expanded jurisdiction, does not empower the Court to directly pass upon allegations involving violations of statutes.
The petitions directly assail before this Court the President's decision allowing the interment of the remains of former President Marcos at the LNMB; they impute grave abuse of discretion on President Duterte for this decision and seek, under this Court's expanded jurisdiction, the nullification of his actions. By doing so, the petitioners directly seek the exercise of our power of judicial review.
After due consideration, I find that these petitions failed to establish the necessity of the Court's direct exercise of its power of judicial review, as their cited legal bases and arguments largely involve violations of the law or its misapplication. The remedy available to them, given their objective, is not judicial review under the Court's expanded jurisdiction, but the ordinary remedies available for errors of law under the Rules of Court.
Thus, we cannot grant to the petitioners the remedy they seek, as their desired remedy lies outside this Court's power to directly provide.
The petitions collectively assert that the burial order violates several statutes and implementing rules and regulations, among them: AFP Regulations G 161-373,[1] Republic Act (RA) No. 289,[2] and RA 10368.[3] The petitions further assert that the President's failure to interpret these laws, together or in relation with one another, to bar Marcos' burial at the LNMB,
violates the faithful execution clause and the spirit of the 1987 Constitution.
Indeed, our Court now possesses the duty to determine and to act when "grave abuse of discretion amounting to lack or excess of jurisdiction on the part of ... the government" exists. This is a grant of power under the second paragraph of Article VIII, Section 1 of the 1987 Constitution.
Under the expanded jurisdiction that the Constitution granted this Court, our duty to exercise judicial review runs broad and deep; it exists even when an aspect of the case involves a political question. We have in fact cited this duty to justifY the relaxation of the "standing" requirement for judicial review when the case presents a matter of transcendental importance, a standard that the Court has formulated and self-defined to allow for the exceptional application of our jurisdiction.
Separately from all these, I have also been pushing for an alternative approach in invoking our expanded jurisdiction, by recognizing that a prima facie showing of grave abuse of discretion on the part of the government in cases involving constitutional violations, should be sufficient to give a Filipino citizen the standing to seek judicial remedy.
The Court's expanded jurisdiction, however, affects only the means of invoking judicial review, and does not change the nature of this power at all. The power of judicial review pertains to the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution.[4] As a requirement for its direct exercise by this Court, the "grave abuse of discretion" that triggers the Court's expanded jurisdiction must necessarily involve a violation of the Constitution.
In other words, the Court's direct authority to exercise its expanded jurisdiction is limited to the determination of the constitutionality of a governmental act. Grave abuse of discretion arising from mere violations of statutes cannot, as a rule, be the subject of the Court's direct exercise of its expanded jurisdiction. The petitioners' recourse in this situation lies with other judicial remedies or proceedings, allowed under the Rules of Court, that may arrive in due course at the Court's portals for review.
In the context of the present case, for the Court to directly exercise its expanded jurisdiction, the petitioners carry the burden of proving, prima facie, that the President's decision to inter Marcos at the LNMB violates the Constitution.
This view is not only in accord with existing pronouncements on judicial review and the exercise of judicial power; it is also the more prudent and practicable option for the Court.
Opening the Court's direct exercise of its expanded jurisdiction to acts that violate statutes, however grave the abuse of the statute might be, significantly dilutes the doctrines of hierarchy of courts,[5] primary jurisdiction,[6] and exhaustion of administrative remedies.[7] In short, the necessity for the application of these doctrines diminishes when recourse to the Court is immediately and directly made available.
The practice of directly accessing this Court could also possibly add petitions that are jointly cognizable with the lower courts, to the Court's already clogged dockets, and deluge this Court with matters that are highly technical in nature or are premature for adjudication. Let it be remembered that the Supreme Court is not a trier of facts; this adjudicatory role belongs, as a rule, to the lower courts.
In these lights, I find that the petitioners' allegations equating President Duterte's alleged statutory violations (when he issued his burial order) to grave abuse of discretion, are not the proper subject of judicial review under the Court's direct exercise of its expanded jurisdiction.
Assuming, hypothetically, that several statutes have indeed been erroneously applied by the President, the remedy for the petitioners is not the direct and immediate recourse to this Court for the nullification of the illegal acts committed. Violations of statutes by the Executive may be assailed through administrative bodies that possess the expertise on the applicable laws and that possess as well the technical expertise on the information subject of, or relevant to, the dispute.
For these statutory violations, recourse may be made before the courts through an appeal of the administrative body's ruling, or by filing for a petition for declaratory relief before the lower court with jurisdiction over the matter. Only when these lower courts have rendered their decisions should these matters be elevated to this Court by appeal or certiorari; even then, the issues the petitioners may present are limited to questions of law, not to questions of fact.
The faithful execution clause does not allow the constitutionalization of issues that, if proven to be true, would amount to the violation of statutes.
Neither can I agree that the "faithful execution" clause found in the Constitution may be used to constitutionalize issues that primarily involve the manner by which laws are implemented.
The Constitution vests in the President the power to execute laws under Section 1, Article VII of the 1987 Constitution which provides:
This immense executive power, however, is not without limitations. The Constitution provides clear and categorical limits and any violation of these limits could amount to a grave abuse of discretion on the part of the President.
The Constitution has as well defined how the President is to relate to other officials within his own department. Article VI, Section 17 of the 1987 Constitution provides that:
To hold otherwise is inconsistent with the plenary nature of executive power that the Constitution envisions. The Constitution intends as well a tripartite system of government where each branch is co-equal and supreme in its own sphere.
These intents could be defeated if the standard of "faithfulness" in executing our laws would be a constitutional standard measuring the manner of the President's implementation of the laws. In the first place, it places the Court in the position to pass upon the scope and parameters of the vague and not-easily determinable "faithfulness" standard. Putting the Court in this position (especially when considered with the Court's expanded jurisdiction) amounts to placing it in a higher plane from where it can dictate how laws should be implemented. In fact, it is hard to discern how the Court can apply a standard for the faithful execution of the laws, without determining how the law should be implemented in the first place.
Additionally, characterizing the failure to ensure faithful execution of the laws as a constitutional violation can prove to be an unreasonably restricting interpretation. It could possibly paralyze executive discretion, and expose the Executive to constant lawsuits based on acts of grave abuse of discretion he or she allegedly committed.
Thus, the duty to "ensure that laws are faithfully executed" should not be read as the constitutional standard to test the legality of the President's acts so that a legal error in the implementation of a law becomes a con:stitutional violation of his faithful execution duty.
Incidentally, the interpretation that the faithful execution clause refers to the President's power of control and supervision is in line with US jurisprudence interpreting the "take care" clause of the United States Constitution, which - as everyone knows - served as the 1935 Philippine Constitution's model from which our later constitutions have not departed. Article II, Section 3 of the United States Constitution provides:
In Kendall v. United States ex rel. Stokes,[12] for instance, the US Supreme Court characterized a provision requiring the Postmaster General to provide back pay to mail courier providers as a ministerial duty that the President had no authority to prevent. The US Court arrived at this ruling in Kendall using the take care clause as basis to prevent the President from stopping the implementation of a ministerial duty that Congress imposed.
On the flipside, the take care clause has likewise been used to invalidate laws that rob the President of his powers of control and supervision over the Executive. In Buckley v. Valeo,[13] for instance, the US Court held that the Congress cannot arrogate unto itself the power to appoint officials to an independent commission that exercises executive powers. The reason for this ruling is the President's duty to ensure that the laws are faithfully executed.
While the two functions of the take care clause in US jurisprudence could at times seem to conflict with each other (one imposes a duty on the President, the other recognizes his authority)[14] it has never been used to question the manner by which the President's executive power is exercised.
Notably, the President's duty to implement laws under the take care clause is judicially enforceable only where the statute in question provides a clear and categorical directive to the President. Where a statute leaves to the executive the details of its implementation, the latter should be given sufficient leeway in exercising its duty.
In sum, the petitioners' insistence that the burial order's violation of various laws amounts to a constitutional violation involving the faithful execution clause, rests on a very tenuous interpretation of this clause that stretches it to its breaking point. The faithful execution clause does not allow litigants to question - as a constitutional violation - the manner by which the President implements a law. The Court, for its part, has no authority to directly resolve the alleged statutory violations that, in this case, allegedly attended the burial order.
The burial order does not violate international law obligations.
The petitioners' international law arguments, in my view, likewise fail to establish the unconstitutionality of the President's burial order.
The petitioners argue that the burial order violates several international law obligations, based on the Philippines' status as a signatory to the Universal Declaration of Human Rights (UDHR), the International Covenant for Civil and Political Rights (ICCPR), the Rome Statute, and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
While I agree that these international agreements (except for the UDHR, which is a non-binding document with provisions attaining the status of customary international law) had been ratified by the Philippine government and hence have the force and effect of law in the Philippines, the petitioners failed to point to any specific treaty obligation prohibiting Marcos' burial at the LNMB or at any other public cemetery.
These treaties prohibit torture or cruel, inhuman or degrading treatment or punishment,[15] and recognize these acts as crimes against humanity[16] falling within the jurisdiction of the International Criminal Court.[17] State parties to CAT are likewise obliged to criminalize torture and take effective legislative, administrative, judicial, and other measures to prevent torture.[18] Parties also have the obligation to investigate claims of torture[19] and ensure that torture victims have an enforceable right to fair and adequate compensation.[20]
Article 14 of the CAT, in particular, requires state parties to "ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation."
The petitioners assert that the burial order amounts to a state sanctioned narrative that violates the Philippines' duty to provide a "full and effective reparation" for human rights violations victims. The petitioners cite as legal bases Principle 22 and Principle 23 of the Basic Principles and Guidelines on the right to a remedy; Reparation for Victims of Gross Violations of International Human Rights Law (IHRL); Serious Violations of International Humanitarian Law (IHL); and Principle 2 and Principle 3 of the Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity.
These principles, however, do not create legally binding obligations. They are not international agreements that states accede to and ratify, as states have not agreed to formally be bound by them. Declarations, principles, plans of action and guidelines are considered "soft law" because they do not bind states, although they may carry considerable political and legal weight. They are considered statements of moral and political intent that, at most, may subsequently ripen into international norms.[21]
Paragraph 7 of the Preamble of The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law (IHRL), for instance, does not create new international or domestic legal obligations, viz:
Without any specific and legally binding prohibition limiting the President's actions, no basis exists to nullify his order and to disregard the presumption of regularity that exists in the performance of his duties.
Lastly, it must be considered that the burial order does not have the effect of rewriting jurisprudence and excusing the ills of the Marcos administration; neither does it amend Republic Act No. 10368 ("Human Rights Victims Reparation and Recognition Act of 2013"), a law that had been enacted as part of the Philippines' compliance with its obligations in the ICCPR and CAT.
RA 10368, among others, creates a Human Rights Victims Claims Board tasked to recognize victims of human rights violations and to recommend their claims for reparation. RA 10368 even recognizes the "heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance, and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986." The law makes it a policy to "restore the victims' honor and dignity" and acknowledge the State's moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations, and damages they suffered under the Marcos regime.
These terms and provisions, however, while critical of the Marcos regime hardly amount to a prohibition barring the interment of his remains in a resting place duly reserved by law for soldiers; former President Marcos indisputably was a soldier during his lifetime and was one long before the human rights violations attributed to him took place. To deny him now, despite the law entitling him to a LNMB resting place, may only lay the petitioners to the charge that they are now doing to another what they have accused former President Marcos of doing - denying another of the rule of law.
Divining the spirit of the Constitution is acceptable only to clarify ambiguities in its provisions, and not to create entirely new provisions.
a. The Spirit of the 1987 Constitution
The petitioners further argue that Marcos' interment at the LNMB violates the spirit of the 1987 Constitution which was crafted as a reaction to the abuses during the Marcos regime. Limitations and restrictions to the President's power, in particular, had been introduced because of former President Marcos' abuses during his regime. Thus, to inter him at the LNMB would amount to a violation of the reasons underlying the Constitution.
In particular, the petitioners assert that former President Marcos' burial at the LNMB violates two other principles enshrined in the 1987 Constitution: first, it violates Section 27, Article II of the Constitution as the burial of a dishonest and disgraced public official will not promote honesty and integrity in public service; second, it violates Section 1, Article XI of the Constitution[22] because it goes against the precept that corruption is never forgotten.
Constitutional provisions, read by themselves for the principles and precepts they embody, hardly reveal the clear intents that drove the constitutional framers to incorporate these provisions in the Constitution. These intents, however, are neither lost nor hidden as they can be gleaned from the deliberations of the Constitutional Commission which drafted the Constitution.
In this Court, we use and have used these deliberations as guides to interpret the Constitution when there exist ambiguous or seemingly conflicting provisions crucial to the resolution of a case. We look to these deliberations to find the intent behind the constitutional provisions to clarify how they should be applied.
While constitutional intent serves as a valuable guide in undertaking our adjudicatory duties, it does not embody a right and, by itself, is not a basis for the enforcement of a right. Neither does it provide a standard on how the President should act and enforce the laws, without prior reference to specific provisions or legislations applying the intent of the Constitution.
In the context of the present petitions, without any specific provision alleged to have been violated by the burial order, the constitutional intents that the petitioners brought to light cannot be used as a measure to resolve the issues that bedevil us in these cases. Specifically, they cannot be used as basis to determine the existence of grave abuse of discretion under the Court's expanded jurisdiction. As we have done by long established practice, we rely on intent only to settle ambiguities that cross our paths in the course of reading and considering constitutional provisions.
To go to the concrete and the specific demands of the issues at hand, we cannot use the faithful execution clause as basis to question the manner by which the Executive implements a law.
Neither can we interpret Article II, Section 27 and Article XI, Section 1 to prohibit former President Marcos' interment at the LNMB. To be sure, these are provisions that cannot be faulted as they enshrine honesty, integrity, and accountability in the public service, and require government officials to exercise their functions "with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives."
Despite their high minded terms, however, these provisions can hardly be claimed as basis, in the absence of clear and concrete legislation embodying actionable standards, for the petitioners' claims; these provisions can only describe our aspirations for our government and government officials, and could not have been meant to dilute the President's prerogatives in making his political moves, among them, his decision on the interment of a previously deposed president.
It should be noted, too, that Article II, Section 27 does not appear to be a self-executing provision. Its location, i.e., under Article II, Declaration of State Principles, strongly hints of its non-self-executing[23] nature. The language itself of the provision obligates the State to "take posttlve and effective measures against graft and corruption." Under these terms and circumstances, this provision merely reflects a statement of an ideal that cannot be realized independently of a concrete congressional enactment. Its goal of maintaining honesty and integrity in the public service cannot likewise be implemented without laws defining and promoting these values.
b. No Express Constitutional Bar to Interment
The Constitution was undeniably forged out of the ashes of the Marcos regime. Its enactment after the Marcos regime collapsed, however, does not suggest and cannot be translated into an implied command preventing his burial at the LNMB or in a shrine of national significance. Had such prohibition been the intent, the Constitution's transitory provisions would have specifically so provided in the manner these provisions incorporated terms that the framers wanted to implement within intended and foreseeable time frames.[24]
c. Historical Perspectives
Unfortunately, both in the pleadings and in the media, the Court majority has been accused of being quick to forget the lessons of the Martial Law Era. I see no point in directly answering this charge as this Opinion has not been written to consider historical perspectives except to the extent that they bear on the immediate business an concern of the Court the interpretation and application of the Constitution.
The Court, of course, is not blind to history but is not a judge of history; it is a judge of the interpretation and application of the terms of the Constitution.[25] When the time comes therefore when we are tested by push and pull of history and those of the Constitution, an answer is not difficult to make even if we are dealing with an exceptional historical figure.
The clear and simple response is that concerns raised by the Constitution must first be addressed; historical considerations follow unless the constitutional concern is so affected or intertwined with history that we cannot consider one without the other. Fortunately for us in the present case, no such consideration requires to be taken as the way is clear: we rule based on the standards of our Constitution.
Based on these considerations, I believe we should not be charged with being blind to the lessons of the past, in partic;ular of what transpired during the martial law era. Rather than being blind, we simply do not look first to history in resolving disputes before us; we look to the law as our primary guide and consideration.
Thus, if we do rule in favor of the burial of former President Marcos at the LNMB, we do not thereby dishonor those who believe they suffered under his regime. Nor are we unmindful of the laws crafted in their favor; we considered these laws but they are simply not the laws primarily relevant and applicable to the issue before us - the interment of former President Marcos at the LNMB.
d. Considerations of Policy
I do know as a matter of law and history that the framers of our Constitution crafted it with the intent of preventing another tyrant from rising to power and from consolidating the State's might for himself. A stronger tripartite government with a system of checks and balances became the cornerstone of our new democracy. Under this system, each of the three branches of government perform specific, distinct, and clearly delineated functions. The intent is to prevent one branch from encroaching on the prerogatives of another and to characterize any usurpation as an act of tyranny. These constitutional principles are the policies that receive primary consideration from us as a Court.
The Constitution vested the Supreme Court with judicial power the power and duty to settle actual controversies involving rights which are legally demandable and enforceable, and 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. Considering that Justices of this Court are not elected by the sovereign people, the framers did not see it fit to give us dominion over matters of policy.
From these perspectives, this Court is clearly not a court of public opinion; we are court of law. With respect to matters of policy, we have no right to substitute our wisdom over that of duly elected political branches. They carry the mandate of the popular will we do not.
Under the impetus of these constitutional realities, the wisdom of or need for the interment of former President Marcos at the LNMB is a political question[26] that our President decided after an assessment of the thoughts and sentiments of the people from all the regions in our country; it is a policy determination that is outside the Court's jurisdiction to pass upon or interfere with as a matter of law.
Separately from our consideration of the Executive and its policy, we are also aware that strong sentiments exist against the burial of former President Marcos at the LNMB. We hear the loud and strident voices that proclaim these sentiments. But we are likewise aware that against the pull by those who voice these sentiments are counterforces pulling into other directions, specifically, the pull of the law and those of policy.
As I have already indicated, I again say that the law must prevail under the unwavering standard we observe. But we recognize at the same time that policy has its own demands. Ultimately, we recognize that vowing to the raucous crowd may temporarily signify harmony, but we do so at the expense of disregarding Executive policy and weakening the political branches, and indeed, the very institution of government itself.
Thus, we have no choice if we are to truly serve as guardians of the Constitution. In the absence of any countervailing legal considerations, we give primacy to the Executive's policy as this is the law - the constitutional separation of power - that we have to fully respect.
As my last point, that the burial of Marcos had been a campaign promise strengthens the nature of former President Marcos' burial at the LNMB as a political question. Voters knew of his plan to bury Marcos at the LNMB at the time he campaigned, and might have voted for him because or regardless of this plan. President Duterte's victory in the polls signifies, at the very least, the electorate's tolerance of his decision and, at most, the electorate's support.
In sum and without hesitation, we must now recognize that the petitioners have failed to establish any clear constitutional breach attendant to the President's burial order. We must therefore respect and abide by the Executive's decision to allow the interment of former President Marcos at theLNMB.
WHEREFORE, I vote to DISMISS the petitions, and to lift the status quo ante order this Court issued to avoid rendering the petitions moot and academic prior to our decision.
[1] AFP Regulations G 161-373 Allocation of Cemetery Plots at the LNMB, issued on 9 April 1986 by then AFP Chief of Staff General Fidel V. Ramos and then President Corazon Aquino.
[2] An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes, and Pantheon for Presidents of the Philippines, National Heroes, and Patriots of the Country, 16 June 1948. "Section 1: To perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn. x x x" (Emphasis by petitioner)
[3] Human Rights Victims Reparation and Recognition Act of 2013.
[4] Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009. Note, at this point, that judicial review is an aspect of judicial power, which the Constitution defines as the power to "settle actual controversies involving rights which are legally demandable and enforceable"; thus the Court necessarily exercises judicial power when engaging in judicial review, but not all exercises of judicial power includes, or needs, the exercise of the judicial review power. Judicial review, when approached through the traditional route, requires the existence of four requirements, viz: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.
[5] Under the principle of hierarchy of courts, direct recourse to this Court is improper because the Supreme Court is a court of last resort and must remain to be so in order for it to satisfactorily perform its constitutional functions, thereby allowing it to devote its time and attention to matters within its exclusive jurisdiction and preventing the overcrowding of its docket. Republic of the Philippines v. Caguioa, G.R. No. 174385, February 20, 2013
[6] The doctrine of primary jurisdiction holds that if a case is such that its determination requires the expertise, specialized training and knowledge of an administrative body, relief must first be obtained in an administrative proceeding before resort to the courts is had even if the matter may well be within their proper jurisdiction. It applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative agency. In such a case, the court in which the claim is sought to be enforced may suspend the judicial process pending referral of such issues to the administrative body for its view or, if the parties would not be unfairly disadvantaged, dismiss the case without prejudice. Euro-med Laboratories Phil v. Province of Batangas, G.R. No. 148106, July 17, 2006.
[7] The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. Republic v. Lacap, G.R. No. 158253, March 2, 2007, 517 SCRA 255, 265.
[8] In Sanalakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, for instance, the Court noted:
In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R. Cortes, proposed that the Philippine President was vested with residual power and that this is even greater than that of the U.S. President. She attributed this distinction to the "unitary and highly centralized" nature of the Philippine government. She noted that, "There is no counterpart of the several states of the American union which have reserved powers under the United States constitution." Elaborating on the constitutional basis for her argument, she wrote:
.... The [1935] Philippine [C]onstitution establishes the three departments of the government in this manner: "The legislative power shall be vested in a Congress of the Philippines which shall consist of a Senate and a House of Representatives." "The executive power shall be vested in a President of the Philippines." The judicial powers shall be vested in one Supreme Court and in such inferior courts as may be provided by law. These provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive, and judicial powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, "a grant of legislative power means a grant of all the legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government." If this is true of the legislative power which is exercised by two chambers with a combined membership [at that time] of more than 120 and of the judicial power which is vested in a hierarchy of courts, it can equally if not more appropriately apply to the executive power which is vested in one official - the president. He personifies the executive branch. There is a unity in the executive branch absent from the two other branches of government. The president is not the chief of many executives. He is the executive. His direction of the executive branch can be more immediate and direct than the United States president because he is given by express provision of the constitution control over all executive departments, bureaus and offices.55
The esteemed Justice conducted her study against the backdrop of the 1935 Constitution, the framers of which, early on, arrived at a general opinion in favor of a strong Executive in the Philippines."56 Since then, reeling from the aftermath of martial law, our most recent Charter has restricted the President's powers as Commander-in-Chief. The same, however, cannot be said of the President's powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's
... 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.57 [Underscoring supplied. Italics in the original.]
[9] See de Leon v. Carpio, G.R. No. 85243, October 12, 1989, 178 SCRA 457, Blaquera, et. al. v. Alcasid, G.R. No. 109406, September 11, 1998.
[10] See Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000, 336 SCRA 201, Taule v. Santos, Dadole et. al. v. COA, G.R. No. 90336, August 12, 1991, 200 SCRA 512.
[11] See Todd Garvey, The Take Care Clause and Executive Discretion in the Enforcement of Law, September 4, 2014, available at https://www.fas.org/sgp/crs/misc/R43708.pdf.
[12] 37 U.S. 524 (1838).
[13] 424 U.S. 1 (1970).
[14] Supra note 6.
[15] Article 7 of the ICCPR provides:
Article 7 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
[16] Article 7, Section 1, (g) of the Rome Statute.
[17] Article 5, Section 1 (b) of the Rome Statute.
[18] Article 2, CAT.
[19] Article 12 and 13, CAT.
[20] Article 14, CAT.
[21] See The International Council on Human Rights Policy, Human Rights Standards: Learning from Experience, (2006) pp. 11, 14-18, available at http://www.ichrp.org/files/reports/31/120b_report_en.pdf
[22] "Public office is a public trust. x x x"
[23] In Manila Prince Hotel v. GSIS, G.R. No. 122156, February 3, 1997, the Court has distinguished between self-executing and non-self-executing provisions of the Constitution, viz:
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action.
[24] The transitory provisions, for example, specifically laid down the rule that after the expiration of the Military Bases Agreement, military bases, troops and facilities shall not be introduced into the Philippines except through a treaty concurred in by the Senate.
[25] Gudani v. Senga Corona, G.R. No. 170165, August 15, 2006.
[26] A political question refers to "those questions which, under the Constitution, are to be decided by the people in theic soveceign capacity, or in regard to which full disccetionacy authocity has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure." Tañada v. Cuenco, G.R. No. L-10520, February 28, 1957.
SEPARATE OPINION
MENDOZA, J.:
The Court should not take sides in this political controversy.
The questions being truly political, there is simply no justiciable controversy. Hence, the petitions should be dismissed.
Ferdinand Edralin Marcos (President Marcos) was not, and will never be, a hero. His interment in the Libingan Ng Mga Bayani (LNMB) will not erase the atrocities committed during his authoritarian rule. His place in history will ultimately be judged by the people.
His worthiness as a hero, however, is not the issue at hand. The current controversy revolves around the decision of the administration of President Rodrigo Roa Duterte (President Duterte) to allow the burial of the remains of President Marcos in the LNMB in the exercise of his discretion as Chief Executive.
In the course of his campaign for the May 2016 national elections, President Duterte promised to have the remains of the late president buried in the LNMB as a step towards national conciliation or healing. After winning the elections, he followed through on his campaign promise. Pursuant thereto, the public respondents began to take steps to implement his verbal order.
Herein petitioners, majority of whom are either victims or kin of victims of human rights violations committed during the regime of the deposed dictator, assert that the interment is contrary to the Constitution, laws and regulations, and international law. The petitioners claim that a recognized dictator, plunderer and human rights violator has no place in the LNMB, which is reserved for persons who are worthy of emulation or a source of inspiration.
Issues involved are truly political questions which are non-justiciable
The Court has refused to take cognizance of cases which do not present any justiciable controversy, such as when the issue presented is a truly political question. In the landmark case of Tañada v. Cuenco,[1] the Court expounded on the concept of political question, viz:
The expanded judicial power bestowed by the Constitution is an offshoot of the prevalence, during the Marcos regime, of invoking the political question doctrine every time government acts were questioned before the courts. The present Constitution, thus, empowered the courts to settle controversies if there would be grave abuse of discretion.
Notwithstanding the expanded power of the courts, the political question doctrine remains operative. The present provision on judicial power does not mean to do away with the political question doctrine itself, and so "truly political questions" are still recognized.[2] In Francisco v. HRET,[3] the Court explicitly recognized the political question doctrine and explained how the same was determined:
Guided by the foregoing, it is my considered view that the decision of President Duterte to allow President Marcos to be interred in the LNMB is beyond the ambit of judicial review.
Interment of President Marcos in the LNMB is a discretionary act of President Duterte
Executive power is vested in the President of the Philippines.[8] Inherent in the executive power is the duty to faithfully execute the laws of the land and is intimately related to the other executive functions.[9] Section 17, Article VII of the Constitution[10] embodies the faithful execution clause. The Executive is given much leeway in ensuring that our laws are faithfully executed.[11] Thus, any act pursuant to the faithful execution clause should be deemed a political question as the President is merely executing the law as it is. There is no question as to the legality of the act but on its wisdom or propriety.
Indeed, the duty to execute the laws of the land is not discretionary on the part of the President, in the same manner that it is not discretionary on the part of the citizens to obey the laws. In Spouses Marquez v. Spouses Alindog,[12] the Court drew a fine line between a discretionary act and a ministerial one.
Moreover, the authority of President Duterte to allow the interment of President Marcos in the LNMB is derived from the residual powers of the executive. In the landmark case of Marcos v. Manglapus,[13] the Court had expounded on the residual powers of the President, to wit:
To this, however, the petitioners vehemently disagree. Thus, in their petitions, they challenge the wisdom of the decision of the President. They bewail, and understandably so, that Marcos was not a hero who deserved to be buried in the hallowed grounds of the LNMB. They view him as not worthy of being buried alongside those who were true heroes, as they hold him responsible for the illegal detention, arrest, torture, disappearances, and summary executions of those who opposed his regime.
The Court should not comment on those points for now. It is not unaware of the sufferings of the victims of human rights during martial law. The Court, however, should defer exercising jurisdiction when the acts of the State are challenged based on their wisdom or propriety. It should be stressed, however, that the interment of President Marcos in the LNMB will not bestow upon him the title of a hero. It will not erase from the memories of the victims what have been etched in their minds - that President Marcos was a heartless dictator and rapacious plunderer of our national economy and patrimony.
No Grave Abuse of Discretion
Granting that the discretionary act of President Duterte was covered by the expanded scope of judicial power, the petitions would still lack merit. There is absolutely no showing that the acts of the public respondents are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.
Grave abuse of discretion is a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility.[14]
In the situation at hand, no grave abuse of discretion is manifest as there is no violation of any constitutional provision or law. In fact, the public respondents were guided by, and complied with, the law. Under AFP Regulation G 161-375, the following are eligible for interment in the LNMB:
When the public respondents based their decision on the applicable laws and regulations, they cannot be said to have committed grave abuse of discretion. Besides, it is not for the Court to determine who is worthy of inspiration or emulation.
It is true that the present Constitution was crafted to prevent the occurrence of abuse prevalent during the Marcos Regime. This is evident in numerous provisions of the Constitution such as the Bill of Rights and the provisions under the Executive Department limiting the power to declare Martial Law. Nevertheless, the Constitution neither expressly nor impliedly prohibits the interment of President Marcos in the LNMB.
Moreover, the decision to allow the interment of President Marcos in the LNMB is not contrary to R.A. No. 289 and R.A. No. 10368. As explained by the public respondents, the National Pantheon mentioned in R.A. No. 289 was quite different from the LNMB. As such, the standards claimed by the petitioners in R.A. No. 289 are not applicable to the LNMB.
Likewise, the interment of President Marcos in the LNMB is not repugnant to the avowed policy of R.A. No. 10368, which seeks to recognize the heroism of human rights violation victims (HRVV) during martial law. First, R.A. No. 10368 neither expressly nor impliedly prohibits his burial in the LNMB. Second, his interment is not incongruous with honoring HRVVs considering that the burial is not intended to confer upon him the title of a hero. Third, the State can continue to comply with its obligation under R.A. No. 10368 to provide recognition and reparation, monetary or non-monetary, to the HRVVs, notwithstanding his burial in the LNMB.
A Final Note
Lest it be misunderstood, the Court is not passing judgment on whether President Marcos truly deserves to be buried in the LNMB. It is merely exercising judicial restraint as the issues at hand are truly political in nature and, therefore, are best left to the discretion of the President.
The Court sympathizes with the HRVVs and acknowledges the harrowing ordeals they suffered in the hands of government forces during martial law. The stigma left by the martial law regime will never be forgotten by the Filipino people and the burial of President Marcos in the LNMB will not re-write history.
On the matter, however, the Supreme Court should not have a hand. It should not resolve the issues in this truly political controversy.
Accordingly, I vote to dismiss these petitions and move on.
[1] G.R. No. L-10520, February 28, 1957.
[2] Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003).
[3] 460 Phil. 830 ((2003).
[4] Id. at 910-912.
[5] The Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015.
[6] Marcos v. Manglapus, 258 Phil. 479, 506-507 (1989)
[7] Id. at 506.
[8] Section 1, Article VII of the Constitution.
[9] Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January 12, 2016.
[10] The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
[11] Biraogo v. The Philippine Truth Commission, 651 Phil. 394, 449 (2010).
[12] G.R. No. 184045, January 22, 2014.
[13] 258 Phil. 479, 504-505 (1989).
[14] Intec Cebu, Inc., v. CA, G.R. No. 189851, June 22, 2016.
CONCURRING OPINION
BERSAMIN, J.:
These consolidated special civil actions (variously seeking the writs of certiorari, mandamus and prohibition)[1] concern the question of whether or not the Chief Executive, in verbally authorizing the interment of the remains of the late President Ferdinand E. Marcos in the Libingan ng mga Bayani (LNMB), gravely abused his discretion.
I CONCUR with the MAIN OPINION so eruditely penned for the Majority by Justice Diosdado M. Peralta. I hereby only express my reasons for voting to dismiss the petitions, and thus to allow the interment to proceed.
President Rodrigo Roa Duterte was sworn to office and assumed the Presidency at noontime of June 30, 2016. In his campaign for the Presidency, he had promised, among others, that if elected he would authorize the interment of the remains of the late President Marcos in the LNMB. To deliver on this promise, he verbally directed Secretary Delfin N. Lorenzana of the Department of National Defense (DND) on July 11, 2016 to prepare the groundwork for the interment. Secretary Lorenzana thus issued on August 7, 2016 the assailed Memorandum directing General Ricardo R. Visaya, Chief of Staff of the Armed Forces of the Philippines (AFP), to "kindly undertake the necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security requirements" for the interment, and to "[c]oordinate closely with the Marcos family regarding the date of interment and the transport of the late former President's remains from Ilocos Norte to the LNMB." In turn, General Visaya commanded Deputy Chief of Staff of the AFP Rear Admiral Emesto C. Enriquez to implement the Memorandum, and this Rear Admiral Enriquez did by transmitting on August 9, 2016 his own directive to the Commanding General of the Philippine Army to proceed with the interment and to provide "all necessary military honors accorded for a President."
These events expectedly invited protests from various sectors. The petitioners herein then initiated these consolidated special civil actions in this Court to advance a common cause to prevent the interment of the remains of President Marcos in LNMB because of the many human rights violations committed during his long regime that included the period when he placed the whole country under Martial Law. They mainly insisted that interring the remains of President Marcos in the LNMB would desecrate the shrine that was intended only for heroes.
The following should explain my vote.
First of all, the foregoing antecedents render it quite evident to me that the interment of the remains of President Marcos in the LMNB is a matter that exclusively pertains to the discretion of President Duterte as the Chief Executive. The character of the LMNB as the resting place for the war dead and other military personnel under the care and control of the AFP has placed the LMNB under the control of the President. Plainly enough, the President thereby exercised such control through the AFP Chief of Staff.
In the context of the LNMB being a military facility, the AFP has issued AFP Regulations G 161-375 to prescribe guidelines that enumerate the persons whose remains may be interred therein, to wit:
I must observe that the factual milieu in these cases is different from that in the case in which the Court addressed and decided the question of whether or not the President of the Philippines had validly acted in prohibiting the return of the family of President Marcos to the country. In the latter case, the Court ruled that when political questions were involved, the Constitution limited the determination to whether or not grave abuse of respondent public official.[2] The foremost consideration then was that the return of the Marcoses could dangerously impact on the nation's peace and security. That impact is not imminent today.
Secondly, the several laws the petitioner have invoked to prevent the interment are not relevant to the LNMB. The main opinion fully explains why this is so. I agree.
For instance, Republic Act No. 289, which all the petitioners except the petitioners in G.R. No. 226120 rely upon, stipulated the establishment of the National Pantheon as the final resting place for former Presidents of the Philippines, national heroes and patriots to perpetuate their memory as sources of inspiration and emulation for the future generations. On the basis of this law, the petitioners concerned quickly assert that the remains of the late President Marcos do not deserve to be interred in the LNMB because his gross human rights violations, massive corruption and plunder of the government coffers, and other abuses during his regime rendered his memory unworthy of perpetuation and because he could not be a source of inspiration and emulation for future generations. Yet, the Solicitor General has clarified that the LNMB is not the National Pantheon referred to by Republic Act No. 289. Indeed, Proclamation No. 431 (Reserving as Site for the Construction of the National Pantheon a Certain Parcel of Land Situated in Quezon City) would locate the National Pantheon in East Avenue, Quezon City, but the establishment of the National Pantheon was later on discontinued. In contrast, the LNMB is the former Republic Memorial Cemetery as expressly provided in Executive Order No. 77 (Transferring the Remains of War Dead Interred at Bataan Memorial Cemetery, Bataan Province and at the Other Places in the Philippines to the Republic Memorial Cemetery at Port WM MicKinley, Rizal Province). The Republic Memorial Cemetery was reserved as the final resting place for the war dead of World War II, but President Magsaysay renamed it to LNMB on October 27, 1954. The history of the LNMB refutes the petitioners' reliance on Republic Act No. 289. Verily, the LNMB is not the same as the National Pantheon.
Republic Act No. 10368 has also been cited by the petitioners. This law recognizes the victims of Martial Law and makes reparations for their sufferings by appropriating P10,000,000,000.00 as compensation for them. How such law impacts on the interment of the remains of President Marcos has not been persuasively shown.
The petitioners have not laid out any legal foundation for directly testing the issuance of the challenged executive issuances. They have not cited any specific provision of either the Constitution or other existing laws that would expressly prohibit the interment in the LNMB of the remains of one like President Marcos.
And, thirdly, AFP Regulations G 161-375 lists those who are disqualified to have their remains interred in the LNMB, to wit:
[1] G.R. No. 225973, G.R. No. 226117,and G.R. No. 226120 are petitions for certiorari and prohibition; G.R. No. 225984 and G.R. No. 226097 are petitions for prohibition; and G.R. No. 226116 prays for the issuance of the writs of mandamus and prohibition.
[2] Marcos v. Manglapus, G.R. No. 88211 September 15, 1989, 177 SCRA 668, 696.
SEPARATE OPINION
PEREZ, J.:
The factual and procedural antecedents are not in dispute.
On 25 February 1986, during the snap election term of Ferdinand Marcos Sr., the EDSA People Power Revolution transpired. With US aid, the Former President, together with his family, was forced into exile. On 28 September 1989, he died in Honolulu, Hawaii. Two weeks before his death, the Supreme Court upheld then sitting President Corazon Aquino's firm decision to bar the return of the Marcos family.[1] In a statement, President Aquino said:
During his campaign for president in the 2016 national elections, candidate Rodrigo R. Duterte publicly declared that he will cause the burial of the former President in the Libingan ng mga Bayani (LNMB). After his election as president, President Rodrigo R. Duterte ordered the implementation of his campaign declaration. On 11 July 2016, President Duterte verbally directed Marcos' burial in the LNMB. In compliance with the verbal order, Secretary of National Defense Delfin N. Lorenzana issued a Memorandum dated 7 August 2016, addressed to General Ricardo R. Visaya, Chief of Staff of the AFP, directing him to "undertake the necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security requirements"[6] and to "coordinate closely with the Marcos family regarding the date of interment and the ransport of the late former President's remains from Ilocos Norte to the LNMB."[7] Conforming to the 7 August 2016 Memorandum, AFP Chief of Staff General Visaya instructed Deputy Chief of Staff for Reservist and Retiree Affairs Rear Admiral Ernesto C. Enriquez to issue a directive addressed to the Philippine Army.[8] According to the 9 August 2016 Directive, the Army is required to provide vigil, bugler/drummer, firing party, military host/pallbearers, escort and transportation, and arrival and departure honors.[9]
Five different petitions, praying for a Temporary Restraining Order to restrain respondents from proceeding with the burial were filed and consolidated. Petitioners likewise sought the nullification of the 7 August 2016 Memorandum and the 9 August 2016 Directive, and a permanent prohibition from allowing the interment of the remains of Former President Marcos at the Libingan ng mga Bayani.
The first petition (Ocampo petition) was filed on 15 August 2016 by Saturnino C. Ocampo, Trinidad G. Repuno, Bienvenido Lumbera, Bonifacio P. Hagan, Neri Javier Colmenares, Maria Carolina P. Araullo, all of whom alleged that they were human rights violations victims and members of the class suit in the human rights litigation against the Estate of Ferdinand Marcos in MDL No. 840, CA No. 88-0390 in the US Federal District Court of Honolulu, Hawaii. The Samahan ng Ex-Detainees Laban sa Detensyon at Aresto (SELDA), an organization of political prisoners and former political detainees in the country, also took part in the petition.
The second petition (Lagman petition) was also filed on 15 August 2016 by Rep. Edcel C. Lagman, Rep. Teddy Brawner Baguilat, Jr., Rep. Tomasito S. Villarin, Rep. Edgar R. Erice, Rep. Emmanuel A. Billones, and the Families of Victims of Involuntary Disappearance (FIND). The incumbent members of the House of Representatives sued as legislators with duties including the protection of appropriated funds from being misused for void, illegal and improvident activities.
The third petition (Rosales petition) was filed on 19 August 2016 by the former chairperson of the Commission on Human Rights, Loretta Ann Paragas-Rosales; Hilda B. Narciso; Aida F. Santos-Maranan; Jo-Ann Q. Maglipon; Zenaida S. Mique; Fe B. Mangahas; Ma. Cristina P. Bawagan; Mila D. Aguilar; Minerva G. Gonzales; Ma. Cristina V. Rodriguez; Francisco E. Rodrigo, Jr.; Louie G. Crismo; Abdulmari De Leon Imao, Jr.; and Liwayway D. Arce. All the petitioners sued as victims of allegedly State sanctioned human rights violations during Martial Law.
The fourth petition (Alvarez petition) was filed on 22 August 2016 by Former Senator Heherson T. Alvarez; Joel C. Lamangan, a martial law victim; Francis X. Manglapus; Edilberto C. De Jesus; Belinda O. Cunanan; Cecilia G. Alvarez; Rex De Garcia Lores; Arnold Marie Noel Sr.; Carlos Manuel; Edmund S. Tayao; Danilo P. Olivares; Noel F. Trinidad; Jesus Dela Fuente; Rebecca M. Quijano; Fr. Benigno Beltran, SVD; Roberto S. Verzola; Augusto A. Legasto, Jr.; Julia Kristina P. Legasto, all of whom came to court Filipino citizens and tax payers.
The fifth petition (Baniaga petition) was filed on 22 August 2016 by Zaira Patricia B. Baniaga, John Arvin Buenaagua, Joanne Rose Sace Lim, and Juan Antonio, also as Filipino citizens and taxpayers.
The Respondents are Honorable Salvador C. Medialdea, in his capacity as the Executive Secretary of the Republic of the Philippines; Honorable Delfin N. Lorenzana, in his capacity as the Secretary of the Department of National Defense; General Ricardo R. Visaya, in his capacity as Chief of Staff of the Armed Forces of the Philippines; Rear Admiral Ernesto C. Enriquez, in his capacity as Deputy Chief of Staff for Reservist and Retiree Affairs of the Armed Forces of the Philippines; Lt. Gen. Ernesto G. Carolina (Ret.), in his capacity as Administrator of the Philippine Veterans Affairs Office (PVAO); and the heirs of Marcos.
All the contentions espoused by the five petitions pivot around the alleged grave abuse of discretion committed by public respondents when they allowed the burial of the remains of the Former President Marcos at the Libingan ng mga Bayani.
All the petitioners argue that the Memorandum and Directive for the burial mock and are in contravention of Republic Act No. 289 (An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes and Patriots of the Country), which petitioners argue created the Libingan ng mga Bayani. They cite Section 1 of the statute that the purpose of the construction of the National Pantheon is "to perpetuate the memory of all presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn."[10] The petitioners contend that the Former President's transgressions against the Filipino people hardly make him an inspiration and do not make him worthy of emulation by this generation and the next.[11] The petitioners further aver that the public respondents had no authority to allow the burial, considering that only members of the Board of the National Pantheon may cause to be interred therein the mortal remains of all presidents, national heroes, and patriots.[12] The Board is composed of the Secretary of Interior, Secretary of Public Works and Communications, and the Secretary of Education, and two private citizens to be appointed by the President of the Philippines with the consent of the Commission on Appointments.[13]
Petitioners who took part in the Ocampo, Lagman and Rosales petitions maintain that the Memorandum and the Directive are inconsistent with Republic Act No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013), a law which serves as an indubitable validation by the Legislative and Executive departments of the widespread human rights violations attributable to the late President Marcos under his martial law regime.[14] In their petitions, great weight is attributed to Section 2 of the law, which reads:
The Ocampo, Rosales, and Alvarez petitions attack the constitutionality of the Memorandum and Directive. Petitioners therein contend that a burial at the Libingan ng mga Bayani will amount to a denial of the history of authoritarian rule and a condonation of the abuses committed by the Marcos Regime.[18] For those who took part in the Rosales petition, burying the Former President at the Libingan ng mga Bayani, a place supposedly for heroes and patriots, is to desecrate the raison d'etre of the 1987 Constitution.[19] That the burial of the Former President at the Libingan ng Bayan runs counter to judicial pronouncements is another argument raised in the Rosales and the Lagman petitions. In support of such argument, judicial decisions of the Philippine Supreme Court, as well as foreign courts, which established the culpability of Former President Marcos for human rights atrocities and plunder were cited.[20]
The Baniaga and the Alvarez petitions advance a related argument, with petitioners therein maintaining that the Memorandum and Directive are violative of the Faithful Execution Clause of the 1987 Constitution.[21] Citing Article VII Section 17 of the Constitution, petitioners argue that President Duterte, acting through his alter ego, respondent Sec. Lorenzana, would not be faithfully executing R.A. No. 10368 and R.A. No. 289 by burying Former President Marcos in the Libingan ng mga Bayani.[22] The Baniaga petition likewise argues that the Memorandum and Directive violate the equal protection guaranteed by the Constitution,[23] given that the Former President is in a different class from the other Presidents already buried in the Libingan ng mga Bayani.
Tackling the issue from a broader perspective, the parties who took part in the Rosales petition maintain that a burial at the Libingan ng mga Bayani violates the international duties of the Philippines to combat impunity and to guarantee non-repetition of violations of international human rights law.[24] Petitioners insist that allowing the burial could potentially hinder and violate human rights victims' remedies and could lead to a distortion of the findings of previous authorities thus, creating an injustice to the victims rightly afforded a remedy from the Former President's actions.[25] For the petitioners, such injustice would put the Philippines in violation of the International Covenant on Civil and Political Rights, specifically Section 2 thereof, viz:
Finally, for those who took part in the Ocampo, Lagman, and Rosales petitions, even if it be conceded that Former President Marcos is qualified under the law and the AFP Regulation, whatever benefits and courtesies due him have already been waived and contracted away by the Marcos family when they agreed to bury him in Batac, Ilocos Norte pursuant to their agreement with then President Fidel V. Ramos. It was likewise submitted that the 1993 Agreement should be treated as a compromise agreement that was voluntarily entered into by the Philippine Government and the Marcos family, making it the law between the parties.[28] Stated otherwise, petitioners contend that respondents are bound to observe the terms of the Agreement as it is a binding contract between the parties. Petitioners insist that the High Court should take judicial notice of such Agreement as it was an official act of the Executive Department.[29] Moreover, it is averred that an abandonment of the Agreement, a reboot of the entire process, by allowing the burial at the Libingan ng mga Bayani is tantamount to reliving the terror and horrors of the victims.[30]
I join the opinion to dismiss the consolidated petitions for the issuance in their favor and against the respondents, of the special writ of certiorari. President Rodrigo R. Duterte did not gravely abuse his discretion, was neither whimsical nor capricious when upon assumption of the office to which he was elected he forthwith proceeded to implement his election promise to have the remains of the late President Ferdinand E. Marcos buried in the Libingan ng mga Bayani.
This position is fixed and firmed by the ongms of the petitions so impressively presented in the petition itself in G.R. No. 225973:
Significantly, petitioners further admitted that they, as "the various sectors" participated in the election of options and met with opposition the pronouncements favoring the Libingan as burial of Marcos' remains and protested the public pronouncements of the promisor.
Thus did the petitioners admit that the determination of the issue can be, if not ought to be, left to the will of the people. True to the admission, petitioners sought to forge that will into the shape they hoped for. The petitioners objected against the publicly announced Marcos Libingan burial; they protested the pronouncement. Indeed the issue was made public and was resolved through a most political process, a most appropriate process: the election of the President of the Republic.[32] A juxtaposition of two concepts, people and suffrage, show this. In his treatise, as old as it is respected, Dean Vicente Sinco expounds:
As things are, it is hardly debatable that, by word and deed, petitioners have accepted that the issue they now, after losing the vote, present before the Court is a political issue, defined over and over again, by variations of phrases that have one meaning:
There was reference to the nitpicked significance of "majority" in the definition of "people" the argument being that the 16,601,997 votes in favor of the promising candidate is not the majority of the total number of those who voted for the position. What makes the observation specious is the fact that it was only candidate Duterte who made the serious and specific promise of a Libingan burial for Marcos. The other four candidates for president were unclear about their preference. The votes for the four cannot be definitely counted as against the burial.
Referring to the variety of the electoral issues, there were those who submit that not all those who voted for Duterte did so because they favored the burial of Marcos at the Libingan. It is contended that the votes for Duterte were determined by items in his platform other than the burial issue. That may be plausible; but what cannot be questioned is that Duterte did not lose because of his burial pronouncement.
It was urged that the Libingan allowance was not a commitment to the nation, not a principled promise, a mere propaganda pitch. Thus, was the issue sought to be reduced as a promise made to be broken, treacherous trap for undiscerning electors. That the allegations are unfounded is clearly shown by the prefatory phrase in the memorandum[36] of respondent Secretary of National Defense Delfin N. Lorenzana to respondent Gen. Ricardo R. Visaya, AFP:
Quite obviously, the petitions were submitted because the petitioners did not prevail in the political exercise that was the National Elections of 2016. Right away, we have the reason why the petitions should be dismissed. The petitions with premises and prayer no different from those that were publicly debated, for or against, between and among the people including petitioners themselves proceeding to a conclusion unacceptable to them, cannot be pursued in lieu of the failed public submission.
Adamant in their position, petitioners nonetheless went to Court with their cause now in legal clothing. Still, petitioners cannot thereby bring the matter within the adjudication of the Court.
There was heavy reference to R.A. No. 10368, titled "An Act Providing for Reparation and Recognition of Victims of Human Rights Violations during the Marcos Regime, Documentations of Said Violations, Appropriating Funds Therefor And For Other Purposes." Notably, the petitioners, as they described themselves, are the same persons for whose favor the statute was enacted; the reasons they mention in their petition consisting of the provisions of the Constitution and of the international agreement are the same reasons mentioned in Section 2 of the statute in the "Declaration Policy." Quite specifically the statute defines "Human Rights Violation" as any act or omission committed during the period from September 21, 1972 to February 25, 1986 carried out pursuant to the declaration of Martial Law by former President Ferdinand E. Marcos including warrantless arrest, ASSO, PCO, PDA, torture, killing, involuntary disappearances, illegal takeover of business, confiscation of property, sexual offenses and "analogous" abuses. And, it is provided that Human Rights Violations Victim (HRVV) refers to a person whose human rights were violated by persons acting in an official capacity and to qualify for reparations "the human rights violation must have been committed during the period from September 21, 1972 to February 25, 1986".
Clearly, as proclaimed human rights victims, they squarely fall under the definition of R.A. No.10368. For the same reasons and basis that they are now before this Court, petitioners have already, by the proper political body, been given the recognition and reparation due them, in specific, direct and detailed provisions that even include the creation of a Human Rights Victims' Claims Board to implement the recognition and reparation granted to them by statute.
R.A. No. 10368 is a complete law. It has defined their rights, not just for reparation for damages suffered as HRV's but also they will have by the law their names enshrined in a Roll of Human Rights Victims. A Memorial/Museum/Library shall be established in their Honor. A compendum of their sacrifice shall be prepared and be readily viewed in the internet. There will even be a Human Rights Violations Victims' Memorial Commission. The definition of what their rights are limits any further inclusions except, perhaps, through the same legislative action. There too is significance in the "sunset clause" of the law which states that the Human Rights Victims' Claims Board shall complete its work within two years from the effectivity of the IRR promulgated by it, after which it shall become functus officio. By its concrete and definite terms, R.A. No. 10368 is a completed exercise of legislative wisdom. The Court cannot allow the collected petitions at bar to interfere with that wisdom.
The urgings for judicial action inspite of the limits of R.A. No. 10368 can be gleaned from the presentation by petitioners during the oral arguments. They testified on the details of their suffering during the term of President Ferdinand E. Marcos and pleaded that the burial of Marcos at the Libingan ng mga Bayani would "retraumatize" them. They supported the claim and prayer with the submission that their suffering accompanied by the other commission of Marcos, was a national experience that became sovereign contempt culminating in a revolt against Marcos and eventually the "constitutionalization" of both sin and sinner. Hence, the prayer that the allowance of the burial at the Libingan ng mga Bayani of the constitutionalized offender is in grave abuse of discretion.
Relative to the petitioners' prayer, an explanation was made by the Solicitor General:
Whether the policy of healing and reconciliation "over and above the pain and suffering of the human rights victims" is in grave abuse of executive discretion or not is answered by the evidently substantial Marcos vote during the fresh and immediately preceding national elections of 2016. The election result is a showing that, while there may have once been, there is no longer a national damnation of President Ferdinand E. Marcos; that the "constitutionalization" of the sin and its personification is no longer of national acceptance. A Marcos vote came out of the elections, substantial enough to be a legitimate consideration in the executive policy formulation. To go back, a Libingan Burial for Marcos was a promise made by President Duterte, which promise was opposed by petitioners, inspite of which opposition, candidate Duterte was elected President.
All in all, the redemp ion of an election pledge and the policy which has basis in the result of the election, cannot be tainted with grave abuse of discretion. As things are the issue presented by the petitioners should not even be touched by the Court since it is a political question already resolved politically.
I vote to DISMISS the consolidated petitions before this Court.
[1] Marcos v. Manglapus, G.R. No. 88211, 27 October 1989.
[2] Id.
[3] Alvarez petition, p. 10
[4] Id.
[5] Ocampo petition, p. 6.
[6] Memorandum issued by Secretary of National Defense Delfin N. Lorenzana dated 7 August 2016.
[7] Id.
[8] Ocampo petition, p. 8.
[9] Id.
[10] Section 1 of R.A. No. 289 (An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National heroes and Patriots of the Country).
[11] Lagman Petition, p. 12; Alvarez Petition, p. 31.
[12] Baniaga Petition, p. 10.
[13] Sec. 2, R.A. No. 289.
[14] Lagman Petition, p. 15.
[15] Sec. 2 R.A. No. 10368.
[16] Lagman Petition, p. 16.
[17] Ocampo Petition, p. 21, Lagman Petition, p. 12.
[18] Rosales Petition, p. 20.
[19] Id. at 29.
[20] Lagman Petition, p. 17; Rosales Petition, p. 37, Rosales Petition, pp. 37-44.
[21] Baniaga Petition, p. 14.
[22] Id. at 14; Alvarez Petition, p. 11.
[23] Id. at 13.
[24] Rosales Petition, p. 60.
[25] Id. at 62.
[26] Baniaga Petition, p. 11; Rosales Petition, p. 37; Ocampo Petition, p. 15.
[27] Ocampo Petition, p. 25.
[28] Rosales Petition, p. 68.
[29] Id. at 67.
[30] Ocampo Petition, p. 26.
[31] Section 4, Rule 129 of the Revised Rules of Court:
Section 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.
A party may take judicial admissions in (a) the pleadings, (b) during the trial, either by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding. (Spouses Binarao v. Plus Builders, Inc., G.R. No. 154430, June 16, 2006).
[32] Rodrigo R. Duterte garnered a total of 16,601,997 votes; 6,623,822 votes more than his closest rival Mar Roxas who got 9,978,175 votes. The rest of the candidates got the following votes:
[34] Id. at 402-403.
[35] Tañada v. Cuenco, G.R. No. L-10520, 28 February 1957.
[36] Annex "A" (Petition in G.R. 225984).
[37] TSN of Oral Arguments, Wednesday 7 September 2016 10:00 a.m.
DISSENTING OPINION
LEONEN, J:
I dissent.
Under our constitutional order, Presidents, unlike kings, earn their honors. As Presidents are public servants, their position in itself should not be the basis to glorify them. Neither should their place in history be determined by a succeeding President. Only the sovereign Filipino People deserve to determine a President's place in history.
Given the present state of our Constitution, our laws, and our jurisprudence, it is illegal for the remains of Ferdinand E. Marcos to be interred at the Libingan ng mga Bayani. The Filipino People do not deserve such a symbolism.
Former President Ferdinand E. Marcos presided over a regime that caused untold sufferings for millions of Filipinos. Gross violations of human rights were suffered by thousands. The public coffers contributed to by impoverished Filipinos were raided. Ferdinand E. Marcos stood by as his family, associates, and cronies engaged in systematic plunder. The national debt ballooned during his regime.
He was eventually ousted by a public uprising. His regime and the abuses he committed during that time led to a complete rethinking of our constitutional order. The 1987 Constitution embeds most of our experiences during Martial Law. It was a reaction to the failures of governance of Ferdinand E. Marcos and his cohorts.
Ferdinand E. Marcos is no hero. He was not even an exemplary public officer. He is not worthy of emulation and inspiration by those who suffer poverty as a result of the opportunity lost during his administration, by those who continue to suffer the trauma of the violations to the human dignity of their persons and of their families. He is certainly not worthy of emulation and inspiration by those in public service, including the lawyers, judges, and justices who simply want to do what is right, protect others, and conscientiously and diligently protect public funds entrusted to them.
If we are true to the text and spirit of our Constitution and our laws as well as our history, Ferdinand E. Marcos cannot be buried at the Libingan ng mga Bayani. The proposal that he be accorded public honor is contrary to law. It is a betrayal of the Filipino spirit.
Rodrigo Roa Duterte's discretion as President is "not unconfined and vagrant" but always "canalized within banks that keep it from overflowing."[1] His alleged verbal orders to cause the interment of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani were whimsical, capricious, a grave abuse of discretion, and issued only to please a single family. Ferdinand E. Marcos invented most of his medals as a soldier. He was one of our worst Presidents.
National healing cannot simply come when the President pronounces it. It can only come through a process that leads to social justice. Justice requires accountability. Justice does not come with just forgetting. Accountability involves the recognition of the place of the perpetrator and the victim.
The victims of Martial Law, who stood by their principles and spoke to power, who were detained, made to disappear, tortured, killed, molested, and raped, were the heroes. They are the "bayani." By law, they are our heroes.
Ferdinand E. Marcos was the perpetrator. He is not the "bayani." The perpetrator cannot be a hero at the same time that his victims are heroes. This is cruel and illogical. This is impunity. This is an assurance that our People will suffer the same gross violations of human rights and plunder.
Our laws are not illogical. If they are, then they will be the cause of injustice. If our laws are unreasonable, then they will violate the "due process of law." Certainly, this Court cannot be party to an illogical and unreasonable interpretation of the law.
Our laws do not allow the burial of the remains of the perpetrator at the Libingan ng mga Bayani for any or all of the following reasons:
First, the President's verbal orders, which were the basis for the issuance of the questioned orders of public respondents, are invalid because they violate Republic Act No. 289. Republic Act No. 289 was never repealed. The law covers the subject of AFP Regulations No. 161-373 (1986),[2] AFP Regulations No. 161-374 (1998),[3] and AFP Regulations No. 161-375 (2000) (collectively, AFP Regulations).[4] Yet, these AFP Regulations ignore the requirements of Republic Act No. 289. Therefore, the basis of the Memorandum[5] of Secretary of National Defense Delfin Lorenzana (Lorenzana Memorandum) and the Directive[6] of Rear Admiral Emesto Enriquez (Enriquez Orders) are ultra vires and, therefore, are null, void, and inexistent.
Second, assuming without accepting that AFP Regulations were valid when issued, still President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders all violate the requirement in Section 1 of Republic Act No. 289 that those buried must have led lives worthy of "inspiration and emulation."
Third, assuming without accepting that the AFP Regulations were valid when issued, public respondents gravely abused their discretion when they failed to show that there was an examination of the sufficiency of the facts that would reasonably lead them to believe that the burial of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani would be in accordance with Republic Act No. 289 or the various Proclamations that identified the location of the Libingan, considering the findings of the National Historical Commission of the Philippines (National Historical Commission), the provisions of our laws including Republic Act No. 10368, and this Court's jurisprudence.
The President's verbal orders do not provide for a definite and complete reason for transferring the remains of Former President Ferdinand E. Marcos from its originally intended site as shown in the agreement signed by Former Secretary Rafael Alunan III (Former Secretary Alunan) and Imelda Marcos to the Libingan ng mga Bayani. It was whimsical, capricious, and an abuse of discretion, and could have been done only to accommodate the private interest of the Heirs of Marcos.
Fourth, the President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders were issued with grave abuse of discretion because they violate Republic Act No. 10368, otherwise known as the Human Rights Victims Reparation and Recognition Act of 2013.
Fifth, the President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders cannot be justified even under the provisions of the Administrative Code of 1987. Given the established circumstances of the Marcos regime and the participation of Ferdinand E. Marcos, there remains no public purpose to the interment of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani.
Sixth, the actions of public respondents are contrary to the President's oath of office because they encourage impunity. Impunity is the result of rewarding the person who presided over human rights violations and who personally participated in the plunder of the public treasury.
I
This case resolves Petitions for certiorari,[7] prohibition,[8] and mandamus:[9] (i) questioning the validity of the verbal orders of President Rodrigo Roa Duterte (President Duterte) to bury Ferdinand E. Marcos at the Libingan ng mga Bayani; (ii) seeking to nullify the Memorandum dated August 7, 2016 issued by Secretary of National Defense Delfin Lorenzana (Secretary Lorenzana) and the Directive dated August 9, 2016 of Rear Admiral Emesto Enriquez (Rear Admiral Enriquez) implementing President Duterte's verbal orders; and (iii) praying for the issuance of a temporary restraining order and/or preliminary injunction.
The facts that frame these consolidated cases are as follows:
After World War II, the Republic Memorial Cemetery was established in Fort William McKinley[10] as a burial place for Filipino soldiers who died during the war.[11] On October 23, 1954, Executive Order No. 77[12] was issued by Former President Ramon Magsaysay (Former President Magsaysay). The Executive Order directed the remains of all Filipino soldiers who died in the war be removed from their places of burial and transferred to the Republic Memorial Cemetery, since "in the national observance of the occasion honoring the memory of those war dead, it is fitting and proper that their remains be interred in one national cemetery."[13]
On October 27, 1954, through Proclamation No. 86, Former President Magsaysay renamed the Republic Memorial Cemetery to Libingan ng mga Bayani as the name "Republic Memorial Cemetery ... is not symbolic of the cause for which our soldiers have died, and does not truly express the nation's esteem and reverence for her war dead."[14]
On May 28, 1967, Former President Ferdinand E. Marcos issued Proclamation No. 208, reserving a portion of land in the Fort Bonifacio Military Reservation for national shrine purposes.[15]
On January 24, 1973, Ferdinand E. Marcos issued Presidential Decree No. 105, declaring national shrines to be hallowed places and punishing their desecration, which included the acts of "disturbing their peace and serenity by digging, excavating, defacing, causing unnecessary noise and committing unbecoming acts within the premises of said National Shrines[.]"[16]
On April 9, 1986, the Armed Forces of the Philippines issued AFP Regulations No. 161-373,[17] which prescribed the allocation of cemetery plots at the Libingan ng mga Bayani. This was amended on March 27, 1998 by AFP Regulations No. 161-374,[18] and then again on September 11, 2000 by AFP Regulations No. 161-375.[19] Both amendments were issued by the Former Secretaries of National Defense.[20]
In 1989, Ferdinand E. Marcos passed away in Hawaii while in exile.[21] Thereafter, in 1992, Former President Fidel V. Ramos (Former President Ramos), on behalf of government, signed an agreement with the Marcos Family pertaining to the return of Ferdinand E. Marcos' remains.[22] Under this agreement, the Marcos Family was allowed to fly Ferdinand E. Marcos' remains to the Philippines from Hawaii, subject to the following conditions: (1) that Ferdinand E. Marcos' remains would be flown straight from Hawaii to Ilocos Norte; (2) that Ferdinand E. Marcos would only be given honors befitting a major of the Armed Forces of the Philippines; (3) that his remains would not be permitted to be paraded around Metro Manila; and (4) that the burial would be done in Ilocos Norte, and not at the Libingan ng mga Bayani.[23]
However, before signing the agreement, and without informing any representative of government, Imelda R. Marcos crossed out the word "buried" and replaced it with the words "temporarily interred."[24] Former Secretary Alunan, during the Oral Arguments on August 31, 2016, stated that this was viewed by Former President Ramos as a sign of bad faith:
On July 11, 2016, President Duterte gave verbal orders to respondent Secretary Lorenzana to carry out the interment of Ferdinand E. Marcos at the Libingan ng mga Bayani.[28]
In response to President Duterte's pronouncements, the National Historical Commission published a study entitled "Why Ferdinand Marcos Should Not Be Buried at the Libingan ng mga Bayani"[29] on July 12, 2016.[30] The National Historical Commission reported that Ferdinand E. Marcos' military records were not deserving of the honors that would be bestowed upon him should he be buried at the Libingan ng mga Bayani as they were "fraught with myths, factual inconsistencies, and lies." In particular, the National Historical Commission found that:
Thus, on August 12, 2016, the Armed Forces of the Philippines, through its Army Chief of Public Affairs, issued a press release entitled "Army receives interment directive for former Pres. Marcos." The press release stated that the Philippine Army had received a directive from Rear Admiral Enriquez under the command of General Visaya for the Marcos burial at the Libingan ng mga Bayani.[35] It stated that under this directive, the Army was required to provide vigil, bugler/drummer, firing party, military host/pallbearers, escort and transportation, as well as arrival and departure honors.[36] It also stated that the Army had designated a protocol officer to coordinate laterally with the Marcos Family regarding the details of the Marcos burial.[37]
President Duterte confirmed in various interviews that he had allowed Ferdinand E. Marcos' interment at the Libingan ng mga Bayani, as this was a promise he had made during his campaign for the presidency.[38]
Thus, petitioners separately filed the present Petitions for certiorari, prohibition, and mandamus, mainly seeking that the execution of the Executive Department's decision to allow the burial of Ferdinand E. Marcos at the Libingan ng mga Bayani be reversed, set aside, and enjoined.[39] After respondents filed their respective Comments, oral arguments were held on August 31 and September 7, 2016. The parties then filed their respective Memoranda.
II
The AFP Regulations are ultra vires. They violate Republic Act No. 289, which is still an existing law. Therefore, the verbal orders of the President, the Lorenzana Memorandum, and the Enriquez Orders based on the AFP Regulations are null and void.
Republic Act No. 289[40] creates a National Pantheon "to perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn[.]"[41] The National Pantheon is, by law, intended to be the "burial place of their mortal remains."[42] Thus:
The Libingan ng mga Bayani, similar to the National Pantheon, is there to hold the remains and "perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and generations still unborn."
Republic Act No. 289 does not specify what the name of the National Pantheon shall be. The Libingan ng mga Bayani may not be called the "National Pantheon," but nothing in Republic Act No. 289 prohibits naming the National Pantheon as the Libingan ng mga Bayani.
Republic Act No. 289 does not specify where the National Pantheon is to be located. Under Republic Act No. 289, the suitable site is yet to be determined by a Board, who has the duty:
Wherever the mortal remains of Presidents of the Philippines, national heroes, and patriots are buried is, thus, the burial place envisioned by the legislature, subject to the provisions of Republic Act No. 289.
The space where the Libingan ng mga Bayani is now located was once the Republic Memorial Cemetery, which initially served as burial grounds for the war dead.[45]
Prior to the law's enactment, in 1947, the Republic Memorial Cemetery was established as a burial ground for soldiers who died during World War II.
While Republic Act No. 289 was effective and apparently without the action of the Board of National Pantheon, Former President Magsaysay issued Executive Order No. 77, transferring the remains of the war dead to the Republic Memorial Cemetery:
On October 27, 1954, Former President Magsaysay issued Proclamation No. 86, changing the name of the Republic Memorial Cemetery to express the nation's esteem and reverence for those buried in the cemetery, the war dead:
On July 12, 1957, Former President Carlos P. Garcia issued Proclamation No. 423, which reserved for military purposes, under the administration of the Chief of Staff of the Armed Forces of the Philippines, certain parcels of land in Pasig, Taguig, Parañaque, Province of Rizal, and Pasay City.[46] Under this Proclamation, the Armed Forces of the Philippines issued various regulations expanding the scope of the types of individuals who could be buried at the Libingan ng mga Bayani. Thus, the nature of what once was the Republic Memorial Cemetery changed further. The most recent AFP Regulations, AFP Regulations No. 161-375 (2000), invoked by public respondents, reads:
As admitted by the Solicitor General, the Armed Forces of the Philippines has determined that those who have contributed to society, despite not having served as soldiers, may be buried at the Libingan ng mga Bayani:
Unlike for national artists, the expansion of the coverage of the Libingan ng mga Bayani is without cover of law and, in some cases, contrary to Republic Act No. 289. For instance, the inclusion of widows of Former Presidents or widows of Former Secretaries of National Defense at the Libingan ng mga Bayani has no purpose and is contrary to the nature of the Libingan.
The change of its name from Republic Memorial Cemetery to Libingan ng mga Bayani and the scope of individuals that could be buried through subsequent AFP Regulations are operative facts that put the cemetery under the coverage of Republic Act No. 289. What once may have been a military cemetery has been converted, over time, into what is the National Pantheon envisioned by the legislature when it passed Republic Act No. 289.
It is true that in 1953, Proclamation No. 431, entitled Reserving as Site for the National Pantheon a Certain Parcel of Land Situated in Quezon City, reserved a parcel of land in Quezon City for the construction of the National Pantheon. However, this was subsequently revoked by Proclamation No. 42, entitled Revoking Proclamation Nos. 422 and 431, Both Series of 1953, and Reserving the Parcels of Land Embraced Therein Situated in Quezon City for National Park Purposes to be Known as Quezon Memorial Park. There is no National Pantheon in Quezon City.
The revoked attempt to locate the National Pantheon in Quezon City does not amend Republic Act No. 289. Quezon City is not a definitive part of the National Pantheon, and Proclamation No. 431 is wholly irrelevant to the validity of Republic Act No. 289.
The ponencia suggests that the lack of appropriation from Congress for the creation of a National Pantheon shows a "legislative will not to pursue" the establishment of a National Pantheon. It further suggests that "[p]erhaps, the Manila North Cemetery, the Manila South Cemetery, and other equally distinguished private cemeteries already serve the noble purpose but without cost to the limited funds of the government."[53]
The failure to provide appropriation for a law does not repeal the law. Moreover, the failure to provide the appropriate budget for the execution of a law is a violation of the President's duty to faithfully execute all laws. Certainly, the lack of appropriation does not suspend standards laid down by the legislature in a valid and subsisting law.
The legislative policy in Republic Act No. 289 includes delegating the powers related to the National Pantheon to a specially constituted board composed of the Secretary of the Interior, the Secretary of Public Works and Communications, the Secretary of Education, and two (2) private citizens appointed by the President, with the consent of the Commission on Appointments (Board).[54] Under Republic Act No. 289, it is the Board-not the President directly nor the Secretary of National Defense-that has the power to perform all the functions necessary to carry out the purposes of the law.[55]
The Board is statutorily empowered to, among others:
In public respondents' opening statement, the Solicitor General argues that the provisions of Republic Act No. 289 do not apply to the Libingan ng mga Bayani because Republic Act No. 289 is a "defunct law," established by the clear expressions of the legislative and executive will to abandon Republic Act No. 289 altogether, namely: (1) the inaction on the part of Congress, (2) the withdrawal of the reservation of land for the Pantheon by President Magsaysay.[56]
This is not a valid legal argument.
A law cannot be repealed by inaction or tradition. Neither can a law be repealed by a President. A President who does not follow a law is a President that violates his or her duties under the Constitution.
Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, custom, or practice to the contrary. This Court has repeatedly held that only a law can repeal another law,[57] and a law subsists when it has not been repealed nor expressly amended by any other law.[58] Likewise, "repeals by implication are not favored and will not be decreed, unless it is manifest that the legislature so intended."[59]
No law has been passed amending or repealing Republic Act No. 289, and no manifest intention on the part of the legislature to repeal Republic Act No. 289 has been shown. It cannot be disputed; therefore, Republic Act No. 289 is a valid and binding law.
Further, the effectivity of a law cannot be made to depend on a future event or act. Otherwise, it would "rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know." In Securities and Exchange Commission v. Interport Resources Corporation:[60]
The majority's position is that Republic Act No. 289 can be simply ignored by the President. The President, however, will gravely abuse his discretion when he does.
The Solicitor General insists that the disparate histories of the site of the Libingan ng mga Bayani and Republic Act No. 289 reveal that the two are unrelated. Hence, the provisions of Republic Act No. 289 do not apply to the Libingan ng mga Bayani.[62]
The Solicitor General starts with a narration of the history of the land where the Libingan ng mga Bayani, as nothing but a renamed Republic Memorial Cemetery,[63] intended only to be a national military cemetery for the interment of those who died during the war.[64] He then proceeds to insist that the Libingan ng mga Bayani has been operating as a military shrine and cemetery.[65] In his view, the National Pantheon, on the other hand, was never constructed.[66] Its intended site was in Quezon City under Proclamation No. 431.[67] However, in 1954, this site was later withdrawn under Proclamation No. 42.[68]
The Solicitor General implies that simply because Proclamation No. 431 was later withdrawn by another presidential proclamation, the law has ceased to become effective.
The Solicitor General then argues that the standards laid down in Republic Act No. 289 do not apply to the Libingan ng mga Bayani. Public respondents point out that the standards under Republic Act No. 289 are not stated in any of the issuances pertinent to the Libingan ng mga Bayani, namely: Proclamation No. 208, Presidential Decree No. 1076, or Executive Order No. 292.[69] Thus, as the National Pantheon was never constructed, public respondents claim that "the clear inference is that former President Marcos and President Corazon Aquino did not intend to adopt said standards for those to be interred at the Libingan ng mga Bayani."[70]
The position of the Solicitor General is legally untenable and logically unsound. Presidents who do not follow the law do not repeal that law. Laws can only be repealed by a subsequent law. Again, that Republic Act No. 289 was ignored in the past does not give legal justification for the present administration to likewise violate the law.
Republic Act No. 289 does not specify the location of the National Pantheon. It could be anywhere. The defining characteristic of the National Pantheon is that it shall be the burial place of the Presidents of the Philippines, national heroes, and patriots.[71]
The AFP Regulations, on the other hand, provide that the remains of the following may be buried at the Libingan ng mga Bayani: (1) Medal of Valor Awardees; (2) Presidents or Commanders-in-Chief of the Armed Forces of the Philippines; (3) Secretaries of National Defense; (4) Chiefs of Staff of the Armed Forces of the Philippines; (5) General flag officers of the Armed Forces of the Philippines; (6) Active and retired military personnel of the Armed Forces of the Philippines; (7) Veterans of the Philippine Revolution of 1896, World War I, World War II, and recognized guerrillas; (8) government dignitaries, statesmen, national artists, and other deceased persons whose interment or re-interment has been approved by the Commander-in-Chief, Congress, or the Secretary of National Defense; and (9) Former Presidents, Secretaries of Defense, CSAFP, generals/flag officers, dignitaries, statesmen, national artists, widows of former Presidents, Secretaries of National Defense, and Chiefs of Staff.[72]
A plain reading of the AFP Regulations reveals that although it does not refer to Republic Act No. 289, it nonetheless provides for the burial of individuals who would properly be covered by Republic Act No. 289. The AFP Regulations define a burial place, which is the burial place provided for under Republic Act No. 289.
The executive cannot avoid carrying out a valid and subsisting law by passing regulations substantially covering a matter that is already a law and excuse itself from complying with the law on the premise that it-a law that the executive never implemented-is now defunct.
Under Republic Act No. 289, only the Board is authorized to set aside portions of the National Pantheon where the remains of the Presidents of the Philippines, national heroes, and patriots shall be interred,[73] to cause to be interred in the National Pantheon the mortal remains of Presidents of the Philippines, national heroes, and patriots,[74] and to perform such other functions as may be necessary to carry out the purposes of this law.[75]
Having been issued by Secretary Lorenzana, General Visaya, and Rear Admiral Enriquez without the authority of the Board, the General Lorenzana Memorandum and the Enriquez Orders are void for being ultra vires.
III
Assuming without accepting that respondents Secretary Lorenzana, General Visaya, and Rear Admiral Emiquez had the authority to determine who may be interred at Libingan ng mga Bayani, the Lorenzana Memorandum and the Enriquez Orders are nonetheless invalid.
Under Section 1 of Republic Act No. 289, those buried at the Libingan ng mga Bayani must have led lives worthy of "inspiration and emulation."
Ferdinand E. Marcos does not meet this standard.
Our jurisprudence clearly shows that Ferdinand E. Marcos does not even come close to being one who will inspire. His example should not be emulated by this generation, or by generations yet to come.
Ferdinand E. Marcos has been characterized as an authoritarian by this Court in nine (9) Decisions[76] and 9 Separate Opinions.[77] He was called a dictator in 19 Decisions[78] and 16 Separate Opinions.[79] That he was unceremoniously deposed as President or dictator by a direct act of the People was stressed in 16 Decisions[80] and six (6) Separate Opinions.[81] This Court has also declared that the amount of US$658,175,373.60, in Swiss deposits under the name of the Marcoses, was ill-gotten wealth that should be forfeited in favor of the State.[82]
For instance, a powerful portrait of the despotic power exercised by Marcos during Martial Law was presented in Dizon v. Eduardo:[83]
Then, in Republic v. Sandiganbayan,[97] this Court declared that the funds were proven to belong to the Marcos Family and were consequently ill-gotten wealth:
IV
In Republic Act No. 10368, a legislative determination was made regarding the gross human rights violations committed during the Marcos regime:
The human rights victims and the violations under the Marcos regime are so numerous that the legislature created a Human Rights Victims' Claims Board, dedicated to effectively attain the objectives of Republic Act No. 10368. The Board is now adjudicating 75,730 claims of human rights victims for reparation and/or recognition under Republic Act No. 10368.[100]
V
Petitioner Algamar A. Latiph points out that among the many gross human rights violations perpetrated under the Marcos regime were those inflicted on the Moro civilian population. These atrocities were committed by government forces, as well as by state-affiliated armed groups. The more infamous of these are: (1) the Jabidah Massacre, where government forces allegedly executed at least 23 Muslim recruits;[101] (2) the Burning of Jolo, where the massive aerial and naval bombardments and a ground offensive against the MNLF forces resulted in the destruction of two-thirds of Jolo and, thus, thousands of refugees;[102] (3) the Malisbong Massacre, where paramilitary forces were responsible for killing about 1,500 Moro men and boys who were held in a local mosque and killed, an unknown number of women and girls were raped offshore on a naval vessel, and around 300 houses were burned.[103]
Lesser known but equally deplorable atrocities alleged to have been committed by government forces during the Marcos regime included the Tran Incident and the Tong Umapuy Massacre. These were reported by the Transitional Justice and Reconciliation Commission:[104]
Her sister, petitioner Ma. Cristina Pargas Bawagan, testified that she was beaten, raped, and sexually abused:
Petitioner Hilda Narciso testified that she was raped and sexually abused:
Petitioner Liwayway Arce testified that during the Marcos regime, her father was killed, and her mother was tortured and sexually abused:
Petitioner Atty. Neri Colmenares recounted having lost four (4) years of his life as a young student leader to imprisonment, during which various forms of torture were used on him:
Petitioner Trinidad Herrera Repuno testified that she was a member of the informal settlers' sector and was also a victim of torture:
VI
Contemporarily, even the National Historical Commission took a clear position against the interment of Ferdinand E. Marcos at the Libingan ng mga Bayani.
The National Historical Commission was established by law as "the primary government agency responsible for history"[115] given the mandate "to determine all factual matters relating to official Philippine history."[116]
Among others, it is given the task to:
In these statutory capacities, the National Historical Commission published its study entitled "Why Ferdinand Marcos Should not be Buried at the Libingan ng mga Bayani" on July 12, 2016.[120]
The study was based on the declassified documents in the Philippine Archives Collection of the United States National Archives/National Archives and Records Administration and the websites of pertinent United States government agencies and some officially sanctioned biographies of Ferdinand E. Marcos. It concluded that:
VII
Assuming without accepting that Republic Act No. 289 authorized public respondents to determine who has led a life worthy of "inspiration and emulation," and assuming further that it was under this authority that they directed Ferdinand E. Marcos' interment, the President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders were still issued with grave abuse of discretion because they were whimsical and capricious.
Considering the state of existing law and jurisprudence as well as the findings of the National Historical Commission, there was no showing that respondents conducted any evaluation process to determine whether Ferdinand E. Marcos deserved to be buried at the Libingan ng mga Bayani.
Respondents' actions were based upon the President's verbal orders, devoid of any assessment of fact that would overcome what had already been established by law and jurisprudence.
The Solicitor General can only state that:
The capriciousness of the decision to have him buried at the Libingan ng mga Bayani is obvious, considering how abhorrent the atrocities during Martial Law had been. Likewise, the effects of the Marcos regime on modem Philippine history are likewise too pervasive to be overlooked.
The Filipino People themselves deemed Marcos an unfit President and discharged him from office through a direct exercise of their sovereign power. This has been repeatedly recognized by this Court.
In Lawyers League for a Better Philippines v. Aquino:[126]
The three petitions obviously are not impressed with merit. Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but is in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government.
Moreover, the sentiment of the sovereign People, reacting to the blight that was the Marcos dictatorship, was enunciated in Proclamation No. 3:
VIII
Republic Act No. 10368, otherwise known as the Human Rights Victims Reparation and Recognition Act of 2013, contains a legislative finding that gross human rights violations were committed during the Marcos regime. It provides for both the recognition of the sufferings of human rights victims as well as the provision for effective remedies.
Recognition of human rights and of the goal of achieving social justice is a primordial shift in our constitutional order. This shift was occasioned by the experiences of our society during Martial Law. This is evident in some discussions in the Constitutional Convention.
Commissioner Edmundo Garcia, speaking on the necessity of a Commission on Human Rights, emphasized:
IX
In part, to implement these safeguards for human rights, Republic Act No. 10368 was passed. Its statement of policy is found in Section 2:
Section 2 of Republic Act No. 10368 likewise acknowledges the State's moral and legal obligation to recognize and provide reparation to the victims and/or their families for the deaths, injuries, sufferings, deprivations, and damages they suffered under the Marcos regime. The State also expressly acknowledged the sufferings and damages inflicted upon: (i) persons whose properties or businesses were forcibly taken over, sequestered or used; (ii) those whose professions were damaged and/or impaired; (iii) those whose freedom of movement was restricted; and/or (iv) such other victims of the violations of the Bill ofRights.[131]
The bases of these policies[132] are found in the Constitution. Section 11 of Article II of the 1987 Constitution provides:
Under the Bill of Rights, Article III, Section 12 (2) and (4) of the Constitution provides:[134]
This law provides for the process of recognition of Martial Law victims.[138] There are victims who are allowed to initiate their petitions,[139] those who are conclusively presumed,[140] and those who may be motu proprio be recognized by the Board[141] even without an initiatory petition.
Republic Act No. 10368 codifies four (4) obligations of the State in relation to the Martial Law regime of Ferdinand E. Marcos:
First, to recognize the heroism and sacrifices of victims of summary execution, torture, enforced or involuntary disappearance, and other gross violations of human rights;
Second, to restore the honor and dignity of human rights victims;
Third, to provide reparation to human rights victims and their families; and
Fourth, to ensure that there are effective remedies to these human rights violations.
Based on the text of this law, human rights violations during the "regime of former President Ferdinand E. Marcos covering the period from September 21, 1072 to February 25, 1986" are recognized. Despite his claim of having won the snap elections for President in 1985, Ferdinand E. Marcos was unceremoniously spirited away from Malacanang to Hawaii as a result of the People's uprising now known as "People Power." The legitimacy of his ouster from power was subsequently acknowledged by this Court in Lawyers' League for a Better Philippines and in In re Saturnino Bernardez, which were both decided in 1986.
This recognition of human rights violations is even clearer m the law's definition of terms in Republic Act No. 10368, Section 3(b):
Burying the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani violates Republic Act No. 10368 as the act may be considered as an effort "to conceal abuses during the Marcos regime" or to "conceal ... the effects of Martial Law."[145] Its symbolism is unmistakable. It undermines the recognition of his complicity. Clearly, it is illegal.
X
"Libingan ng mga Bayani" is a label created by a presidential proclamation. The Libingan ng mga Bayani was formerly known as the Republic Memorial Cemetery. In 1954, under Proclamation No. 86, the Republic Memorial Cemetery was renamed to Libingan ng mga Bayani for symbolic purposes, to express esteem and reverence for those buried there:
If there was no intention to bestow any recognition upon Ferdinand E. Marcos as a hero, then he should not be buried at the Libingan ng mga Bayani. If the President wanted to allot a portion of public property to bury Ferdinand E. Marcos without according him the title of a hero, the President had other options. The President had the power to select a different cemetery where Marcos was to be buried.
Likewise, before ordering the interment, the President did not amend the name through his own presidential proclamation. Therefore, the intent to bury him with honors is clearly legible, totally unequivocal, and dangerously palpable.
Having the remains of Ferdinand E. Marcos in a national shrine called the Libingan ng mga Bayani undeniably elevates his status. It produces an indelible remark on our history. It commingles his name and his notorious legacy with the distinctively heroic and exemplary actions of all those privileged to be buried there.
The transfer of Ferdinand E. Marcos' remains violates the policy of full and public disclosure of the truth. It produces an inaccurate account of the violations committed. It will fail to educate all sectors of society and all generations of the human rights violations committed under his watch. It is a violation of the fundamental statutory policy of recognition of the human rights violations committed during the Marcos regime.
As pointed out by the Commission on Human Rights:
The act of burying in itself has always been more than an act of disposing of dead bodies. A burial is a manner of memorializing and paying respects to a deceased person. Implicit in these ceremonies is the preservation of the memory of the person for his good or valiant deeds.
This cultural practice is not limited to private persons. The same practice applies when it is the State burying the deceased person. The act of burying a body under the sanction of the State means that it is the State itself paying its respects to the dead person and memorializing him or her for his or her good and valiant deeds. It is never done to remember past transgressions. Thus, burials are acts of honoring. And when the burial is state-sanctioned, it is the State that honors the deceased person.
This is more emphasized when the place of interment is the Libingan ng mga Bayani. Again, whether or not one subscribes to the idea that the Libingan nga mga Bayani is a cemetery for the country's heroes, from the public's perspective, those buried at the Libingan ng mga Bayani are respected, revered, admired, and seen with high regard. To say otherwise is ridiculous. Although not all who are buried at the Libingan ng mga Bayani are recognized by the public, the public recognizes the distinction of being buried there. Those who are and will be buried there are accorded honors not only by their own families, but by the State itself.
It is impossible for the State to bury Ferdinand E. Marcos at the Libingan ng mga Bayani without according him, or his memory, any honor.
Given these considerations, the transfer of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani violates Republic Act No. 10368. It is inconsistent with the State's public policies as stated in Republic Act No. 10368.
In Avon Cosmetics, Inc. v. Luna,[147] this Court discussed the meaning and relevance of public policy:
It is not the President alone who determines the State's policies. The President is always bound by the Constitution and the State's statutes and is constitutionally mandated to "ensure that the laws be faithfully executed."[150] To execute laws, the President must faithfully comply with all of them. He cannot ignore the laws for a particular group of people or for private interests. The President cannot ignore the laws to execute a policy that he determined on his own. He cannot ignore the laws to fulfill a campaign promise that may or may not have been the reason why he won the People's votes. Thus, the President is bound to comply with and execute Republic Act No. 10368.
Republic Act No. 10368's state policies are again as follows:
First, to recognize the heroism and sacrifices of all Filipinos who had been victims of summary execution, torture, enforced or involuntary disappearance, and other gross human rights violations committed during the regime of Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986; and
Second, to restore the victims' honor and dignity.
The nature of Ferdinand E. Marcos' burial at the Libingan ng mga Bayani contravenes these public policies. The State's act of according any honor to Ferdinand E. Marcos grossly contradicts, and is highly irreconcilable with, its own public policies to recognize the heroism and sacrifices of the Martial Law victims and restore these victims' honor and dignity.
To allow Ferdinand E. Marcos' burial is inconsistent with honoring the memory of the Martial Law victims. It conflicts with their recognized heroism and sacrifice, and as most of them testified, it opens an avenue for their re-traumatization. These victims' honor, which the State avowed to restore, is suddenly questionable because the State is also according honor and allotting public property to the person responsible for their victimization. The victims' state recognition is put into doubt when the President decided to act favorably towards the person who victimized them.
XI
Public respondents' contention that Ferdinand E. Marcos will not be buried as a hero, but only as a President, soldier, and Medal of Valor Awardee, fails to convince:
The claim that he is being buried only as a President, soldier, and Medal of Valor awardee is a fallacy. When a person is buried, the whole person is buried, not just parts of him or her. Thus, if government buries and honors Ferdinand E. Marcos' body as the body of a former soldier, it will, at the same time, be burying and honoring the body of a human rights violator, dictator, and plunderer. It is impossible to isolate the President, soldier, and Medal of Valor awardee from the human rights violator, dictator, and plunderer.
XII
Apart from recogmzmg the normative framework and the acknowledgment of human rights violations during the Marcos regime, the law likewise acknowledges the State's obligation that "any person whose rights or freedoms have been violated shall have an effective remedy."[152]
This right to an "effective remedy" is available even if "the violation is committed by persons acting in an official capacity."[153]
With the recognition of human rights victims of Martial Law, the Board created by Republic Act No. 10368 may provide "awards."[154] Although this award has a monetary value,[155] other duties for government are likewise provided by law. There can be nonmonetary reparation:
The law also requires the documentation of the human rights violations committed during the Marcos regime:
The requirements of effective remedies beyond monetary compensation are also supported by jurisprudence. In Department of Environment and Natural Resources v. United Planners Consultants, Inc.:[158]
Except for the Hague Convention of 1907, the Philippines has ratified all of these international conventions.[170] The contents of the Hague Convention of 1907 already form part of customary international law embodying much of the foundation of international humanitarian law. All the obligations in these treaties are already part of our laws.
We take a closer look at the International Convention on Civil and
Political Rights (ICCPR). Part II, Article 2, Section 3 provides:
The Basic Principles does not entail new international obligations. The document only identifies "mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary through different as to their norms."[172]
Under the Basic Principles, the dignity of victims must be respected, and their well-being ensured. The State must take measures to safeguard that its laws protect the victims from re-traumatization:
Thus, Compensation for violations committed is not enough without the victim's satisfaction. Satisfying and compensating the victim is not enough unless there is a guarantee against non-repetition. This requires a legal order that can address these violations, as well as a cultural and educational system that allows remembrance of its occurrences.[174] It also requires a state that does what it can to guarantee non-repetition of these offenses.
These are essential to "guarantee full respect for human rights."[175] Article 2, Section 11 of the Constitution provides that "[t]he State values the dignity of every human person. It guarantees full respect of human rights."[176]
This provision is not a mere guide or suggestion. It requires the positive act of the State to guarantee full respect of human rights. Moreover, the State, with all its branches and instrumentalities including this Court, must provide this guarantee. When this state policy is invoked, the State cannot shy away from recognizing it as a source of right that may be affected by government actions.
The reparation due to the victims should not be solely monetary. In addition to the compensation provided under Republic Act No. 10368, the State must restitute, rehabilitate, satisfy, and guarantee non-repetition to victims.
Pertinent to issues raised by the victims of the Marcos regime is the reparation in the form of Satisfaction and Guarantee of Non-Repetition. The Basic Principles is clear that Satisfaction must include a "public apology, including acknowledgement of the facts and acceptance of responsibility," "judicial and administrative sanctions against persons liable for the violations," and an "inclusion of an accurate account of the violations that occurred ... in educational material at all levels."
The Guarantee of Non-Repetition requires the State to "provide, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society," and "review and reform laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law."
The transfer of the remains of Ferdinand E. Marcos negates all these aspects of Satisfaction and Guarantee of Non-Repetition. There has been no sufficient public apology, full acknowledgement of facts, or any clear acceptance of responsibility on the part of Ferdinand E. Marcos or his Heirs. Neither was Ferdinand E. Marcos sanctioned specifically for human rights violations. Now that he is dead, the victims can no longer avail themselves of this recourse. To add insult to this injury, the President decided to acknowledge the heroic acts and other favorable aspects of Ferdinand E. Marcos, the person primarily responsible for these human rights violations. This affects the accuracy of the accounts of the violations committed on the victims. It reneges on the State's obligation to provide human rights education and humanitarian law education to the Filipino People. It contributes to allowing violations of international human rights law and encourages impunity. If the State chooses to revere the person responsible for human rights violations, the perception of its People and the rest of the world on the gravity and weight of the violations is necessarily compromised.
Allowing Ferdinand E. Marcos' burial under the pretense of the President's policy of promotion of national healing and forgiveness lowers the victims' dignity and takes away from them their right to heal in their own time. Allowing the Marcos burial on the premise of national healing and forgiveness is a compulsion from the State for the victims and the Filipino People to forgive their transgressor without requiring anything to be done by the transgressor or his successors, and without even allowing the victims to be provided first the reparations granted to them by law.
Despite the conclusive presumption accorded to some of these human rights victims, they have still been unable to claim the reparations explicitly granted to them by Republic Act No. 10368. Meanwhile, Ferdinand E. Marcos is awarded forgiveness and accorded state funds and public property to honor him as a Former President and a military man. This is not the effective remedy contemplated by law.
XIII
To allow the Marcos burial is diametrically opposed to Republic Act No. 10368. The stated policies are clear. These must be applied, and applied in its entirety-in accordance with its spirit and intent:
Nonetheless, assuming the AFP Regulations are valid, Republic Act No. 10368 has amended them such that they disallow any governmental act that conflicts with the victims' right to recognition and reparation. Section 31 of Republic Act No. 10368 provides:
XIV
Assuming the AFP Regulations remain the governing regulation over the Libingan ng mga Bayani, Ferdinand E. Marcos is still disqualified from being interred there. It can be inferred from the list of disqualifications that those who have committed serious crimes, something inherently immoral, despite having served the country in some way, are not "bayani" deserving to be interred at the Libingan ng mga Bayani.
Associate Justice Diosdado M. Peralta contends that Ferdinand E. Marcos is not disqualified from being interred at the Libingan ng mga Bayani under the AFP Regulations as he was neither convicted of an offense involving moral turpitude nor dishonorably discharged from active military service. This argument is hinged on the constitutional provision that a person shall not be held to answer for a criminal offense without due process of law and the presumption of innocence in all criminal prosecutions.[183]
It is true that the presumption of innocence applies in criminal prosecutions. Nonetheless, relying on the presumption of innocence to allow Ferdinand E. Marcos to escape the consequence of his crimes is flimsy.
First, this is not a criminal prosecution, and the rights of the accused do not apply. Second, Ferdinand E. Marcos' innocence is not in issue here. Even public respondents do not insult petitioners by arguing that Ferdinand E. Marcos is not complicit and responsible for the atrocities committed during his dictatorship. Third, an invocation of the presumption of Ferdinand E. Marcos' innocence is a rejection of the legislative findings of Republic Act No. 10368 and of this Court's own pronouncements in numerous cases.
The issue at hand is whether Ferdinand E. Marcos is someone who should be honored and emulated.
There is no presumption of innocence when it comes to determining one's fitness to be buried at the Libingan ng mga Bayani. Moreover, as Ferdinand E. Marcos is a public officer, the standards are high. Article XI of the Constitution provides the basic rules that must be followed by all public officers:
XV
The Solicitor General claims that the provision in the Administrative Code of 1987 is the government's legal basis for the instructions to bury the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani:
The Solicitor General cites Manosca v. Court of Appeals[184] and City of Manila v. Chinese Community of Manila.[185] These cases provide little assistance to their case.
The Solicitor General claims that "recognizing a person's contribution to Philippine history and culture is consistent with the requirement of public use."[186] Yet, he acknowledges on behalf of government that Martial Law was part of the "dark pages" of our history. Thus, in his Consolidated Comment:
In Marcos v. Manglapus,[188] which was decided in 1989, this Court acknowledged that Ferdinand E. Marcos was "a dictator"[189] who was "forced out of office and into exile after causing twenty years of political, economic and social havoc in the country."[190] This Court recognized the immediate effects of the Marcos regime:
Considering Ferdinand E. Marcos' disreputable role in Philippine history, there can be no recognition that serves the public interest for him. There is no legitimate public purpose for setting aside public land at the Libingan ng mga Bayani-definitely a national shrine-for him.
Manosca states the standard that governmental action to favor an individual or his or her memory will only be allowed if it is to recognize the person's laudable and distinctive contribution to Philippine history or culture. Ferdinand E. Marcos' leadership has been discredited both by statutory provisions and jurisprudence. He has contribution that stands out and that should be validly recognized.
It is disturbing that what appears to be the underlying cause for the interment of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani is the fulfillment of a campaign promise by President Duterte to the Heirs of Marcos. This dovetails with petitioners' manifestation that campaign contributions were made by the Heirs of Marcos. Promised acts of a political candidate to a family to further personal political ambition at the cost of the public's welfare cannot be considered as the public purpose required by the Administrative Code of 1987.
XVI
The exercise of the President's powers may not be justified by invoking the executive's residual powers.
An exercise of the President's residual powers is appropriate only if there is no law delegating the power to another body, and if there is an exigency that should be addressed immediately or that threatens the existence of government. These involve contingencies that cannot await consideration by the appropriate branches of government.
In Gonzales v. Marcos,[197] this Court recognized the residual power of the President to administer donations specifically in the absence of legislative guidelines. This Court stressed that it was necessary that the executive act promptly, as time was of the essence:
This is not the situation in these consolidated cases. As discussed, there are laws violated. At the very least, there was no urgency. There was no disturbance to the public peace.
XVII
I disagree with Associate Justice Jose P. Perez's view that the issue relating to the transfer of the remains of Ferdinand E. Marcos was already resolved through the political process of the election of the President of the Philippines.[205] In his view, the issue had already been presented to the public during the campaign season, and President Duterte was elected despite petitioners' opposition. Thus, he concludes that the sovereign has subscribed to the policy promised by President Duterte.[206] In other words, he is of the opinion that the People decided that Ferdinand E. Marcos should be buried at the Libingan ng mga Bayani because President Duterte did not lose.[207]
Associate Justice Perez suggests that the President-elect's acts to effectuate his campaign promises may no longer be questioned by any party, regardless of whether it is contrary to the Constitution, laws, and public policy, regardless of whether he obtained the votes of the majority, and regardless of whether he acted with grave abuse of discretion amounting to lack or excess of jurisdiction.[208] He takes the position that any act of the President to fulfill his electoral promise will be deemed legitimate because the People have supposedly chosen him as their President.[209]
I cannot agree to this dangerous proposition. We are a constitutional democracy: a State under the rule of law.
The number of votes obtained by the President does not determine whether the Constitution or the laws will or will not apply. The Constitution is not suspended on account of the election of a President who promised a particular policy. We elect a President whom we expect to implement political platforms given the existing state of the law. The process of election is not a means to create new law. The process of creating law is provided in Article VIII of the Constitution. Neither should the elections for President be the process for amending the Constitution. The process for amending the Constitution is provided in Article XVII of the same Constitution.
Furthermore, the President is tasked to execute the law-not create it. It is the legislative branch that determines state policies through its power to enact, amend, and repeal laws. Thus, it is dangerous to assume that the sovereign voted for the President to "ratify" policies he promised during his campaign.
In other words, under our constitutional order, we elect a President subject to the Constitution and the current state of the law. We do not, through the process of elections, anoint a king.
Moreover, the theory that a campaign promise becomes policy is an abdication of the judiciary's duty to uphold the Constitution and its laws.
Article VIII, Section 1 of the Constitution provides:
Associate Justice Perez's Concurring Opinion is founded upon the premise that the transfer of the remains of Ferdinand E. Marcos is a question of policy to be determined by the People, outside the scope of this Court's power of judicial review. He claims that the matter is a political question. Unfortunately, the allegations of an infringement upon a fundamental individual or collective right and grave abuse of discretion on the part of another branch of government, which were properly pleaded by petitioners, were not addressed.
Recently, in Diocese of Bacolod v. Commission on Elections:[210]
XVIII
Similarly, I cannot agree with the conclusions of Associate Justice Arturo D. Brion with respect to the interpretation of Article VIII, Section 1 of the Constitution.
Associate Justice Brion opines that this Court's expanded jurisdiction under the Constitution does not empower this Court to review allegations involving violations and misapplication of statutes.[212] He claims that the remedies available to petitioners are those found in the Rules of Court, which address errors of law.[213] He claims that this Court can only check whether there is grave abuse of discretion on the part of another branch or instrumentality of government when there is a violatioh of the Constitution.[214] Necessarily, petitioners must have shown that there is prima facie evidence that the President violated the Constitution in allowing the Marcos burial.[215] He insists that the Court's authority, under its expanded jurisdiction, is limited to determining the constitutionality of a governmental act. Grave abuse of discretion from violations of statutes cannot be made a matter of judicial review under this Court's expanded jurisdiction.
Associate Justice Brion's interpretation proceeds from the theory that there is a hierarchy of breach of the normative legal order and that only a breach of the Constitution will be considered grave abuse of discretion.
In my view, this reading is not supported by the text of tht provision or by its history.
Article VIII, Section 1 of the Constitution is clear. This Court is possessed of the duty to exercise its judicial power to determine whether there is grave abuse of discretion amounting to lack or expess of jurisdiction by any branch or instrumentality of government. This provision does not state that this Court may exercise its power of judicial review exclusively in cases of violations of the Constitution.
An illegal act is an illegal act, no matter whether it is illegal as a result of the violation of a constitutional provision or a violation of valid and existing law. It is the exercise of discretion that must be subjected to review, and it is the discretion of any branch or instrumentality of government. Nothing in the Constitution can lead to the conclusion that a violation of a statute by the President is not a grave abuse of discretion.
This jurisdiction to determine whether there is grave abuse of discretion amounting to lack or excess jurisdiction of any t branch of government is a new provision under the 1987 Constitution. It was added as a safeguard from abuses of other branches of government, which were justified under the doctrine of political question. In Francisco, Jr. v. House of Representatives:[216]
Regretfully, Associate Justice Brion's position ignores the legal issues presented by petitioners, which involve a question of the.proper exercise of constitutional powers: whether the President may use his executive power to order the transfer of the remains of Ferdinand E. Marcos' to the Libingan ng mga Bayani burial despite the rights invoked by petitioners and other particular provisions in the Constitution, statutes, and public policy.
Definitely, there is an actual case or controversy ripe for judicial review. Recalling a position in Spouses Imbong v. Ochoa, Jr.:[218]
Petitioners invoke a violation of their existing legal rights, among which is their right as victims of human rights violations committed during the Marcos regime. They invoke an act from the executive branch, which allegedly violates their rights and was allegedly committed with grave abuse of discretion amounting to lack or excess of jurisdiction. On the other hand, respondents insist on the President's right to exercise his executive discretion on who may or may not be buried at the Libingan ng mga Bayani. Thus, a conflict of rights must be determined by this Court in accordance with the Constitution and statutes. This Court's ruling on the matter will not be merely advisory; on the contrary, it shall be binding among the parties and shall be implemented with force and effect. Thus, there is an actual case or controversy.
XIX
Associate Justice Peralta contends that petitioners have no locus standi because they failed to show any direct suffering or personal injury that they have incurred or will incur as a result of Ferdinand E. Marcos' burial.[220]
I cannot agree.
The requirement of locus standi requires that the party raising the issue must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result."[221]
In Public Interest Center, Inc. v. Roxas:[222]
Several petitioners allege that they are human rights victims during the Marcos regime who had filed claims under Republic Act No. 10368. In their Petitions, they claim that respondents' questioned acts affect their right to reparation and recognition under Republic Act No. 10368 and international laws. As petitioners have an interest against Ferdinand E. Marcos and have claims against the State in connection with the violation of their human rights, petitioners are vested with material interest in the President's act in allowing the Marcos burial at the Libingan ng mga Bayani.
In any case, the rule on standing has been relaxed "when the matter is of transcendental importance, of overreaching significance to society, or of paramount public interest."[224] In In Re Supreme Court Judicial Independence v. Judiciary Development Fund:[225]
The ponencia states that petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts,[227] which essentially espouse the principle that no direct resort to this Court is allowed when there are other plain, speedy, and adequate remedies.
However, there are exceptions to this rule, as restated in Diocese of Bacolod:
These exceptions are present in these consolidated cases. First, these cases involve reviewing the act of another constitutional organ, that is, the President's exercise of discretion in allowing Ferdinand E. Marcos' burial at the Libingan ng mga Bayani. Second, these Petitions raise constitutional questions that would be better decided by this Court, as well as issues relating to public policy that may be beyond the competence of the lower courts. These cases are likewise of first impression, and no jurisprudence yet exists on this matter. Thus, the Petitions cannot be dismissed by invoking the doctrine of hierarchy of courts and exhaustion of administrative remedies.
XX
Grave abuse of discretion is committed when the President violates his or her own oath of office. Thus, in Article VII, Section 5 of the 1987 Constitution:
In Almario, the President's proclamation of several national artists was nullified because several rules, guidelines, and processes of the National Commission on Culture and the Arts and the Cultural Center of the Philippines were disregarded. This Court declared that the actions of the President, contrary to the spirit of these rules, constituted grave abuse of discretion:
XXI
The ponencia's characterization of Ferdinand E. Marcos as "just a human who erred like us"[232] trivializes the magnitude of the suffering that he inflicted on scores of Filipinos.
Ferdinand E. Marcos' "errors" were not errors that a President is entitled to commit. They were exceptional in both severity and scale. They were inhuman acts.
Ferdinand E. Marcos provided the atmosphere of impunity that allowed the molestations, rape, torture, death, and disappearance of thousands of Filipinos. Ferdinand E. Marcos was the President who, rather than preserve and protect the public trust, caused untold anguish upon thousands of Filipino families. Their trauma, after all these years, still exists.
Ferdinand E. Marcos plundered the nation's coffers. The systematic plunder was so exceptional and outrageous that even after being ousted, he and his family brought more than P27,000,000.00 in freshly printed notes, 23 wooden crates, 12 suitcases and bags, and various boxes of jewelry, gold bricks, and enough clothes to fill 57 racks[233] with them to their exile in Hawaii.
These were not accidents that humans, like us, commit. These were deliberate and conscious acts by one who abused his power. To suggest that Ferdinand E. Marcos was "just a human who erred like us" is an affront to those who suffered under the Marcos regime.
To suggest that these were mere errors is an attempt to erase Ferdinand E. Marcos' accountability for the atrocities during Martial Law. It is an attempt to usher in and guarantee impunity for them as well as for those who will commit the same in the future.
It is within the power of this Court to prevent impunity for gross violations of human rights, systematic plunder by those whom we elect to public office, and abuse of power at the expense of our toiling masses. We should do justice rather than characterize these acts as the "mere human error" of one whom We have characterized as a dictator and an authoritarian.
XXII
Interpreting the law is not mere power. It is not simply our personal privilege.
Judicial review is an awesome social responsibility that should always be discharged with the desire to to learn from history and to do justice. Social justice will not come as a gift. It is a product of the constant, conscious, and determined effort to understand our society and do what is right. Justice will not come when we insist that we should decide behind a veil of ignorance. Precisely, our expanded jurisdiction in the present Constitution contains our People's command for this Court not to forget that never again should this Court be blind to reality.
The reality is that the retelling of the story of Martial Law is agonizing to many who went through the ordeal. Reliving it for eternity, with the transfer of the remains of he who is responsible for the ordeal to the sacred grounds of the Libingan ng mga Bayani, will permanently cause untold anguish to the victims.
The mother who stood by her principles but was tortured, molested, or raped during Martial Law will now have to explain to her daughter why he who allowed that indignity to happen is now at the Libingan ng mga Bayani.
The family of the father or the mother or the son or the daughter or the nephew or niece or cousin who disappeared will have extreme difficulty accepting that the remains of Ferdinand E. Marcos-the President who was Commander-in-Chief and who had control over all those who wielded state coercion during Martial Law-is buried in a place that implies that he is a hero. They will have to explain to themselves, with the pain and anguish that they still suffer, why the most powerful man who was unable to help them find their kin is granted honors by this State.
Those who will celebrate this country's pride every year with the commemoration of People Power or the EDSA Revolution will also live with the contradiction that the remains of the President they ousted for his abuses is now interred at the Libingan ng mga Bayani.
National healing cannot happen without the victims' participation and consent.
The decision of the majority to deny the Petitions robs this generation and future generations of the ability to learn from our past mistakes. It will tell them that there are rewards for the abuse of power and that there is impunity for human rights violations. The decision of the majority implies that, learning from the past, our People should be silent and cower in fear of an oppressor. After all, as time passes, the authoritarian and the dictator will be rewarded.
Sooner rather than later, we will experience the same fear of a strongman who will dictate his view on the solutions of his favored social ills. Women will again be disrespected, molested, and then raped. People will die needlessly-perhaps summarily killed by the same law enforcers who are supposed to protect them and guarantee the rule of law. Perhaps, there will be people who will be tortured after they are shamed and stereotyped.
We forget the lessons of the past when we allow abuse to hold sway over the lives of those who seem to be unrelated to us. Silence, in the face of abuse, is complicity.
The burial of Ferdinand E. Marcos at the Libingan ng mga Bayani is not an act of national healing. It cannot be an act of healing when petitioners, and all others who suffered, are not consulted and do not participate. Rather, it is an effort to forget our collective shame of having failed to act as a People as many suffered. It is to contribute to the impunity for human rights abuses and the plunder of our public trust.
The full guarantee of human rights is a fundamental primordial principle enshrined in the Constitution. It is not the antithesis of government.
To deny these Petitions is to participate in the effort to create myth at the expense of history.
Ferdinand E. Marcos' remains, by law, cannot be transferred to the Libingan ng mga Bayani. Ferdinand E. Marcos is not a "bayani."
Ferdinand E. Marcos is not a hero.
ACCORDINGLY, I vote to GRANT the consolidated Petitions.
[1] Almario v. Executive Secretary, 714 Phil. 127, 163 (2013) citing the dissent of J. Cardozo in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) [Per J. Leonardo-de Castro, En Banc].
[2] OSG Comment, Annex 5.
[3] OSG Comment, Annex 6.
[4] OSG Comment, Annex 7.
[5] OSG Memorandum, p. 20.
[6] Id.
[7] Petition (G.R. No. 225973), Petition (G.R. No. 226117) and Petition (G.R. No. 226120).
[8] Petition (G.R. No. 225973), Petition (G.R. No. 225984), Petition (G.R. No. 226097), Petition (G.R. No. 226116), Petition (G.R. No. 226117) and Petition (G.R. No. 226120).
[9] Petition (G.R. No. 226116).
[10] OSG Memorandum, p. 10.
[11] Memorandum (G.R. No. 226097), p. 8.
[12] Transferring the Remains of War Dead Interred at Bataan Memorial Cemetery, Bataan Province and at Other Places in the Philippines to the Republic Memorial Cemetery at Fort WM McKinley, Rizal Province (1954).
[13] Exec. Order No. 77 (1954), 4th whereas clause.
[14] Proc. No. 86 (1954).
[15] Proc. No. 208 (1967).
[16] Pres. Decree No. 105 (1973).
[17] OSG Comment, Annex 5.
[18] OSG Comment, Annex 6.
[19] OSG Comment, Annex 7.
[20] Memorandum (G.R. No. 226097), p. 10.
[21] Id. at 11.
[22] Id.
[23] Id. at 11-12.
[24] Id. at 12.
[25] Id. at 13.
[26] Id. at 13-14.
[27] Id. at 14.
[28] OSG Memorandum, p. 20.
[29] National Historical Commission of the Philippines, Why Ferdinand Marcos Should Not Be Buried at the Libingan ng mga Bayani, July 12, 2016 <https://drive.google.com/file/d/0B9c6mrxI4zoYS2I0UWFENEp6TkU/view> (visited November 7, 2016).
[30] Memorandum (G.R. No. 226097), p. 14.
[31] Id. at 15.
[32] Memorandum (G.R. No. 225973), p. 7; OSG Memorandum, p. 20.
[33] OSG Memorandum, p. 20.
[34] Memorandum (G.R. No. 225973), p. 8.
[35] Id. at 7.
[36] Id. at 8.
[37] Id.
[38] Id.
[39] Id.
[40] An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes and Patriots of the Country.
[41] Rep. Act No. 289, sec. 1.
[42] Rep. Act No. 289, sec. 1.
[43] Rep. Act No. 289, sec. 1.
[44] Rep. Act No. 289, sec. 2(a).
[45] OSG Memorandum, p. 10.
[46] Proc. No. 423 (1957).
[47] OSG Comment, Annex 7.
[48] Exec. Order No. 77 (1954).
[49] Proc. No. 86 (1954).
[50] TSN, Oral Arguments, September 7, 2016, p. 142.
[51] Id. at 57.
[52] Id. at 152.
[53] Ponencia, p. 19.
[54] Rep. Act No. 289, sec. 2.
[55] Rep. Act No. 289, sec. 2.
[56] TSN, Oral Arguments, September 7, 2016, p. 14.
[57] Palanca v. Court of Appeals, G.R. No. 106685, December 2, 1994, 238 SCRA 593, 600-601 [Per J. Quiason, En Banc].
[58] See United States v. Chan, 37 Phil. 78, 84 (1917) [Per J. Torres, En Banc].
[59] National Power Corporation v. Province of Lanao del Sur, 332 Phil. 303, 323 (1996) [Per J. Panganiban, En Banc].
[60] 588 Phil. 651 (2008) [Per J. Chico-Nazario, En Banc].
[61] Id. at 673-675, citing 25 R.C.L., pp. 810, 811.
[62] OSG Memorandum, p. 54.
[63] Id.
[64] Id. at 55.
[65] Id.
[66] Id.
[67] Id. at 54.
[68] Id.
[69] OSG Memorandum, p. 56.
[70] Id.
[71] Rep. Act No. 289, sec. 1.
[72] OSG Comment, Annex 7.
[73] Rep. Act No. 289, sec. 2(a).
[74] Rep. Act No. 289, sec. 2(c).
[75] Rep. Act No. 289, sec. 2(e).
[76] Marcos v. Manglapus, 258 Phil. 479 (1989) [Per J. Cortes, En Banc]; Galman v. Sandiganbayan, 228 Phil. 42 (1986) [Per J. Quisimbing, En Banc]; Fortun v. Macapagal-Arroyo, 684 Phil. 526 (2012) [Per J. Abad, En Banc]; People v. Pacificador, 406 Phil. 774 (2001) [Per J. de Leon, Jr., Second Division]; Buscayno v. Enrile, 190 Phil. 7 (1981) [Per C.J. Fernando, En Banc]; Republic v. Sandiganbayan, 453 Phil. 1059 (2013) [Per J. Puno, En Banc]; Republic v. Villarama, 344 Phil. 288 (1997) [Per J. Davide Jr., Third Division]; Salazar v. Achacoso, 262 Phil. 160 (1990) [Per J. Sarmiento, En Banc]; Biraogo v. Philippine Truth Commission, 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].
[77] J. Gutierrez, Jr., Dissenting Opinion in Marcos v. Manglapus, 258 Phil. 479, 513-526 (1989) [Per J. Cortes, En Banc]; J. Francisco, Concurring and Dissenting Opinion in Dans v. People, 349 Phil. 434, 477-513 (1998) [Per J. Romero, Third Division]; J. Puno, Concurring and Dissenting Opinion in Presidential Ad Hoc Fact-Finding Committee v. Desierto, 375 Phil. 697, 748-754 (1999) [Per C.J. Davide, Jr., En Banc]; J. Vitug, Dissenting Opinion in Ang Bagong Bayani v. Commission on Elections, 412 Phil. 308, 347-356 (2001) [Per J. Panganiban, En Banc]; J. Sarmiento, Dissenting Opinion in In re Umil v. Ramos, 279 Phil. 266, 332-344 (1991) [Per Curiam, En Banc]; J. Davide, Separate Opinion in People's Initiative for Reform, Modernization and Action v. Commission on Elections, G.R. No. 129754, September 23, 1997 [Unsigned Resolution, En Banc]; J. Puno, Separate Opinion in Republic v. Sandiganbayan, 454 Phil. 504, 551-630 (2003) [Per J. Carpio, En Banc]; J. Sarmiento, Dissenting Opinion in Baylosis v. Chavez, 279 Phil. 448, 470-483 (1991) [J. Narvasa, En Banc]; J. Teehankee, Concurring Opinion in Tan v. Commission on Elections, 226 Phil. 624, 648-651 (1986) [Per J. Alampay, En Banc].
[78] Marcos v. Manglapus, 258 Phil. 479 (1989) [Per J. Cortes, En Banc]; Republic v. Sandiganbayan, 565 Phil. 172 (2007) [Per J. Quisimbing, Second Division]; Republic v. Estate of Hans Merzi, 512 Phil. 425 (2005) [Per J. Tinga, En Banc]; Fortun v. Macapagal Arroyo, 684 Phil. 526 (2012) [Per J. Abad, En Banc]; Frivaldo v. Commission on Elections, 255 Phil. 934 (1989) [Per J. Cruz, En Banc]; First Phil. Holdings Corp. v. Trans Middle East Equities Inc., 622 Phil. 623 (2009) [Per J. Chico-Nazario, Third Division]; Associated Bank v. Spouses Montano, 619 Phil. 128 (2009) [Per J. Nachura, Third Division]; National Development Co. v. Philippine Veteran's Bank, 270 Phil. 349 (1990) [Per J. Cruz, En Banc]; Dizon v. Eduardo, 242 Phil. 200 (1988) [Per J. Teehankee, En Banc]; People v. Pacificador, 406 Phil. 774 (2001) [Per J. de Leon, Jr., Second Division]; PNCC v. Pabion, 377 Phil. 1019 (1999) Dissenting Opinion 21 G.R. Nos. 225973, 225984, 226097, 226116, 226117, 226120, and 226294 [Per J. Panganiban, Third Division]; Frivaldo v. Commission on Elections, 327 Phil. 521 (1996) [Per J. Panganiban, En Banc]; Carpio Morales v. Court of Appeals, G.R. No. 217126, November 10, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/november2015/217126-27.pdf> [Per J. Perlas-Bernabe, En Banc]; Heirs of Licaros v. Sandiganbayan, 483 Phil. 510 (2004) [Per J. Panganiban, Third Division]; Philippine Free Press Inc. v. Court of Appeals, 510 Phil. 411 (2005) [Per J. Garcia, Third Division]; Taruc v. Ericta, 250 Phil. 65 (1988) [Per J. Paras, En Banc]; Marcos v. Sandiganbayan, 357 Phil. 762 (1998) [Per J. Purisima, En Banc]; Republic v. Sandiganbayan, 453 Phil. 1059 (2013) [Per J. Puno, En Banc]; Biraogo v. Philippine Truth Commission, 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].
[79] J. Cruz, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 555 (1989) [Per Curiam, En Banc]; J. Padilla, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 556-558 (1989) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 559-560 (1989) [Per Curiam, En Banc]; C.J. Teehankee, Concurring Opinion in Olaguer v. Military Commission. No. 34, 234 Phil. 144, 164-179 (1987) [J. Gancayco, En Banc]; J. David, Dissenting Opinion in Tabuena v. Sandiganbayan, 335 Phil. 795, 878-886 (1997) [J. Francisco, En Banc]; J. Panganiban, Dissenting Opinion in Tabuena v. Sandiganbayan, 335 Phil. 795, 911-913 (1997) [J. Francisco, En Banc]; J. Kapunan, Dissenting Opinion in Lacson v. Perez, 410 Phil. 78, 95-107 (2001) [J. Melo, En Banc]; J. Cruz, Separate Opinion in In Re Umil v. Ramos, 279 Phil. 266, 306-311 (1991) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in In Re Umil v. Ramos, 279 Phil. 266, 332-344 (1991) [Per Curiam, En Banc]; J. Sandoval, Dissenting Opinion in Sanlakas v. Reyes, 466 Phil. 482, 534-548 (2004) [Per J. Tinga, En Banc]; J. Sandoval, Concurring Opinion in Lambino v. Commission on Elections, 536 Phil. 1, 154-186 (2006) [Per J. Carpio, En Banc]; J. Puno, Separate Opinion in Republic v. Sandiganbayan, 454 Phil. 504, 551-630 (2003) [Per J. Carpio, En Banc]; J. Cruz, Dissenting and Concurring Opinion in In Re Umil v. Ramos, 265 Phil. 325, 355 (1990) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in In Re Umil v. Ramos, 265 Phil. 325, 355-365 (1990) [Per Curiam, En Banc]; C.J. Panganiban, Concurring Opinion in David v. Macapagal-Arroyo, 522 Phil. 705, 812-813 (2006) [Per J. Sandoval-Gutierrez, En Banc]; J. Cruz, Dissenting Opinion in Sarmiento v. Mison, 240 Phil. 505, 541-546 (1987) [J. Padilla, En Banc].
[80] Marcos v. Manglapus, 258-A Phil. 547 (1989) [Per Curiam, En Banc]; Republic v. Marcos-Manotok, 681 Phil. 380 (2012) [Per J. Sereno, Second Division]; E. Razon, Inc. v. Philippine Ports Authority, 235 Phil. 223 (1987) [Per J. Fernan, En Banc]; Presidential Commission on Good Government v. Peña, 243 Phil. 93 (1988) [Per C.J. Teehankee, En Banc]; Liwayway Publishing v. Presidential Commission on Good Governance, 243 Phil. 864 (1988) [Per C.J. Teehankee, En Banc]; Quisimbing v. Sandiganbayan, 591 Phil. 633 (2008) [Per J. Carpio-Morales, Second Division]; Samahang Manggawang Rizal Park v. National Labor Relations Commission (1991) [Per J. Cruz, First Division]; Republic v. Sandiganbayan, 499 Phil. 138 (2005) [Per Sandoval-Gutierrez, Third Division]; Phil. Coconut Producers Federation Inc. v. Presidential Commission on Good Governance, 258-A Phil. 1 (1989) [Per J. Narvasa, En Banc]; Cuenca v. Presidential Commision on Good Government, 561 Phil. 235 (2007) [Per J. Velasco Jr., Second Division]; Romualdez v. Regional Trial Court, G.R. No. 104960, September 14, 1993, 226 SCRA 408 [Per J. Vitug, En Banc]; Sison v. People, 320 Phil. 112 (1995) [Per J. Puno, Second Division]; Phil. Overseas Telecom. Corp. v. Africa (2013) [Per J. Bersamin, First Division]; Vinzons-Masagana v. Estrella, 278 Phil. 544 (1991) [Per J. Paras, En Banc]; Republic v. Sandiganbayan, 310 Phil. 402 (1995) [Per C.J. Narvasa, En Banc]; Secretary of Finance v. Ilarde, 497 Phil. 544 (2005) [Per J. Chico-Nazario, En Banc].
[81] C.J. Teehankee, Concurring Opinion in Bataan Shipyard v. Presidential Commission on Good Government, 234 Phil. 180, 238-249 (1987) [Per J. Narvasa, En Banc]; J. Bersamin, Concurring Opinion in Republic v. Cojuanco, 689 Phil. 149, 173-179 (2012) [Per J. Abad, En Banc]; C.J. Teehankee, Concurring Opinion in Tuason v. Register of Deeds, 241 Phil. 650, 663-665 (1988) [Per J. Narvasa, En Banc]; J. Kapunan, Dissenting Opinion in Lacson v. Perez, 410 Phil. 78, 95-107 (2001) [Per J. Melo, En Banc]; J. Teehankee, Concurring Opinion in In re Agcaoili v. Enrile, 226 Phil. 611, 622-624 (1986) [Per J. Narvasa, En Banc]; J. Cruz, Dissenting Opinion in DBP v. Judge Pundogar, G.R. No. 96921, January 29, 1993, 218 SCRA 118 [Per J. Romero, En Banc].
[82] Memorandum (G.R. No. 225973), p. 98, citing Republic v. Sandiganbayan, 454 Phil. 504 (2003) [Per J. Carpio, En Banc].
[83] 242 Phil. 200 (1988) [Per J. Teehankee, En Banc].
[84] Id. at 202-204.
[85] 495 Phil. 372 (2005) [Per J. Tinga, Second Division].
[86] Id. at 375.
[87] 243 Phil. 93 (1988) [Per C.J. Teehankee, En Banc].
[88] Id. at 106-107.
[89] G.R. No. 105090, September 16, 1993, 226 SCRA 499 [Per J. Puno, Second Division].
[90] Id. at 511-512.
[91] 910 F. Supp. 1460 (D. Haw. 1995).
[92] Id. at 4-5.
[93] Rosales Memorandum, p. 104.
[94] 103 F. 3d 762 (9th Cir. 1996).
[95] Id. as cited in Memorandum (G.R. No. 225973), p. 105.
[96] Federal Office for Police Matters v Aguamina Corp., 1A.87/1994/err (Swiss Federal Court, 10 December 1997), cited in Memorandum (G.R. No. 225973), p. 106.
[97] 453 Phil. 1059 (2003) [Per J. Corona, En Banc].
[98] Id. at 1131-1143.
[99] Mercado v. Santos, 66 Phil. 215, 222 (1938) [Per J. Laurel, En Banc].
[100] TSN, Oral Arguments, August 31, 2016, p. 206, Statement of Chairperson Lina Castillo Sarmiento of the Human Rights Victims' Claims Board.
[101] Report of the Transitional Justice and Reconciliation Commission, 31 <http://www.tjrc.ph/skin/vii_tjrc/pdfs/report.pdf> (visited November 7, 2016).
[102] Id.
[103] Id.
[104] Id. The Transitional Justice and Reconciliaton Commission was created through the GPH-MILF negotiation process. It was mandated to undertake a study and, among others, propose appropriate mechanism to address legitimate grievances of the Bangsamoro People, as well as address human rights violations.
[105] Id. at 32.
[106] Id. at 31-37.
[107] TSN, Oral Arguments, August 31, 2016, pp. 200-201.
[108] Id. at 203-204.
[109] Id. at 203.
[110] Id.
[111] Id. at 208-209.
[112] Id. at 209-211.
[113] Id. at 208-212.
[114] Id. at 214-215.
[115] Rep. Act No. 10086, sec. 5.
[116] Rep. Act No. 10086, sec. 5.
[117] Rep. Act No. 10086, sec. 5.
[118] Rep. Act No. 10086, sec. 7(h).
[119] Rep. Act No. 10086, sec. 13.
[120] National Historical Commission of the Philippines, Why Ferdinand Marcos Should Not Be Buried at the Libingan ng mga Bayani, July 12, 2016 <https://drive.google.com/file/d/0B9c6mrxI4zoYS2I0UWFENEp6TkU/view> (visited November 7, 2016).
[121] Id. at 24.
[122] OSG Memorandum, pp. 19-20.
[123] Aries Joseph Hegina, Duterte won't change mind on hero's burial for Marcos, Inquirer.Net, May 26, 2016 <http://newsinfo.inquirer.net/787590/duterte-wont-change-mind-on-heros-burialfor-marcos#ixzz4IQcNtc8X> (visited November 7, 2016).
Fiona Nicolas, Duterte defends hero's burial for Marcos: A matter of enforcing the law, CNN Philippines, August 18, 2016 <http://cnnphilippines.com/news/2016/08/18/duterte-defends-marcosheros-burial-libingan-ng-mga-bayani-enforcing-law.html> (visited November 7, 2016).
[124] TSN, Oral Arguments, September 7, 2016, pp. 8 and 93.
[125] Id. at 8.
[126] G.R. No. 73748, May 22, 1986 <http://elibrary.judiciary.gov.ph/dtSearch/dtisapi6.dll?cmd=getdoc&DocId=142363&Index=%2aaa1de0751c9cff7439815a4b27e3ab58&HitCount=5&hits=4+d+38+71+el+&SearchForm=C%3a%5celibrev%5celibsearch%5cdtform>, as cited in Saturnino V. Bermudez, 229 Phil. 185, 188 (1986) [Per Curiam, En Banc].
[127] Rosales et al., Memorandum (G.R. No. 225973), p. 109.
[128] Id.
[129] Id., citing Closing remarks of the President of the Constitutional Commission at the final session, Official Gazette, October 15, 1986 <http://www.gov.ph/1986/10/15/closing-remarks-of-the-presidentof-the-constitutional-commission-at-the-final-session-october-15-1986> (visited November 7, 2016).
[130] See also Implementing Rules and Regulations of Rep. Act No. 10368, sec. 3(a):
SECTION 3. Declaration of Policy. Consistent with Sections 2 and 11 of Article II, and Section 12 of Article III of the 1987 Constitution of the Republic of the Philippines, and adhering to international human rights law and conventions, it is the declared policy of the State to:
[131] See also Implementing Rules and Regulations of Rep. Act No. 10368, sec. 3(b) and (c):
SECTION 3. Declaration of Policy. - Consistent with Sections 2 and 11 of Article II, and Section 12 of Article III of the 1987 Constitution of the Republic of the Philippines, and adhering to international human rights law and conventions, it is the declared policy of the State to:
. . . .
[132] Rep. Act No. 10368, sec. 2.
[133] Article III of the 1987 Constitution provides for the Bill of Rights. The Bill of Rights was also found in Article 4 of the 1973 Constitution, Article III of the 1935 Constitution; also the Title IV, Political Constitution of the Malolos Constitution and the President McKinley's Instructions of April 7, 1900.
[134] Rep. Act No. 10368, sec. 2.
[135] Rep. Act No. 10368, sees. 8 to 14 provide:
SECTION 8. Creation and Composition of the Human Rights Victims' Claims Board. - There is hereby created an independent and quasi-judicial body to be known as the Human Rights Victims' Claims Board, hereinafter referred to as the Board. It shall be composed of nine (9) members, who shall possess the following qualifications:
The Human Rights Victims' Claims Board shall be attached to but shall not be under the Commission on Human Rights (CHR).
The Board shall organize itself within thirty (30) days from the completion of appointment of all nine (9) members and shall thereafter organize its Secretariat.
SECTION 9. Appointment to the Board. - The President shall appoint the Chairperson and the other eight (8) members of the Board: Provided, That human rights organizations such as, but not limited to, the Task Force Detainees of the Philippines (TFDP), the Free Legal Assistance Group (FLAG), the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI), the Families of Victims of Involuntary Disappearance (FIND) and the Samahan ng mga Ex-Detainees Laban sa Detensyon at Aresto (SELDA) may submit nominations to the President.
. . . .
SECTION 11. Resolution of Claims. - The Board shall be composed of three (3) divisions which shall function simultaneously and independently of each other in the resolution of claims for reparation. Each division shall be composed of one (1) Chairperson, who shall be a member of the Philippine Bar and two (2) members to be appointed by the Board en banc.
SECTION 12. Emoluments. - The Chairperson and members of the Board shall have the rank, salary, emoluments and allowances equivalent to a Presiding Justice and Associate Justice of the Court of Appeals, respectively. cEAIHa
SECTION 13. Secretariat of the Board. - The Board shall be assisted by a Secretariat which may come from the existing personnel of the CHR, without prejudice to the hiring of additional personnel as determined by the Board to accommodate the volume of required work. The following shall be the functions of the Secretariat:
(a) Receive, evaluate, process and investigate applications for claims under this Act;
(b) Recommend to the Board the approval of applications for claims;
(c) Assist the Board in technical functions; and
(d) Perform other duties that may be assigned by the Board.
The Chairperson of the Board shall appoint a Board Secretary who shall head the Secretariat for the duration of the existence of the Board. There shall be a Technical StaffHead assisted by five (5) Legal Officers and three (3) Paralegal Officers; and an Administrative Staff Head assisted by three (3) Administrative Support Staff.
When necessary, the Board may hire additional contractual employees or contract a service provider to provide services of counselors, psychologists, social workers and public education specialists, among others, to augment the services of the Secretariat: Provided, That the maximum contract amount per year shall not exceed more than fifteen percent (15%) of the total annual operating budget of the Board.
SECTION 14. Operating Budget of the Board. - The operating budget of the Board shall be funded from the Ten billion peso (P10,000,000,000.00) fund, with Ten million pesos (P10,000,000.00) as its initial operating budget: Provided, That it shall not exceed Fifty million pesos (P50,000,000.00) a year.
[136] Rep. Act No. 10368, sec. 10 provides:
SECTION 10. Powers and Functions of the Board. - The Board shall have the following powers and functions:
[137] Rep. Act No. 10368, sec. 10(d) provides:
SECTION 10. Powers and Functions of the Board. - The Board shall have the following powers and functions:
. . . .
(d) Approve with finality all eligible claims under this Act[.]
[138] Rep. Act No. 10368, secs. 16, 17, 18. A point system is provided in section 19. Section 21 provides for the filing of sworn statements "narrating the circumstances of the pertinent human rights violations committed." Section 23 provides for a period to file claims. Section 24 provides for a system of appeal. Section 25 provides penalties for fraudulent claims, and various misuse of the funds dedicated for the implementation of the law.
SECTION 16. Claimants. - Any person who is an HRVV may file a claim with the Board for reparation and/or recognition in accordance with the provisions of this Act.
SECTION 17. Conclusive Presumption That One is an HRVV Under This Act. - The claimants in the class suit and direct action plaintiffs in the Human Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 86-0390) in the US Federal District Court of Honolulu, Hawaii wherein a favorable judgment has been rendered, shall be extended the conclusive presumption that they are HRVVs: Provided, That the HRVVs recognized by the Bantayog ng mga Bayani Foundation shall also be accorded the same conclusive presumption: Provided, further, That nothing herein shall be construed to deprive the Board of its original jurisdiction and its inherent power to determine the extent of the human rights violations and the corresponding reparation and/or recognition that may be granted.
SECTION 18. Motu Proprio Recognition. - The Board may take judicial notice motu proprio of individual persons who suffered human rights violations as defined herein and grant such persons recognition as HRVVs and included in the Roll of Victims as provided for in Section 26 hereof.
. . . .
SECTION 19. Determination of Award. - (a) The Board shall follow the point system in the determination of the award. The range shall be one (1) to ten (10) points, as follows:
. . . .
SECTION 21. Documentation of Human Rights Violations Committed by the Marcos Regime. - In the implementation of this Act and without prejudice to any other documentary or other evidence that may be required for the award of any reparation, any HRVV seeking reparation shall execute a detailed sworn statement narrating the circumstances of the pertinent human rights violationls committed.
. . . .
SECTION 23. Period for Filing of Claims; Waiver. - An HRVV shall file an application for reparation with the Board within six (6) months from the effectivity of the implementing rules and regulations (IRR) of this Act: Provided, That failure to file an application within said period is deemed a waiver of the right to file the same: Provided, further, That for HRVVs who are deceased, incapacitated, or missing due to enforced disappearance, their legal heir/s or representatives, shall be entitled to file an application for reparation on their behalf.
Any opposition to the new application/s pursuant to Section 16 hereof shall only be entertained if such is filed within fifteen (15) days from the date of the last publication of the official list of eligible claimants as may be determined by the Board. The Board shall cause the publication of the official list of eligible claimants once a week for three (3) consecutive weeks in at least two (2) national newspapers of general circulation.
SECTION 24. Appeal. - Any aggrieved claimant or oppositor may file an appeal within ten (10) calendar days from the receipt of the Resolution of the Division, to the Board en banc, whose decision shall then become final and executory.
SECTION 25. Peñalties; Applicability of the Revised Peñal Code. - Any claimant who is found by the Board, after due hearing, to have filed a fraudulent claim, shall be referred to the appropriate office for prosecution. If convicted, he shall suffer the imprisonment of eight (8) to ten (10) years, shall be disqualified from public office and employment and shall be deprived of the right to vote and be voted for in any national or local election, even after the service of sentence unless granted absolute pardon. Any member of the Board and its Secretariat, public officer, employee of an agency or any private individual mandated to implement this Act, who shall misuse, embezzle or misappropriate the funds for the reparation of HRVVs or who shall commit fraud in the processing of documents and claims of HRVVs, or shall conspire with any individual to commit the same, shall also be prosecuted.
Any member of the Board and its Secretariat, public officer, employee of an agency or any private individual mandated to implement this Act, who may have been found gnilty of committing any or all of the prohibited acts stated in the preceding paragraph, or those acts punishable under the Revised Peñal Code, shall be penalized under the pertinent provisions in the Code and relevant special penal laws.
[139] Rep. Act No. 10368, sec. 16, in relation to the definition of victim in sec. 3 (b), provides:
SECTION 16. Claimants. - Any person who is an HRVV may file a claim with the Board for reparation and/or recognition in accordance with the provisions of this Act.
[140] Rep. Act No. 10368, sec. 17 provides:
SECTION 17. Conclusive Presumption That One is an HRVV Under This Act. - The claimants in the class suit and direct action plaintiffs in the Human Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 86-0390) in the US Federal District Court of Honolulu, Hawaii wherein a favorable judgment has been rendered, shall be extended the conclusive presumption that they are HRVVs: Provided, That the HRVVs recognized by the Bantayog ng mga Bayani Foundation shall also be accorded the same conclusive presumption: Provided, further, That nothing herein shall be construed to deprive the Board of its original jurisdiction and its inherent power to determine the extent of the human rights violations and the corresponding reparation and/or recognition that may be granted.
[141] Rep. Act No. 10368, sec. 18 provides:
SECTION 18. Motu Proprio Recognition. - The Board may take judicial notice motu proprio of individual persons who suffered human rights violations as defmed herein and grant such persons recognition as HRVVs and included in the Roll of Victims as provided for in Section 26 hereof.
[142] Rep. Act No. 10368, sec. 3(b).
[143] Rep. Act No. 10368, sec. 3(c).
[144] Rep. Act No. 10368, sec 3(d).
[145] Rep. Act No. 10368, sec. 3(c).
[146] Commission on Human Rights Memorandum, pp. 9-16.
[147] 540 Phil. 389 (2006) [Per J. Chico-Nazario, First Decision].
[148] Id. at 404-405.
[149] Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 (1927) [Per J. Malcolm, Second Division] citing Cooley's Constitutional Limitations, 7th ed., pp. 126 131, 157-162.
[150] CONST., art. VII, sec. 17.
[151] TSN, Oral Arguments, September 7, 2016, pp. 156-159.
[152] Rep. Act No. 10368, sec. 2, par. 2.
[153] Rep. Act No. 10368, sec. 2, par. 2.
[154] Rep. Act No. 10368, sec. 19.
[155] Rep. Act No. 10368, sec. 19(c). The monetary value shall be dependent on a point system.
[156] Rep. Act No. 10368, sec. 5.
[157] Rep. Act No. 10368, sec. 21.
[158] G.R. No. 212081, February 23, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/february2015/212081.pdf> [Per J. Perlas-Bernabe, First Division].
[159] Id. at 10-11, citing Atienza v. Villarosa, 497 Phil. 689 (2005) [Per J. Callejo, Sr., En Banc].
[160] Universal Declaration of Human Rights, art. 8 provides:
Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
[161] International Covenant of Civil and Political Rights, art. 2 provides:
Article 2.
Article 6. States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
[163] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 14 provides:
Article 14.
Article 39. States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, selfrespect and dignity of the child.
[165] Hague Convention Respecting the Laws and Customs of War on Land, art. 3 provides:
Article 3. A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
[166] Protocol Additional to the Geneva Conventions, art. 91 provides:
Article 91. Responsibility - A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
[167] Rome Statute of the International Criminal Court, art. 68 provides:
Article 68. Protection of the victims and witnesses and their participation in the proceedings
Article 75. Reparations to victims
[169] Rome Statute of the International Criminal Court, art. 75.
[170] The Philippines signed and approved the Universal Declaration on Human Rights on December 10, 1948 as part of the United Nations General Assembly that adopted it; ratified the International Convention on Civil and Political Rights on October 23, 1986; the International Convention on the Elimination of All Forms of Racial Discrimination on September 15, 1967; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on June 26, 1987; Convention on the Rights of the Child on Augnst 21, 1990; the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of June 8, 1977 on March 30, 2012; the Rome Statute of the International Criminal Court on Augnst 30, 2011.
[171] UN G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (16 December 2005). The Basic Principles and Guidelines were recommended by the UN Commission on Human Rights in its resolution 2005/35 dated April 19, 2005 and by the Economic and Social Council also in its resolution dated 2005/30 dated July 25, 2005.
[172] Basic Principles, 7th whereas clause provides:
Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms[.]
[173] Rep. Act No. 10368, sec. 2
[174] See Memoradum (G.R. No. 225973), p. 47; Memorandum Commission on Human Rights Memorandum, p. 7.
[175] CONST., art II, sec. 11.
[176] CONST., art. II, sec. 11.
[177] League of Cities of the Phils. v. Commission on Elections, 592 Phil. 1, 62 (2008) [Per J. Carpio, En Banc].
[178] China Banking Corp. v. Court of Appeals, 333 Phil. 158, 173 (1996) [Per J. Francisco, Third Division].
[179] 332 Phil. 20 (1996) [Per J. Panganiban, En Banc].
[180] Id. at 36.
[181] 354 Phil. 948 (1998) [Per J. Puno, En Banc].
[182] Id. at 967-968.
[183] Ponencia, pp. 51-52.
[184] G.R. No. 106440, January 29, 1996, 252 SCRA 412 [Per J. Vitug, First Division].
[185] 40 Phil. 349 (1919) [Per J. Johnson, En Banc].
[186] Solicitor General Consolidated Comment, p. 43.
[187] Id. at 60-61.
[188] 258 Phil. 479 (1989) [Per J. Cortes, En Banc].
[189] Id. at 492.
[190] Id.
[191] Id. at 509.
[192] 515 Phil. 1 (2006) [Per J. Carpio Morales, En Banc].
[193] Id. at 48-49.
[194] 406 Phil. 1 (2001) [Per J. Puno, En Banc].
[195] Id. at 43-44. See also Lawyers' League for a Better Philippines v. Aquino, G.R. No. 73748, May 22, 1986 <http://elibrary.judiciary.gov.ph/dtSearch/dtisapi6.dll?cmd=getdoc&DocId=l42363&Index=%2aaa1de0751c9cff7439815a4b27e3ab58&HitCount=5&hits=4+d+38+71+el+&SearchForm=C%3a%5celibrev%5celibsearch%5cdtform>, as cited in Saturnino V. Bermudez, 229 Phil. 185, 188 (1986) [Per Curiam, En Banc].
[196] Solicitor General, Consolidated Comment, page 5.
[197] 160 Phil. 637 (1975) [Per J. Fernando, En Banc].
[198] Id. at 644.
[199] 258 Phil. 479 (1989) [Per J. Cortes, En Banc].
[200] Id. at 504, citing Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President.
[201] Id. at 504-505, citing Rossiter, The American Presidency.
[202] 466 Phil. 482 (2004) [Per J. Tinga, En Banc].
[203] Id. at 522.
[204] Id. at 518.
[205] J. Perez, Concurring Opinion, p. 9.
[206] Id. at 10.
[207] Id. at 12.
[208] Id.
[209] Id.
[210] G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> [Per J. Leonen, En Banc].
[211] Id. at 20-23.
[212] J. Brion, Concurring Opinion, p. 2.
[213] Id.
[214] Id. at 3.
[215] Id.
[216] 460 Phil. 830 (2003) [Per J. Carpio-Morales, En Banc].
[217] Id. at 881-884.
[218] J. Leonen, Dissenting Opinion in Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, April 8, 2014, 721 SCRA 146, 731-847 [Per J. Mendoza, En Banc].
[219] Id. at 738-739.
[220] Ponencia, p. 11.
[221] People v. Vera, 65 Phil. 56, 87 (1937) [Per J. Laurel, First Division].
[222] 542 Phil. 443 (2007) [Per J. Carpio Morales, Second Division].
[223] Id. at 455-456.
[224] In Re Supreme Court Judicial Independence v. Judiciary Development Fund (Resolution), UDK-15143, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/15143.pdf>[Per J. Leonen, En Banc], citing Biraogo v. Philippine Truth Commission, 651 Phil. 374, 441 (2010) [Per J. Mendoza, En Banc], in turn citing Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, 591 Phil. 393,404 (2008) [Per J. Velasco, Jr., En Banc], Tatad v. Secretary of the Department of Energy, 346 Phil. 321, 359 (1997) [Per J. Puno, En Banc], and De Guia v. Commission on Elections, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422 [Per J. Bellosillo, En Banc].
[225] Resolution, UDK-15143, January 21, 2015 [Per J. Leonen, En Banc].
[226] Id. at 9-10.
[227] Ponencia, p. 13.
[228] Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf>15-18 [Per J. Leonen, En Banc].
[229] 714 Phil. 127 (2013) [Per J. Leonardo-de Castro, En Banc].
[230] CIVIL CODE, art. 7.
[231] Almario v. Executive Secretary, 714 Phil. 127, 163-164 (2013) [Per J. Leonardo-de Castro, En Banc].
[232] Ponencia, p. 49.
[233] Ocampo Memorandum (G.R No. 225973), p. 5, citing Nick Davies, The $10bn question: what happened to the Marcos millions?, The Guardian, May 7, 2016 <https://www.theguardian.com/world/2016/may/07/10bn-dollar-question-marcos-millions-nickdavies> (visited November 7, 2016).
CAGUIOA, J.:
I vehemently dissent.
Ultimately, the ponencia's reason to dismiss the petitions is that there is "no clear constitutional or legal basis" to hold that there was a grave abuse of discretion attending President Rodrigo R. Duterte's order to inter former President Marcos's remains in the Libingan ng mga Bayani ("LNMB"). And the premise of the statement is that the sole authority in determining who are entitled and disqualified to be interred at the LNMB is the AFP Regulations.
I cannot, as a magistrate and a citizen, in good conscience, agree. My reasons are set forth below.
The burial of former President Marcos does not raise a political question beyond the ambit of judicial review.
The ponencia holds that President Duterte's decision to have the remains interred at the LNMB involves a political question that is not a justiciable controversy.
I disagree.
The issues of justiciability and political question are inextricably intertwined. They are in reality two sides of the same coin. Their resolution usually involves mutually exclusive choices. A determination favoring one necessarily negates the other. It is an "either/or" scenario.
Invariably, any discussion of the political question doctrine will draw in the concept of judicial power and review. In turn, the presence of grave abuse of discretion amounting to lack or excess of jurisdiction is the stimulus for the exercise of judicial review.
As the doctrine of political question evolved in this jurisdiction, so did the concept of judicial power. At present, judicial power, as defined in paragraph 2, Section 1, Article VIII of the 1987 Constitution,[1] includes the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, and 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. This expanded concept of judicial power has consequently bounded, if not marginalized, the political question doctrine.
The petitioners argue that their petitions raise justiciable issues over which the Court has the power of judicial review under its expanded jurisdiction under the 1987 Constitution.[2] They cite, among others, The Diocese of Bacolod v. COMELEC,[3] Marcos v. Manglapus,[4] Integrated Bar of the Philippines v. Zamora,[5] Estrada v. Desierto,[6] and Francisco v. The House of Representatives[7] in support of their argument. These cases have resolved the political question issue as well.
On the other hand, public respondents argue that President Duterte's determination to have the remains of former President Marcos interred at the LNMB does not pose a justiciable controversy.[8] The Solicitor General claims that the decision involves "wisdom"[9] and thus beyond judicial review. In fine, public respondents pose "policy or wisdom" considerations to thwart the Court from taking cognizance of the petitions.[10] In support of his position, the Solicitor General relies on the cases of Mamba v. Lara,[11] Belgica v. Ochoa,[12] and Tañada v. Cuenco[13] as jurisprudential anchors.
In Francisco v. The House of Representatives,[14] the Court, after recalling the deliberations of the 1986 Constitutional Commission in relation to Section 1, Article VIII[15] of the 1987 Constitution, espoused that there are two species of political questions: (1) "truly political questions" or "nonjusticiable political questions" and (2) "justiciable political questions" or those which are "not truly political questions." Thus, truly political questions are beyond judicial review while courts can review questions which are not truly political in nature.[16] The Court explained in Francisco:
A mere invocation of the wisdom of the President's actions and orders does not make them untrammeled, as indeed, the exercise of Presidential powers and prerogatives is not without limitations - the exercise of the Presidential power and prerogative under the Constitution and the Administrative Code, which the public respondents invoke, is circumscribed within defined constitutional, legal, and public policy standards.
In fact, the reliance by the Solicitor General on the powers of the President under the Constitution and the 1987 Revised Administrative Code ("RAC") to justify his decision to inter the remains of former President Marcos in the LNMB necessarily calls into play any and all underlying constitutional and legal limitations to such powers. Within this paradigm, judicial review by the Court is justifiable, if not called for. There is, thus, no truly political question in relation to the assailed action of the President if this is justified to have been made allegedly pursuant to his purported powers under the Constitution and the RAC.
Apart from his powers under the Constitution and the RAC, the Solicitor General also argues that the President's order to allow former President Marcos' interment at the LNMB is based on his determination that it shall promote national healing and forgiveness, and redound to the benefit of the Filipino people.[21] He further argues that the President's decision is not simply a matter of political accommodation, or even whim, but, viewed from a wider perspective, it is geared towards changing the national psyche and thus begin the painful healing of this country.[22] Lastly, he argues that the said order is in keeping with the President's campaign promise, his quest for genuine change and his desire to efface Marcos' remains as the symbol of polarity.[23]
In fine, the Solicitor General asks the Court to take the foregoing arguments at face value and admit them as truisms without any question, on the proposition that if the Court were to scrutinize them, then the President's wisdom is being doubted. This request, however, the Court cannot grant without abnegating its constitutional duty[24] of judicial review.
Requisites of Judicial Review
The flipside to the political question doctrine would be the requisites of judicial review. Before the Court may hear and decide a petition assailing the constitutionality of a law or any governmental act, the following must first be satisfied: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[25] Of these four, the most important are the first two requisites,[26] and thus will be the focus of the following discussion.
The case presents an actual controversy ripe for adjudication.
In Belgica v. Ochoa,[27] the Court expounded anew on the requirement of actual case or controversy in this wise:
Petitioners have locus standi.
I do not agree with the ponencia's holding that none of the petitioners had standing to file the petitions for failure to show direct and personal injury.
Locus standi is defined as a right of appearance in a court of justice on a given question.[29] It refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the challenged governmental act.[30] To satisfy the requirement of legal standing, one must allege such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[31]
In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,[32] the Court recognized that in public actions, suits are not usually brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. Thus, in a long line of cases, non-traditional plaintiffs, such as concerned citizens, taxpayers and legislators, who have not been personally injured by the assailed governmental act, have been given standing by this Court provided specific requirements have been met.[33]
For legislators, they have standing to maintain inviolate the prerogatives, powers, and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action, which infringe upon their legislative prerogatives.[34]
In the case of taxpayers, they are allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutionallaw.[35]
When suing as a concerned citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. When the issue concerns a public right, however, it has been held that being a citizen and having an interest in the execution of the laws is already sufficient.[36]
Applying the foregoing standards to the present case:
(1) Victims of human rights violations during martial law have the requisite legal standing to file their respective petitions. Their personal and direct interest to question the interment and burial of former President Marcos at the LNMB rests on their right to a full and effective remedy and entitlement to monetary and non-monetary reparations guaranteed by the State under the Constitution, domestic and international laws.
(2) Petitioners also have standing as citizens-taxpayers. The public character of the LNMB and the general appropriations for its maintenance, preservation and development satisfy the requirements for a taxpayer's suit. To be sure, petitioners' assertion of every citizen's right to enforce the performance of a public duty and to ensure faithful execution of laws suffices to clothe them with the requisite legal standing as concerned citizens.
(3) However, Members of Congress in the Lagman petition and petitioner De Lima have no personality to maintain the suit as legislators because they failed to allege, much less show, how the President's directive to have the remains of former President Marcos interred at the LNMB usurps or infringes upon their legislative functions.
(4) Similarly, petitioners Saguisag, et al., as intervenors in the case, have no legal standing to maintain the suit in regard to their claim as human rights lawyers as this is too general to clothe them the legal interest in the matter in litigation or in the success of either of the parties required under the Rules of Court.[37]
Be that as it may, the question of locus standi is but corollary to the bigger question of the proper exercise of judicial power.[38] The Court may brush aside technical rules when the matter is of transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as precedents.[39]
The ponencia concludes by saying that "[the interment] would have no profound effect on the political, economic, and other aspects of our national life considering that more than twenty-seven years since his death and thirty years after his ouster have already passed." Prescinding from this statement's sheer and utter disregard of Philippine history, the implications that the assailed act bear on the State's policy to guarantee full respect for human rights embodied in the Constitution, on the body of jurisprudence acknowledging the atrocities committed during martial law, and on the legislative enactments and treaty obligations granting full protection and reparation to the victims of human rights violations, undoubtedly elevate this case to the level of transcendental importance. A relaxation of the rules of legal standing is thus properly called for.
Certiorari and prohibition are proper remedies.
The Solicitor General assails the propriety of the remedies sought by petitioners. He argues that a petition for certiorari and prohibition does not lie against public respondents inasmuch as the President, in directing the interment of former President Marcos at the LNMB, did not exercise judicial, quasi-judicial or ministerial functions.
The petitioners' resort to certiorari and prohibition was proper. A petition for certiorari or prohibition under Rule 65 is an appropriate remedy to question, on the ground of grave abuse of discretion, the act of any branch or instrumentality of government, even if the latter does not exercise judicial, quasijudicial or ministerial functions.[40]
To reiterate, the expanded definition of judicial power, under Article VIII, Section 1 of the Constitution, imposes upon the Court and all other courts of justice, the power and the duty not only to "settle actual controversies involving rights which are legally demandable and enforceable" but also "to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the Government".
In the case of Araullo v. Aquino,[41] the Court clarified that the special civil actions of certiorari and prohibition under Rule 65 of the Rules of Court are remedies by which the courts discharge this constitutional mandate. Thus, it was ruled that:
Petitioners did not violate the rule on hierarchy of courts.
The ponencia holds that petitioners failed to observe the rule on hierarchy of courts as they should have filed with the Regional Trial Court exercising jurisdiction over public respondents, and that there exist no special, compelling and important reasons to justify direct resort to this Court.
I disagree.
In The Diocese of Bacolod v. COMELEC,[43] citing Bañez, Jr. v. Concepcion[44], the Court held:
Contrary to the ponencia's holding, there are special and compelling reasons attendant in the case at bar which justify direct resort to this Court. Apart from the fact that the issues presented here are of transcendental importance, as earlier explained, they are being brought before the Court for the first time. As no jurisprudence yet exists on the matter, it is best that this case be decided by this Court.
Moreover, while the petitions may have been directed against the Memorandum and Directive issued by public respondents, the ultimate act assailed is an executive action. In Drilon v. Lim,[47] the Court ruled:
Exhaustion of administrative remedies does not apply in this case.
The ponencia upholds the Solicitor General's claim that petitioners failed to exhaust administrative remedies because they should have first sought with the Office of the President the reconsideration of the subject directives.
This is untenable.
The doctrine of exhaustion of administrative remedies is not absolute as there are numerous exceptions laid down by jurisprudence, namely: (a) when there is a violation of due process; (b) when the issue involved is purely a legal question; (c) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part of the administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a department secretary whose acts as an alter ego of the President bear the implied and assumed approval of the latter; (g) when to require exhaustion of administrative remedies would be unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a private land in land case proceedings; (j) when the rule does not provide a plain, speedy and adequate remedy; or (k) when there are circumstances indicating the urgency of judicial intervention.[52]
In the petitions before the Court, circumstances (b), (f), (g) and (k) are present.
First, as already mentioned, the case involves a matter of extreme urgency. The urgency of judicial intervention is self-evident in the Court's decision to issue a Status Quo Ante Order on August 23, 2016, which was extended until November 8, 2016.
Second, the principal issue in this case of whether the President, in ordering the interment and burial of the remains of former President Marcos at the LNMB, committed grave abuse of discretion and/or violated the Constitution and other statutes is purely of law and will ultimately be decided by the courts of justice. In this regard, Vigilar v. Aquino[53] explains the reason for the exception, viz:
Substantive Issues
Having established the jurisdiction of this Court to rule upon these consolidated petitions under Rule 65, pursuant to its power of judicial review under the expanded definition of judicial power in Article VIII, Section 1 of the Constitution, I now proceed to the substantive issues.
Grave abuse of discretion
The office of the writs of certiorari and prohibition is to correct errors of jurisdiction arising from grave abuse of discretion. Very simply, then, the most important question that needs to be answered in this case is fairly straightforward: whether or not public respondents acted with grave abuse of discretion amounting to lack or excess of jurisdiction in ordering the interment of former President Marcos in the LNMB.
Restated, in ordering the interment of former President Marcos in the LNMB, did public respondents contravene or violate the Constitution, the law, or existing jurisprudence?[55] If they did, then they committed grave abuse of discretion,[56] the ponencia concedes as much. Whimsicality, caprice and arbitrariness are also considered in determining the existence of grave abuse. I fully concur with Justice Leonen's discussion on the subject, and will confine my discussion to whether the interment violates the Constitution, law or jurisprudence.
Directly answering the question, I believe that the petitions are with merit, and that the order to inter the remains of former President Marcos in the LNMB is contrary to the Constitution, the law, and several executive issuances that have the force of law, as well as the public policy that the Constitution, the said laws, and executive issuances espouse and advance. The argument that burying former President Marcos in the LNMB does not make him a hero disregards the status of the LNMB as a national shrine, the public policy in treating national shrines, the standards set forth in these laws and executive issuances as well as in the AFP LNMB burial regulations ("AFP Regulations").
Before explaining how the intended interment of former President Marcos violates the Constitution, law, executive issuances, public policy, and custom, it would be apropos to examine the legal bases offered by the Solicitor General and private respondents Heirs of Marcos in defending the legality of the President's act of allowing the interment and burial of former President Marcos in the LNMB, as upheld by the ponencia.
The President's power to reserve tracts of land of the public domain for a specific public purpose.
The ponencia considers the President's power to reserve land for public purpose, under Section 14, Chapter IV of Book III, Title I of the RAC, as basis for the decision to inter former President Marcos in the LNMB.[57] Section 14 provides:
An illustration is found in the factual milieu of Republic v. Octobre,[62] wherein a particular tract of land of the public domain was reserved for a public purpose by proclamation, and thereafter released through a subsequent proclamation by President Magsaysay. The Court cited therein the authority of the President under Section 9 of the Public Land Act to reclassify lands of the public domain "at any time and in a similar manner, transfer lands from one class to another," to validate the release of the reservation through the subsequent proclamation. This supports the conclusion that the positive act that "perfects" the reservation for public purpose (or release) is the issuance of a proclamation. In fact, in Republic v. Estonilo,[63] this mode was considered necessary for a reservation to be effective or valid:
But even assuming arguendo that the President can exercise the power to reserve lands of the public domain through a verbal order, the exercise of this power as basis for the decision to inter former President Marcos in the LNMB must still be scrutinized in two ways: first, does the interment constitute public use or public purpose; and second, is there any law that directs the use of the land the President seeks to reserve.[64]
Based on the language of Section 14, Chapter IV of Book III, Title I of the RAC itself, the power to reserve land is qualified by the standards stated therein:
First requirement: reserve tracts of land of the public domain for a specific public purpose.
On the first standard, petitioners argued during the oral arguments that the fulfillment of the President's campaign promise, made in favor of a private party, or to inter a dictator or plunderer does not constitute a legitimate public purpose as it does not serve public good. During the interpellation by Justice Carpio, this was discussed:
This Court, in rejecting the validity of appropriating public funds for a private purpose, explained in Pascual v. Secretary of Public Works and Communications:[68]
The ponencia holds that the recogmtwn of the former President Marcos's status or contributions as a President, veteran or Medal of Valor awardee satisfies the public use requirement, and the interment as compensation for valuable services rendered is public purpose that justifies use of public funds. Apart from lacking legal basis, this holding conveniently overlooks the primary purpose of the interment extant in the records the Solicitor General has admitted that the burial of former President Marcos was a campaign promise of the President to the Marcos family:
The holding of the ponencia, shown in this light, is illogical: Marcos is not a hero, and burying him in the LNMB will not convert him into a hero. But somehow, his interment primarily serves a public purpose or otherwise serves the interest of the public at large, and this Court will allow the expenditure of public funds to inter him as a President, veteran, and/or a Medal of Valor awardee as compensation for valuable public services rendered - turning a blind eye to the disservice, damage and havoc that former President Marcos caused to this country.
Second requirement: the use of the land sought to be reserved not otherwise directed by law.
The second requirement for the validity of a reservation requires the determination of the existence of a law that requires a different use for the land to be reserved. This was the standard in Republic v. Octobre,[71] when the Court interpreted Section 64(e) of the Revised Administrative Code of 1917, the applicable provision then in force, viz:
In other words, the Solicitor General's invocation of Section 14 of the RAC, as intimated earlier, confirms that the decision to inter former President Marcos in the LNMB is not a truly political question as said decision is, in law, subject to the Court's power of judicial review to determine whether the standards of Section 14 of the RAC have been met, and alongside all other laws, issuances, judicial decisions and state of facts subject to judicial notice that relate to former President Marcos as the intended beneficiary of the directive to be interred in the LNMB. Moreover, since the land that is the present site of the LNMB is already reserved by Presidential Proclamation for a specified public use or purpose - for national shrine purposes - then such specified use or purpose continues until the land is released by another Presidential Proclamation. Since in this case, there is no such Presidential Proclamation, the interment and concomitant expenditure of public funds must, if justified by Section 14 of the RAC, constitute public purpose and be consistent with the specified purpose of its reservation, i.e. Proclamation No. 208 (s. 1967).
In fine, the verbal order to inter falls short of the required manner of exercising the power to reserve. Moreover, the interment cannot be justified by the power to reserve because it is not a legitimate public purpose, and is not consistent with the national shrine purposes of LNMB's reservation. For the same reasons that the interment serves no legitimate public purpose, no use of public property or public funds can be made to support it.
Faithful execution and power of control
As another basis for the power to order the interment of former President Marcos in the LNMB, the Solicitor General cites the President's power of control over the executive department. On the other hand, Heirs of Marcos insist that the President's order merely implements the express provisions of RA 289 and the pertinent AFP Regulations and, as such, cannot be considered as capricious or whimsical, nor arbitrary and despotic.
Petitioners, however, aver the opposite - that the Memorandum and Directive to bury former President Marcos at the LNMB violate the faithful execution clause because it disregards the clear and unequivocal declaration made by Congress in RA 10368 that former President Marcos is a recognized human rights violator.
There is no argument as to the existence of the power of control and duty of faithful execution. However, as applied to the case at bar, it bears to revisit the extent of the power of control and duty to faithfully execute laws.
The President's power of control and duty to faithfully execute laws are found in Article VII, Section 17 of the 1987 Constitution, which provides:
In Phillips Seafood (Philippines) Corp. v. The Board of Investments,[74] the Court held that the power of control is not absolute, and may be effectively limited:
This is consistent with the duty imposed upon the President by the faithful execution clause, which this Court explained, thus:
Residual powers of the President
In default of, or in addition to, the President's power to reserve lands, power of control, and faithful execution of the laws, the Solicitor General claims that the decision to inter former President Marcos is an exercise of the residual powers of the President. And, in this connection, the Solicitor General harps on the inherent and exclusive prerogative of the President to determine the country's policy of national healing.[76]
Residual powers are provided in Book III, Title I, Chapter 7, Section 20 of the RAC, thus:
As early as Marcos v. Manglapus,[82] the Court, after conceding to then President Corazon Aquino the discretion to prohibit the Marcoses[83] from returning to the Philippines under the "residual unstated powers of the President x x x to safeguard and protect general welfare," proceeded to still ascertain if her decision had factual basis, viz:
Thus, conceding to the President the power to order the interment of the former President in the LNMB, did he, however, have competent factual basis to conclude that his decision would promote national healing, genuine change and forgiveness, redound to the benefit of Filipino people, change the national psyche, begin the painful healing of this country, and efface the Marcos' remains as a symbol of polarity?
National healing, genuine change, forgiveness, change in national psyche, and effacing the Marcos's remains as the symbol of polarity are not matters which the Court can or may take judicial notice of.[88] They are not self-evident or self-authenticating. The public respondents and the private respondents, Heirs of Marcos, have, therefore, the burden to factually substantiate them. The Court cannot be left, on its own, to divine their significance in practical terms and flesh them out.
Regarding national healing, does the Solicitor General expect the Court to commiserate with and feel for whatever "pain and suffering" the Marcos family may stand to endure if former President Marcos is not interred in the LNMB? The Court has not even been apprised of the nature of such "pain and suffering." In fact, counsel for the heirs of Marcos refused to provide an answer when asked on this issue during the oral arguments, thus:
"Genuine change", without more, may have been an excellent slogan during the campaign period, but as a reason for the decision to inter former President Marcos in the LNMB, is too amorphous and nebulous. What is it in the present Filipino life that requires "genuine change", the Solicitor General has not even attempted to explain. How does the interment of former President Marcos in the LNMB effect this "genuine change"? Again, the Solicitor General has not proffered any kind of explanation.
As defined, forgiveness is a "conscious, deliberate decision to release feelings of resentment or vengeance" toward a person or group who has caused harm, regardless of whether such persons are deserving of the same.[94] Conversely, forgiveness does not mean glossing over or denying the seriousness of an offense committed against one's person, nor does it mean condoning or excusing offenses or legal accountability.[95] Instead, forgiveness entails the recognition of the pain that one has suffered, without letting such pain prevent one from attaining healing or moving on with their life.[96]
On the part of the Marcos heirs, the Solicitor General quotes in their Memorandum Ilocos Norte Governor Imee Marcos' message[97] of "simple sorry"[98] during the recent commemoration of her father's birthday, wherein she purportedly "humbly sought forgiveness."[99] Is this the forgiveness that the President is after? But, forgiveness cannot be exacted from the victims of the Marcos martial rule because the State has no right to impose the same upon them. The Court is helpless in the absence of a reasonable and acceptable explanation how the President's objective of "forgiveness" is achieved by the intended interment.
Unlike in Marcos v. Manglapus where "from the pleadings filed by the parties [therein], from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents [therein] were represented, there exist factual bases for the President's decision" to bar the return of the Marcoses to the Philippines in the national interest,[100] the Solicitor General has not identified any tangible and material benefit that the nation will reap with the interment of former President Marcos in the LNMB. Thus, the Court is left with no alternative but to conclude that it will only be Heirs of Marcos, who are private citizens, who will stand to benefit from the interment.
The Solicitor General's postulate that the burial of the former President's remains in the LNMB is "geared towards changing the national psyche" is, again, as vague as the other motherhood statements that have been bandied about.
"Psyche" is simply defined as the soul, mind or personality of a person or group[101] and the mental or psychological structure of a person, especially as a motive force.[102] Conversely, "national psychology" may refer to the soul, mind, or personality of a nation, or the mental psychological structure of a nation.
The Solicitor General cannot just presume that the Court is knowledgeable of the "national psyche" that the President desires to engender or change. The President's intentions may be noble, but the Court cannot be expected to speculate as to what he understands "national psyche" to be or how the interment will engender or change the "national psyche".
As to the burial of former President Marcos being in keeping with the President's campaign promise, the Solicitor General effectively takes the position that with the President's proclamation as such, he must now keep his campaign promise because the electorate "has spoken".[103]
But again, this is equivocal to say the least. To some, the campaign promise is but a political concession to the Heirs of Marcos and to attract the votes of the Marcos loyalists. To others, who are perennially political cynics, campaign promises are made to be broken, not cast in stone, and are like debts listed on water. As to the reasons why the voters' preference in the last national elections tilted in favor of the President over the other presidential candidates, political analysts can have their field day. The Court should not try to second guess.
Regarding the Solicitor General's premise that former President Marcos' remains have become the symbol of polarity, again, the necessary foundation for this was not laid.
What the Court can take judicial notice of is that, at present, former President Marcos lies in repose at the Ferdinand E. Marcos Presidential Center,[104] which is situated in Batac, Ilocos Norte. The Center has a museum which showcases memorabilia of the former President, and a mausoleum where his remains lie inside a glass-encased coffin which has been on public display since 1993. Many flock to the mausoleum to view the remains of former President Marcos and he continues to be admired by his loyalists. Those who are presently vehemently opposing the burial of former President Marcos in the LNMB have not, for more than 20 years, questioned the right and decision of the Heirs of Marcos to have his remains lie in repose at his mausoleum. The so-called "polarity" symbolized by the remains of the former President is, again, not apparent.
Thus, the mere incantation of buzzwords such as "national psyche," "national healing," "genuine change," "campaign promise" and "effacing symbol of polarity" as the wisdom underlying the challenged order of the President appears - in the absence of anything other than such incantation - is nothing more than a legerdemain resorted to to prevent the Court from taking judicial cognition thereof and to make the President's action inscrutable. Without sufficient factual bases, these magic words are ephemeral and ambiguous. The Solicitor General has failed to provide even the minimum specifics as to how such objectives, as lofty as they are or pretended to be, will be achieved if the President's order is implemented. Consequently, this failure to substantiate the factual bases of the President's assailed action should have left the Court with no option but to rule that the President's intended action is bereft of any factual basis and, for that reason, following Marcos v. Manglapus, already constitutes grave abuse of discretion.
Summation
To recapitulate: (1) there was no valid exercise of the power to reserve under Section 14 of the RAC; (2) the President may validly order the interment of former President Marcos in the LNMB pursuant to his power of control and his duty to faithfully execute laws, provided that no contravention of the Constitution, laws, executive issuances, public policy, customs and international obligations arises therefrom or is committed; (3) the Solicitor General failed to show any contingency for the valid exercise of the President's residual powers, and likewise failed to demonstrate sufficient factual basis to justify the interment of former President Marcos in the LNMB.
Turning now to the relevant provisiOns of the Constitution, laws, executive issuances, public policy, customs and international obligations, I will explain in turn how the interment violates them, and thus, constitutes grave abuse.
The laws, executive issuances, public policy and customs that were violated.
Republic Act No. 289
Petitioners' reliance on RA 289 as anchor for their argument that the intended burial of former President Marcos is prohibited by this law is misplaced.
RA 289 directed the construction of a National Pantheon intended to be the burial place for all the Presidents of the Philippines, national heroes and patriots,[105] and established the Board of National Pantheon that is mandated to cause the interment in the National Pantheon of the mortal remains of all Presidents of the Philippines, national heroes and patriots.[106] Subsequently, in Proclamation No. 431 issued by President Quirino in 1953, a parcel of land in Quezon City was reserved. Thereafter, by virtue of Proclamation No. 42 (s. 1954), this reservation was withdrawn. No other property has been thus earmarked or reserved for the construction of a National Pantheon.
I agree that RA 289 is not applicable. Reading RA 289 together with Proclamation No. 431 leads to no other conclusion than that the land on which the National Pantheon was to be built refers to a discrete parcel of land that is different from site of the LNMB. To be sure, the history of the LNMB, is that of a parcel of land identified by Proclamation No. 208 Series of 1967, dated May 28, 1967, which is parcel 3, Psu-2031, consisting of 1,428,800 square meters and whose technical description is reflected in said Proclamation No. 208. Accordingly, it is non sequitur to argue the applicability of RA 289, or the standards indicated therein, to the LNMB, which is a parcel of land that is totally different and distinct.
That said, I fully concur with Justice Leonen that RA 289 remains an effective law consistent with Article 7 of the Civil Code.
PD 105, RA 10066 and 10086, and the specific policy in the treatment of national shrines
It has to be acknowledged that there is no dispute that the present LNMB is rightfully a military memorial declared as a national shrine. The history of the LNMB, as it is expressed in the different PDs and executive issuances, shows that it is not an ordinary cemetery; it is not an ordinary gravesite. Truthfully, and legally, its status as a national shrine is beyond cavil.
In this regard, PD 105 squarely directs how national shrines should be regarded. And while the decree specifically mentions several places as national shrines, it also unequivocally provides that all national shrines "and others which may be proclaimed in the future as national shrines" are to be regarded and treated as "hallowed places".
Thus, the third Whereas clause of PD 105 mandates that "it is the policy of the Government to hold and keep said National Shrines as sacred and hallowed place."[107]
PD 105 is not a mere executive issuance. It is law. And this law establishes a specific State policy in the treatment of all national shrines declared before and after its issuance. Accordingly, since the LNMB has been declared as a national shrine, the specific State policy to hold and keep national shrines as a "sacred and hallowed place" necessarily covers the LNMB. To be sure, this policy extends to the LNMB despite the fact that its declaration as a national shrine predated PD 105 as there is no rational basis why the LNMB, already declared a national shrine by Proclamation No. 208 in 1967, should be treated differently from those sites that have been declared as national shrines after PD 105.
The argument that PD 105 applies only to places of birth, exile, imprisonment, detention or death of great and eminent leaders of the nation is too narrow and myopic a reading that it deserves scant consideration. Indeed, this interpretation is contradicted and belied by the very language of PD 105 itself which recognizes all other national shrines that "may be declared in the future" as also being sacred and hallowed places. The Court can take judicial notice of a number of places declared as national shrines after PD 105 and therefore to be treated as sacred and hallowed places - that are not places of birth, exile, imprisonment, detention or death of great and eminent leaders, such as the Kiangan War Memorial Shrine which was established to perpetuate the surrender site for the Japanese Imperial Forces and to serve as a reminder of the "uselessness of war as a means of solving international differences",[108] the Quezon Memorial Circle which was established in memory of the late President Manuel L. Quezon even as President Quezon died in New York, and the Balete Pass[109] which was a battlefield where the Americans and the Filipinos fought against the Japanese Imperial Forces. To insist that the provisions of PD 105, and the proscription against the prohibited acts listed therein, will apply to a national shrine only if said national shrine is the place of birth, exile, imprisonment, detention or death of a great and eminent leader is plainly ridiculous and downright error.
I find that PD 105 is applicable. No proposition is being made to expand the import of the decree beyond its express terms; no penalty is sought against any act involved in this case. What is inescapable, however, is the explicit statement of government policy to hold national shrines sacred. As well, the same policy is reiterated in RA 10066 and RA 10086-order the preservation or conservation of the cultural significance of national shrines.
In this connection, the policy of PD 105 to hold and keep the LNMB as a "sacred and hallowed place" is in keeping with, and completely aligned with, the esteem and reverence that Proclamation No. 89 accords to the fallen soldiers, war dead and military personnel who were meant to be buried in the LNMB.
As admitted by the Solicitor General during oral arguments, the words "esteem and reverence" in Proclamation No. 89 and "sacred and hallowed" in PD 105 are not empty and meaningless. The words "esteem and reverence" set and mandate how the LNMB, in particular, should be regarded, whereas the words "sacred and hallowed" direct how national shrines, in general, should be treated.
Truly, it is precisely because of the country's collective regard of the LNMB as the memorial in honor of the heroism, patriotism and nationalism of its war dead as well as its fallen soldiers and military personnel that President Duterte held the rites honoring the country's national heroes at the LNMB in the morning of August 29, 2016.[110] There is no question that LNMB has traditionally been the site where National Heroes Day is commemorated.
The main premise of the ponencia appears to be that the LNMB is still primarily and essentially a military memorial, or a military shrine, notwithstanding the fact that it was purposely excluded from the military reservation for national shrine purposes by Proclamation No. 208. The military nature of the LNMB is seemingly relied upon to argue that standards relating to national shrines in general, and to the LNMB in particular, outside of the standards expressly embodied in the AFP Regulations, cannot apply.
To me this is egregious error. The dual nature of the LNMB as a military memorial and a national shrine cannot be denied.
Former President Marcos himself appeared to have recognized the distinction in the discerning manner that he declared sites as military memorials or shrines and national shrines - some he declared solely as military shrines or memorial shrines, while others sites with military significance were declared as national shrines. To illustrate, he declared the Tirad Pass National Park.[111] Fort San Antonio Abad,[112] "Red Beach" (the landing point of General Douglas MacArthur and the liberating forces),[113] and an area of Mt. Samat,[114] as national shrines, while a parcel of land in Cavinti was declared as a memorial shrine.[115]
The best exemplar, perhaps, is the Bantayog ng Kiangan, the site in Ifugao where General Yamashita surrendered to the Allied Forces. On July 9, 1975, former President Marcos issued Proclamation No. 1460, declaring the same as a military shrine under the administration and control of the Military Memorial Division, Department of National Defense.[116] Two years later, on October 17, 1977, he issued Proclamation No. 1682, declaring the previously declared military shrine as a national shrine.[117]
Even PD 1076,[118] issued by former President Marcos on January 26, 1977, that transferred the functions of administration, maintenance and development of national shrines to the PVAO, found its impetus, not on the ground that PVAO should have exclusive jurisdiction over these national shrines, but on the fact that the (then) Department of National Department of Defense had greater capabilities and resources to more effectively administer, maintain and develop the national shrines, and exercised functions more closely related to the significance of the national shrines.[119]
Verily, the argument that the LNMB was initially, primarily, or truly a military memorial to maintain that only the express disqualifications in the AFP Regulations should control in the determination of who may be interred therein, to the exclusion of the provisions of the Constitution, laws and executive issuances, disregards the fact that its status as a national shrine has legal consequences.
The policy of PD 105 with respect to national shrines is reiterated, or more accurately, expanded in the statement of policy in RA 10066[120] that has the objective of protect[ing], preserv[ing], conserv[ing] and promot[ing] the nation's cultural heritage, its property and histories;[121] and RA 10086[122] that states the policy of the State to conserve, promote and popularize the nation's historical and cultural heritage and resources.[123] Even assuming that PD 105 does not apply to the LNMB, there can be no argument that the later expression of legislative will in RA 10066 and RA 10086 accords even fuller protection to national shrines, which includes the LNMB.
The term "national shrine" escapes express legal definition. However, sufficient guidance is found in RA 10066[124] that uses different permutations of the term: "national historical shrines" is a category of cultural property[125] while the term "historical shrines" is defined to refer to historical sites or structures hallowed and revered for their history or association as declared by the National Historical Institute.[126] Thereafter, RA 10066 uses the term "national shrines" in its penal provision[127] which could only mean national historical shrine previously defined. Under this law, the National Historical Institute ("NHI"), the body once given powers of administration over the LNMB, was responsible for significant movable and immovable cultural property that pertains to Philippine history, heroes and the conservation of historical artifacts.[128]
In RA 10086, "national historical shrines" refers to "sites or structures hallowed and revered for their history or association declared as such by the NHCP,"[129] which is the successor of the NHI mentioned in RA 10066. RA 10086 interchangeably uses shrines[130] and national shrines.[131] In both laws, the word "conservation" is defined as "processes and measures of maintaining the cultural significance of a cultural property including, but not limited to, physical, social or legal preservation, restoration, reconstruction, protection, adaptation or any combination thereof," respectively,[132] which is consistent with, and in fact expanded the protection beyond, what may be argued as merely prohibiting physical desecration in PD 105. The clear legislative mandate in RA 10066 and 10086 require conservation, not only of the physical integrity of national shrines as cultural and historical resources, but also of the cultural significance thereof.
These laws operate to accord legal protection to the LNMB so that the standard applicable to it, in particular, esteem and reverence in Proclamation No. 86, and to national shrines, in general, as sacred and hallowed under PD 105, will be upheld and maintained. In other words, if a person who is not worthy of or held in esteem and reverence is sought to be interred in the LNMB, then this would be contrary to the policy to hold LNMB as a sacred and hallowed place - and the Court must step in to preserve and protect LNMB's cultural significance. Relevantly, the NHCP, which has the mandate to discuss and resolve, with finality, issues or conflicts on Philippine history under Section 7 of RA 10086, opposes the interment - another fact completely disregarded by the ponencia.
Verily, the interment of former President Marcos constitutes a violation of the physical, historical and cultural integrity of the LNMB as a national shrine, which the State has the obligation to conserve.
AFP Regulations
Concededly, the LNMB is also a military grave site. The Quartermaster General of the Armed Forces of the Philippines ("AFP") exercises over-all supervision in the implementation of the AFP Regulations concerning burials at the LNMB, specifically, AFP Regulations 161-373 dated April 9, 1986 and the subsequent regulations (AFP Regulations G 161-374 dated March 27, 1998,[133] and AFP Regulations G 161-375 dated September 11, 2000[134] [the AFP Regulations] while the Graves Services Unit ("GSU") is charged with the registration of deceased/graves, allocation of specific section/area, preparation of grave sites, and supervision of burials at the LNMB.[135]
The fact that the LNMB is an active military grave site or cemetery, however, does not diminish, and cannot be used as an excuse to denigrate, its status as a national shrine. The PDs discussed above are laws while the presidential issuances have the force of law. They must be observed in the use of the LNMB.
National Heroes Day is a regular holiday under Act No. 3827 intended for the Filipinos to reflect on the heroism of our countrymen. This Court can take judicial notice of the custom[136] or tradition of the sitting President to celebrate this national holiday by visiting the LNMB, which, if accorded a most reasonable interpretation, can be taken to mean that LNMB does symbolize heroism, or that it is the place where the nation's heroes lie. To argue, therefore, that the word "bayani" in the LNMB is a misnomer, and that no symbolism of heroism should be attached thereto or to those that lie therein as heroes, is, at the very least, contrary to well-established custom.
And this is precisely how the provisions in the AFP Regulations regarding those who are not qualified to be interred in the LNMB should be construed as an acknowledgment that it is a national shrine, and must be treated as a "sacred and hallowed" resting place. Surely, if "personnel who were dishonorably separated/reverted/discharged from service" are to be interred in the LNMB, then LNMB, being a "sacred and hallowed place,"[137] would be desecrated. In the same vein, if "authorized personnel who were convicted by final judgment of an offense involving moral turpitude"[138] are to be interred in the LNMB, then the status of LNMB as a national shrine would be tarnished. Without these disqualifications, the sacredness and hallowedness of the LNMB would be hollow and meaningless.
In other words, it would be, as it is, error, to view or understand the AFP Regulations in a vacuum, independent of or apart from, the policy expressed in Proclamation No. 86 which renamed the Republic Memorial Cemetery as "Libingan ng mga Bayani" (Cemetery of the Heroes[139]) and established therein the standards of "ESTEEM and REVERENCE", Proclamation No. 208 which constituted LNMB as a national shrine, PD 105 which specifically provides the specific policy that all national shrines shall be sacred and hallowed places, RA 10086 that characterizes LNMB as a "national historic shrine" or a historical site or structure hallowed and revered for its history or association.
These laws and presidential proclamations that have the force of law should be read into, and considered part of, the AFP Regulations.
Basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of interpretation in order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in accordance with the legal maxim interpretare et concordare leges legibus est optimus interpretandi modus.[140]
Thus, the disqualifications contemplated under the AFP Regulations should be construed under the aegis of the foregoing laws and executive issuances and their interpretation should not be narrowed by the language used therein. Accordingly, I fully agree with Justice Carpio's position that when Marcos was forcibly taken out of office and removed as a President and a Commander-in-Chief by the sovereign act of the people expressed in the EDSA Revolution - which is an act higher than an act of a military tribunal or of a civilian administrative tribunal - then it can reasonably be said that he was dishonorably separated as a President and dishonorably discharged as a Commander-in-Chief. During the oral arguments, Justice Carpio further clarified that a military personnel, who is a Medal of Valor awardee, retires from the military, joins the government, and while in government, he is dishonorably separated for an offense, then upon his death, he should not be qualified to be interred in the LNMB pursuant to the AFP Regulations themselves because LNMB, being a sacred and hallowed ground, would be besmirched.[141]
In the same manner, the disqualification of those who have been convicted by final judgment of an offense involving moral turpitude should be understood in its normal and ordinary acceptation. In his concurring opinion in Teves v. COMELEC,[142] Justice Brion cites the Black's Law Dictionary definition of moral turpitude as an "act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general," and Bouvier's Law Dictionary as including "everything which is done contrary to justice, honesty, modesty, or good morals." Citing In re Basa[143] and Zari v. Flores,[144] Justice Brion lists, among others, estafa, theft, murder, whether frustrated or attempted, attempted bribery, robbery, direct bribery, embezzlement, extortion, frustrated homicide, falsification of document, fabrication of evidence, evasion of income tax, and rape as crimes involving moral turpitude. The commission by a person of any such crimes when proven should surely disqualify him from being buried in the LNMB as it would blacken the sacredness and hallowedness of the LNMB.
In Republic v. Sandiganbayan,[145] a certiorari petition filed by the Republic of the Philippines (Republic) against the Sandiganbayan, former President Marcos, represented by his heirs: Imelda R. Marcos, Maria Imelda [Imee] Marcos-Manotoc, Ferdinand R. Marcos, Jr. and Irene Marcos-Araneta, and Imelda Romualdez Marcos, which sought to reinstate the Sandiganbayan's earlier decision dated September 19, 2000 that forfeited in favor of the Republic Swiss bank accounts in the aggregate amount of US$658,175,373.60 as of January 31, 2002, claimed by the Marcoses as theirs and held in escrow in the Philippine National Bank (PNB), this Court made this factual finding and ruling:
This Court, in Republic v. Sandiganbayan and Marcos, Jr. v. Republic, noted with approval the Solicitor General's evidence, culled from the Income Tax Returns (ITRs) and Balance Sheets filed by the Marcoses, that showed their total income from 1965 to 1984 in the amount of P16,408,442.00, with 67.71% thereof or P11,109,836.00 allegedly coming from the legal practice of the former President as compared to the official salaries of former President Marcos and Imelda R. Marcos of P2,627,581.00 or 16.01% of the total, and the Solicitor General's findings that:
That is not all. Section 2 of RA 10368 is a recognition by legislative fiat that "summary execution, torture, enforced or involuntary disappearance and other gross human rights violations [were] committed during the regime of former President Ferdinand E. Marcos covering from September 21, 1972 to February 25, 1986."
In two United States cases, the United States District Court of Hawaii[152] awarded US$1.2 Billion in exemplary damages and over US$770 Million in compensatory damages to 10,059 plaintiffs for acts of torture, summary execution, disappearance, arbitrary detention and numerous other atrocities, which the jury found former President Marcos personally liable for, and the US 9th Circuit Court of Appeals,[153] applying the "command responsibility" principle, ruled that the district court properly held former President Marcos liable for human rights abuses which occurred and which he knew about and failed to use his power to prevent.
The NHCP, in its study, "Why Ferdinand Marcos should not be buried at the Libingan ng mga Bayani," which it undertook as part of its mandate to conduct and disseminate historical research and resolve historical controversies, has concluded, among others, that former President Marcos had lied about receiving U.S. medals and that certain actions committed by him as a soldier amounted to "usurpation" and could be characterized as "illegal" and "malicious criminal act." Significantly, the NHCP opposes the proposed burial of former President Marcos.[154]
In the Memorandum filed by petitioners Rosales, et al., they question the basis of the Solicitor General's claim that former President Marcos was a Medal of Valor Awardee. Based on a copy of General Order No. 167 dated October 16, 1958 ("GO 167"), which is Annex "A" to the Rosales Memorandum, former President Marcos obtained not a Medal of Valor but a Medal for Valor. A reading of the contents of GO 167 reveals that the account of the purported Marcos' bravery therein had been debunked in the aforementioned study of the NHCP. There is thus reliable basis to seriously doubt the authenticity of the Medal of Valor award of former President Marcos. As the NHCP concluded:
Just as the LNMB should be looked at as one integral whole, as one and indivisible national shrine, despite the presence of a military grave site within its confines, former President Marcos should be viewed and judged in his totality. His soldier persona cannot be separated from his private citizen cum former President persona, and vice versa, unless by some miracle one can be excised from the other. Either the entire remains of former President Marcos are allowed to be buried in the LNMB or none of his parts. Whether as a soldier or as a President, former President Marcos does not deserve a resting place together with the heroes at the LNMB.
In the end, the argument that burying former President Marcos in the LNMB does not make him a hero disregards the status of the LNMB as a national shrine. And, even if the standards set forth in the AFP Regulations were to be followed, former President Marcos would still be disqualified to be interred in the LNMB.
Thus, recalling the earlier discussion on the second requirement of the President's power to reserve, it is now clear that the interment violates the specific public purpose, i.e., national shrine purposes/policies, for which the LNMB was reserved.
To recapitulate, the order to inter former President Marcos in the LNMB is clearly contrary to law (PD 105, RA 10066, RA 10086, and the presidential issuances abovementioned), the AFP Regulations, and the public policy that the said laws, executive issuances, and regulations espouse and advance. In light of the foregoing violations, it is also clear that the interment cannot be justified by the exercise of the President's power of control and duty to faithfully execute laws.
The 1987 Constitution
The ponencia disposes of petitioners' invocation of the provisions of Article II of the Constitution by holding that these are not self-executing, citing Tañada v. Angara. However, it fails to recognize at the same time that, since then, several laws have been passed that "enabled" Article II, Section 11, among which are RA 10353[155] and RA 10368. In this respect, the applicability of these laws, especially RA 10368, as basis to oppose the proposed interment will be addressed below.
The applicable treaties and international law principles stand to be violated with the burial of former President Marcos in the LNMB.
Article II, Section 2 of the 1987 Constitution provides that the Philippines "adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations". One of these principles - as recognized by this Court in a long line of decisions[156] - is the rule of pacta sunt servanda in Article 26[157] of the 1969 Vienna Convention on the Law of Treaties[158] ("VCLT"), or the performance in good faith of a State's treaty obligations. Borrowing the words of this Court in Agustin v. Edu,[159] "[i]t is not for this country to repudiate a commitment to which it had pledged its word. The concept of pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality."[160]
The Philippines became signatory to the Universal Declaration on Human Rights ("UDHR"),[161] and State-party, without reservations, to the International Covenant on Civil and Political Rights ("ICCPR")[162] on October 23, 1966, the Rome Statute[163] on August 30, 2011, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") on June 18, 1986.[164]
The UDHR is an international document recognizing inalienable human rights, which eventually led to the creation of several legally-binding treaties, such as the ICCPR and International Covenant on Economic, Social and Cultural Rights ("ICESCR").[165] The Philippines signed the UDHR because of its recognition of the rights and values enumerated in the UDHR, and it is that same recognition that led the Philippines to sign and ratify both the ICCPR and the ICESCR.[166]
Article VII, Section 21[167] and Article II, Section 2 of the Constitution[168] adopt the doctrine of transformation. Treaties, which have been duly entered and ratified pursuant to the Constitution, must be transformed into municipal law so that they can be applied to domestic conflicts.[169] Once so transformed, treaty obligations enjoy the same legal force and effect as domestic statutes.[170]
The CAT was transformed by virtue ofRepublic Act 9745 or the "AntiTorture Act of 2009".[171] Subsequently, echoing its commitment to the UDHR, the Philippines transformed its obligations under the ICCPR and the CAT, on July 23, 2012, with the enactment of Republic Act No. 10368. The enactment of RA 10368 is, in truth, in fulfillment of the country's duty under Article 2(2) of the ICCPR to "take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant."
Section 2 of RA 10368, echoing the State's policy enshrined in Article II, Section 11 of the Constitution on the value of the dignity of every human person and the guarantee of full respect for human rights, is an acknowledgment of the Philippines' obligations as State-party to the UDHR, ICCPR, and the CAT.
Particularly, in enacting RA 10368, the Philippines categorically recognized its obligation to: (1) "give effect to the rights recognized [in the UDHR, ICCPR and the CAT]"[172] (2) ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity; (3) "recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986"; and (4) "restore the victims' honor and dignity."
More importantly, the Philippines acknowledged, through RA 10368, its "moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime" and to "acknowledge the sufferings and damages inflicted upon persons whose properties or businesses were forcibly taken over, sequestered or used, or those whose professions were damaged and/or impaired, or those whose freedom of movement was restricted, and/or such other victims of the violations of the Bill of Rights."[173]
The obligations listed in Section 2 of RA 10368 are not to be read in a vacuum. Neither should they be read as bounded by the four comers of that law.
Considering that the enactment of RA 10368 was precisely to "give effect"[174] to the rights of human rights victims recognized in the ICCPR and the CAT, which the Philippines ratified without reservations,[175] then RA 10368 must be understood and interpreted within the broader context of the treaties which it effectuates. Consistent with this, I concur with the Chief Justice's discussion on the proper interpretation of the rights of HRVVs and the corollary state obligations under RA 10368.
It is very significant to note that RA 10368, Section 2 which provides: "x x x the Universal Declaration of Human Rights, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity" is an almost verbatim reproduction of Article 2(3) of the ICCPR,[176] which provides:
Finally, decisions of various tribunals[180] authorize the use of the text of the relevant convention as an aid to interpretation even if the statute does not incorporate the convention or even refer to it.
Given the foregoing, which are the parameters that are considered in understanding and interpreting RA 10368, the question before the Court is how to determine whether petitioners, who claim to be victims of human rights violations under the Marcos martial law regime,[181] can rightfully be considered HRVVs.
In an attempt to strip MLHRV petitioners of their characterization as HRVVs and to dilute their rights as such, the Solicitor General argues that the lack of specific mention of "state agents" in Sec. 3 of RA 10368 means that former President Marcos could not be held liable as Commander-in-Chief for human rights abuses suffered by them.[182] This argument, however, fails to consider the 2001 Articles on Responsibility of States for Internationally Wrongful Acts or the Articles on State Responsibility ("ASR").[183]
Contrary to the Solicitor General's claims, the absence of the words "state agents" in RA 10368 does not, by itself, remove the basis for holding former President Marcos liable as Commander-in-Chief of the armed forces for the crimes committed during his martial law regime. To begin with, the principle of "state agents" would only be relevant for purposes of attributing responsibility to a State, as reflected in Article 4 of the ASR, viz:
It is also incorrect to argue that the application of "command responsibility" to former President Marcos would violate the constitutional prohibition on bills of attainder and ex post facto laws.[184]
In Hilao v. Estate of Ferdinand Marcos,[185] the "command responsibility" principle was applied to hold former President Marcos liable for human rights abuses during his martial law regime, which occurred and which he knew about and failed to use his power to prevent. In In Re: Estate of Marcos,[186] it was ruled that the estate of former President Marcos was not immune even if the acts of torture, execution, and disappearance were clearly acts outside of his authority as President and were not taken within any official mandate.
While the foregoing cases were decided by United States of America courts, the rulings therein are binding in this jurisdiction by virtue of the act of state doctrine. The act of state doctrine is the "recognition by a country of the legal and physical consequences of all acts of state in other countries,"[187] and "a recognition of the effects of sovereignty, the attributes and prerogatives of sovereign power."[188] In Presidential Commission on Good Government v. Sandiganbayan and Officeco Holdings N.V.,[189] this Court had occasion to rule that the act of state doctrine prohibits States from sitting in judgment on the acts of the government of another State done within its territory.[190] It requires the forum court to exercise restraint in the adjudication of disputes by foreign courts performed within its jurisdiction.[191]
Simply put, convicting former President Marcos for whatever past crimes he might have committed would not only be legally untenable but also absurd; however, the Court must recognize what has already been previously and legally determined and settled.
In light of the foregoing, and given the fact that MLHRV petitioners, who by their personal accounts (narrated during the Oral Arguments held on August 31, 2016)[192] and as alleged under oath in their respective petitions, have suffered human rights violations during martial law, there is no legal obstacle in recognizing them as HRVVs as this is defined under RA 10368. As HRVVs, they have several rights under international law, which the State has the duty to protect.
As culled from the primary sources of international law (the ICCPR and the CAT), and the subsidiary sources of international law-namely, the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law ("UN Guidelines") - as well as RA 10368, HRVVs are entitled to the following rights: (1) the non-derogable right to an effective remedy; (2) the right against re-traumatization; (3) the right to truth and the State's corollary duty to preserve memory; and (4) the right to reparation.
1. The right to an effective remedy
Prescinding from the various laws that have been enacted by the Philippine legislature to promote and protect human rights[193] and the availability of judicial remedies,[194] it must be clarified that the Philippines' obligations do not cease by the mere enactment of laws or the availability of judicial remedies. Article 2 of the ICCPR provides:
This is not the first time this Court has been asked to recognize the obligatory nature of the ICCPR and the General Comments interpreting their provisions. In Echegaray v. Secretary of Justice,[196] the Court recognized the binding nature of the ICCPR and relied on General Comment 6 (to Article 6 of the ICCPR) to resolve the issues raised by petitioner Echegaray with respect to the death penalty allegedly violating the Philippines' international obligations. In Razon, Jr. v. Tagitis[197] the Court relied upon the U.N. Human Rights Committee ("UNHRC")'s interpretation of Article 2 of the ICCPR on the right to an effective domestic remedy. According to the UNHRC, the act of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may also amount to a crime against humanity.[198]
The obligation to provide effective remedy, and concurrently, to prevent a recurrence, by its nature, is not discharged by the mere passage of laws. This obligation, by necessity, is a continuing one.
2. The right to he protected from re-traumatization
Petitioner Latiph claims that the burial of former President Marcos in "a state funeral as a hero and extending to him full military honors"[199] violates the Philippines' obligations under the UN Guidelines.[200] In response, the Solicitor General merely stated that the premise of these alleged violations is "flawed"[201], in that there is no causal relation between the Philippines' compliance with its international law obligations and former President Marcos burial at the LNMB.
First of all, the claim that the Philippines is not bound by the UN Guidelines because they are merely "guidelines" and "not treaties"[202] or "sources of international law"[203] is inaccurate. While it is true that a treaty only binds States parties to it and generally does not create obligations for States not parties to it pursuant to the principle of pacta tertiis nec nocent nec prosunt,[204] the rule does not operate to preclude the application of the UN Guidelines to the Philippines. This is because the UN Guidelines do not create new international or domestic legal obligations, but merely identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law.[205]
Quite the contrary, and as earlier adverted to,[206] the UN Guidelines constitute subsidiary sources of International Law under Article 38(1)(d) of the ICJ Statute. Principle 10 of the UN Guidelines, pertaining to the treatment of victims, provides:
Based on the narrations of the HRVV petitioners, it is the intended interment that would reopen wounds and re-traumatize them. In this regard, international law has recognized that impunity must be considered as a continued and ongoing form oftorture.[207] To bury the architect of martial law in the LNMB would be an act of impunity.
3. The right to truth and the States' duty to preserve memory[208]
Under Principle 2 of the UN Principles on Impunity[209], the right to truth pertains to the right to know about past events concerning the violations and about the circumstances and reasons that led to the perpetration of those crimes.
The duty to preserve memory, in Principle 3 of the UN Principles on Impunity, requires that people's knowledge of the history of its oppression be part of its heritage and as such, must be ensured by appropriate measures in fulfilment of the State's duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
The burial of former President Marcos in the LNMB which, as already explained, is not a mere cemetery but a memorial for heroes, will certainly not further or advance the Philippines' obligation to accord HRVVs their right to truth and preserve memory. Indeed, such an act would blur the real role of former President Marcos in the country's history and in the human rights abuses that the HRVVs suffered under his martial law regime. This is the causal connection between the proposed interment and the violation of the HRVV's right to truth, and the Philippines' duty to preserve memory.
4. The right to specific forms of reparation for harm suffered under Principles 19, 21, 22, 23 of the UN Guidelines
The Solicitor General claims that the "Philippines had already taken legislative and other measures to give effect to human rights, and provided not only adequate remedies against human rights violations and procedures for the investigation of these violations and for the prosecution of the perpetrators thereof and the penalties therefor, but also reparation to victims."[210] He further claims that RA 10368 has no bearing on the powers of the President and his subordinates under the Constitution and E.O. 292 and that HRVVs can be very assured that the interment of the remains of the former President Marcos at the Libingan will neither prevent them from claiming any entitlements to reparations under RA 10368 nor dilute their claims, moral or legal, monetary or non-monetary, thereunder.[211]
In other words, the Solicitor General is saying that the existence of severallaws[212] and the judicial decisions describing former President Marcos as a plunderer and human rights violator already "restored the dignities and reputation of the victims of the regime"[213] and constitute sufficient reparation to the HRVVs.
I cannot agree. The UN Guidelines, as cited in the CHR's Memorandum, and as explained by CHR Chairman Chito Gascon during the Oral Arguments, provide five general forms of reparation: (1) restitution, (2) compensation, (3) rehabilitation, (4) satisfaction and (5) guarantees of non repetition.
Restitution requires that the victim be restored to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred.
Compensation is provided for any economically assessable damage resulting from gross violations of human rights. In this regard, Article 14 of the CAT requires State-parties to ensure in its legal system that "the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full [a] rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation."
Rehabilitation includes medical and psychological care as well as legal and social services. There are a number of definitions of rehabilitation.[214] General Comment 3 to Article 14 of the CAT suggests that rehabilitation "should be holistic and include medical and psychological care as well as legal and social services." Rehabilitation for victims should aim to restore, as far as possible, their independence, physical, mental, social and vocational ability; and full inclusion and participation in society.[215]
Satisfaction includes, among others: (i) the "verification of the facts and full and public disclosure of the truth to assist the victim or prevent the occurrence of further violations," (ii) an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; (iii) a public apology, (iv) commemorations and tributes to victims, and (v) the inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.
Guarantees of non-repetition pertain to measures that may be taken which will contribute to the prevention of the reoccurrence of the human rights violations. This includes "strengthening the independence of the judiciary."
Notably, the Human Rights Committee, in General Comment No. 2 (1992) and General Comment No. 31 (2004)[216] defined rehabilitation as a form of reparation. In particular, General Comment No. 20 states that amnesties are unacceptable, among other reasons, because they would "deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible."
The arguments of the Solicitor General are thus belied, and shown to be erroneous, by the breadth and extensiveness of the above-described forms of reparation.
To summarize, there is sufficient basis to rule that the burial of former President Marcos in the LNMB will violate certain international law principles and obligations, which the Philippines has adopted and must abide by, and RA 10368 which transformed the principle and State policy expressed in Article II, Section 11 of the Constitution which states: "The State values the dignity of every human person and guarantees full respect for human rights". In this sense, therefore, a violation of RA 10368 is tantamount to a violation of Article II, Section 11 of the Constitution.
Summation
For all the reasons stated, the directive to inter former President Marcos in the LNMB constitutes grave abuse of discretion amounting to lack or excess of jurisdiction for being in violation of: (1) Presidential Proclamations 86 and 208, (2) PD 105, (3) RA 10066, (4) RA 10086, (5) AFP Regulations G 161-375 and (6) RA 10368, which is tantamount to a violation of Article II, Section 11 of the Constitution.
When all is said and done, when the cortege led by pallbearers has reached the plot in the LNMB dedicated to the newest "hero" of the land and the coffin containing what is claimed to be the remains of former President Marcos has been finally buried in the ground or entombed above ground, this DISSENT, along with the dissents of the Chief Justice and Justices Carpio and Leonen, will be a fitting eulogy to the slaying of the might of judicial power envisioned in the 1987 Freedom Constitution by the unbridled exercise of presidential prerogative using vox populi as the convenient excuse.
Above all, this is a tribute to the fallen, desaparecidos, tortured, abused, incarcerated and victimized so that the dictator could perpetuate his martial rule, and to those who fought to attain the freedom which led to the very Constitution from which this Court derives the power to make the decision that it reached today - that their sacrifices, sufferings and struggles in the name of democracy would be duly acknowledged and immortalized.
[1] Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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.
[2] Lagman Petition, p. 3, par. 5.
[3] G.R. 205728, January 21, 2015, 747 SCRA 1.
[4] 258 Phil. 479 (1989).
[5] 392 Phil. 618 (2000).
[6] 406 Phil. 1 (2001).
[7] 460 Phil. 830 (2003).
[8] OSG Consolidated Comment, I.A., p. 24.
[9] Supra, par. 55, p. 24.
[10] OSG Consolidated Comment, par. 51, p. 24; Public Respondent's Memorandum, par. 55, p. 27.
[11] 623 Phil. 63 (2009).
[12] 721 Phil. 416 (2013).
[13] 103 Phil. 1051 (1957).
[14] Supra note 7, at 910.
[15] Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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.
[16] Supra note 7, at 911-912.
[17] Id.
[18] Supra note 13.
[19] Id. at 1066-1067 (emphasis supplied).
[20] OSG Consolidated Comment, par. 60. p. 25; Public Respondents' Memorandum, par. 62, p. 29.
[21] OSG Consolidated Comment, par. 61, p. 26; Public Respondents' Memorandum, par. 63, p. 29.
[22] OSG Consolidated Comment, par. 3, p. 5.
[23] Supra, Prefatory Statement, pp. 3-5.
[24] Francisco v. The House of Representatives, supra note 7, at 889-890.
[25] Belgica v. Ochoa, supra note 12, at 518-519.
[26] Id. at 519, citing Joya v. Presidential Commission on Good Government, 296-A Phil. 595, 602 (1993).
[27] Id. at 519-520.
[28] Gov't now preparing for Marcos burial at Libingan, available at <http://www.rappler.com/nation/142266-philippines-malacanang-preparations-ferdinand-marcos-burial-libingan-ng-mga-bavani>, last accessed on October 17, 2016.
[29] Araullo v. Aquino, 737 Phil. 457, 535 (2014), citing Black's Law Dictionary, 941 (6th Ed. 1991).
[30] Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, etc. April 8, 2014, 721 SCRA 146, citing Anak Mindanao Party-list Group v. Ermita, 558 Phil. 338, 350 (2007).
[31] Galicto v. Aquino, 683 Phil. 141, 170 (2012).
[32] 450 Phil. 744, 803 (2003).
[33] Francisco v. The House of Representatives, supra note 7, at 895.
[34] Osmena III v. PSALM, G.R. No. 212686, September 28, 2015, p. 9.
[35] Chavez v. JBC, 691 Phil. 173, 196 (2012).
[36] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 589 Phil. 387, 486 (2008).
[37] See Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), id. at 487.
[38] David v. Macapagal-Arroyo, 522 Phil. 705, 763 (2006).
[39] Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 442 (2010).
[40] Jardeleza v. Sereno, G.R. No. 213181, August 19, 2014, 733 SCRA 279, 328, citing Araullo v. Aquino, supra at 531; Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015.
[41] Supra note 29.
[42] Id. at 531.
[43] Supra note 3.
[44] 693 Phil. 399, 412 (2012).
[45] Supra note 3, at 42-43.
[46] The Diocese of Bacolod v. COMELEC, id. at 44-49.
[47] G.R. No. l12497, August 4, 1994, 235 SCRA 135.
[48] Id. at 140.
[49] Palace: Hero's burial for Marcos to proceed unless there's a TRO, available at <http://www.gmanetwork.com/news/story/577948/news/nation/palace-hero-s-burial-for-marcos-toproceed-unless-there-s-a-tro>, last accessed on October 17, 2016.
[50] Palace clueless on who will pay for Marcos funeral, available at <http://manilastandardtoday.com/news/-main-stories/top-stories/213621/palace-clueless-on-who-will-pay-for-marcos-funeral.html>, last accessed on October 17, 2016.
[51] Duterte confirms Marcos burial at the Libingan ng mga Bayani, available at <http://cnnphilippines.com/news/2016/08/07/marcos-libingan-ng-mga-bayani-burial.html>, last accessed on October 17, 2016.
[52] The Diocese of Bacolod v. COMELEC, supra note 3, at 59-60, citing Spouses Chua v. Ang, 614 Phil. 416, 425-426 (2009).
[53] 654 Phil. 755, 761-762 (2011), citing Republic v. Lacap, G.R. No. 158253, March 2, 2007.
[54] Duterte asked to reconsider Marcos burial at Libingan ng mga Bayani, available at <http://www.gmanetwork.com/news/story/568973/news/nation/duterte-asked-to-reconsider-marcosburial-at-libingan-ng-mga-bayani>, last accessed on October 17, 2016; Duterte: Follow the law on hero's burial for Marcos available at <http://news.abs-cbn.com/news/08/ll/16/duterte-follow-the-lawon-heros-burial-for-marcos>, last accessed on October 17, 2016.
[55] See Perez v. Court of Appeals, 516 Phil. 204, 209 (2006); Dueñas, Jr. v. House of Representative Electoral Tribunal, 610 Phil. 730, 760 (2009).
[56] See Spouses Balangauan v. CA, et al., 584 Phil. 183 (2008); Banal III v. Panganiban, et al., 511 Phil. 605 (2005); Republic of the Philippines v. COCOFED, 423 Phil. 735 (2001).
[57] OSG Comment 131-138, pp. 42-44.
[58] OSG Comment 131-138, pp. 42-44.
[59] Under Section 4, Chapter II of Book III, Title I of the Revised Administrative Code, a proclamation is an act of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend.
[60] CA 141, Sec. 64(d) and (e).
[61] CA 141, Sec. 86 to 88.
[62] 123 Phil. 698 (1966).
[63] 512 Phil. 644, 646 (2005).
[64] "The matter to be considered then is whether there is any law that directs or authorizes the President to release a disposable public land from a reservation previously made" (Republic v. Octobre, supra note 62, at 701).
[65] TSN, August 31, 2016, pp. 55-63.
[66] TSN, September 7, 2016, pp. 139-141.
[67] There has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use". Under the more current concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project (Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SCRA 461 [1987]). (Province of Camarines Sur v. Court of Appeals, G.R. No. 103125, May 17, 1993).
[68] 110 Phil. 331 (1960).
[69] Id. at 340. Emphasis and underscoring supplied.
[70] TSN, September 7, 2016, pp. 39-40.
[71] Supra note 62, at 700-701.
[72] Italics supplied.
[73] Ham v. Bachrach Motor Co., Inc., 109 Phil. 949-957 (1960).
[74] 597 Phil. 649, 661 (2009).
[75] Biraogo v. Philippine Truth Commission of 2010, supra note 39, at 538-539.
[76] OSG Memorandum or Consolidated Comment.
[77] 345 Phil. 961 (1997).
[78] Id. at 979.
[79] 466 Phil. 482 (2004).
[80] Id. at 518.
[81] Marcos v. Manglapus, supra note 4; Sanlakas v. Reyes, supra note 79; and Integrated Bar of the Philippines v. Zamora, supra note 5.
[82] Supra note 4.
[83] Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, and Imee Manotoc.
[84] Marcos v. Manglapus, supra note 4, at 506-508.
[85] Supra note 5.
[86] Integrated Bar of the Philippines v. Zamora, supra note 5, at 638-645.
[87] Not to be confused with a "truly political question" pursuant to the Francisco v. HRET formulation.
[88] Rule 129, Section 1 provides that judicial notice is mandatory with respect to "the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions," while Section 2 provides that judicial notice is discretionary with respect to matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.
[89] TSN, September 7, 2016, pp. 50-51.
[90] Ferdinand "Bongbong" R. Marcos, Jr.
[91] Representative Imelda R. Marcos.
[92] Ilocos Norte Governor Imee Marcos.
[93] In Re: Estate of Marcos Human Rights Litigation, 910 F. Supp. 1460 (D. Haw. 1995), upheld in Hilao v. Marcos, 103. F.3d 762 (9th Cir. 1996).
[94] What Is Forgiveness?, available at<http://greatergood.berkeley.edu/topic/forgiveness/definition>, last accessed on October 17, 2016.
[95] Id.
[96] Id.
[97] Public Respondents' Memorandum, p. 4.
[98] Id.
[99] Id.
[100] Marcos v. Manglapus, supra note 4, at 507-508.
[101] "Psyche", available at <http://www.merriam-webster.com/dictionary/psyche>, last accessed on October 17, 2016.
[102] http://www.dictionary.com/browse/psyche, last accessed on October 17, 2016.
[103] TSN, September 7, 2016, pp. 83-87.
[104] Despite tourism loss, Batac mayor backs hero's burial for Marcos, available at <http://www.rappler.com/nation/145804-batac-mayor-her-burial-marcos>, last accessed on October 17, 2016.
[105] Sec. 1, RA 289.
[106] Sec. 2., id.
[107] P.D. No. 105, 3rd Whereas Clause.
[108] Presidential Decree No. 1682.
[109] R.A. 10796 (2016).
[110] http://www.gmanetwork.com/news/story/579292/news/nation/duterte-leads-national-heroes-day-rites; http://news.abs-cbn.com/news/08/29/16/look-duterte-leads-national-heroes-day-rites, last accessed on October 17, 2016.
[111] July 23, 1968 (Declaring the Tirad Pass National Park as Tirad Pass National Shrine, Proclamation No. 433, [1968]).
[112] May 27, 1967 (Reserving for National Shrine Purposes a Certain Parcel of Land of the Private Domain Situated in the District of Malate, City of Manila, Proclamation No. 207, [1967]).
[113] Reserving Certain Parcel of Land of the Private Domain in Baras, Palo, Leyte for the Province of Leyte, PROCLAMATION NO. 1272, [1974].
[114] April 18, 1966 (Excluding from the Operation of Proclamation No. 24, s. 1945, Proclamation No. 25, [1966]).
[115] March 27, 1973 (Reserving for Memorial Shrine for the War Dead a Certain Parcel of Land of the Public Domain in Cavinti, Laguna, PROCLAMATION NO. 1123, [1973]).
[116] Declaring the "Bantayog sa Kiangan" as a Military Shrine, Proclamation No. 1460, [1975].
[117] Declaring the Kiangan War Memorial Shrine in Linda, Kiangan, Ifugao as a National Shrine, Proclamation No. 1682, [1977].
[118] Amending Part XII (Education) and Part XIX (National Security) of the Integrated Reorganization Plan, Presidential Decree No. 1076, [1977].
[119] Second and Third Whereas Clauses of PD 1076.
[120] National Cultural Heritage Act of 2009, Republic Act No. 10066, March 24, 2010.
[121] Article 2(a) of RA 10066.
[122] Strengthening Peoples' Nationalism Through Philippine History Act, Republic Act No. 10086, May 12, 2010.
[123] Section 2, RA 10086.
[124] National Cultural Heritage Act of 2009, Republic Act No. 10066, March 24, 2010.
[125] Section 4, RA 10066 uses the term "national historical shrine".
[126] Section 3, RA 10066.
[127] Section 48, id.
[128] Section 31, id.
[129] Section 3(n), RA 10086.
[130] Sections 7(d) and (n), id.
[131] Sections 3(b), 7(e) and 20, id.
[132] Section 3(i) in RA 10066 and Section 3(c), id.
[133] Annex 6, Consolidated Comment.
[134] Annex 7, Consolidated Comment.
[135] AFP Regulations G 161-375.
[136] The Requisites of Custom are (1) a number of acts; (2) uniformity: (3) juridical intent; (4) lapse of time; and not contrary to law. 1 Manresa p. 76.
[137] AFP Regulations G 161-374; AFP Regulations G 161-375. Emphasis supplied.
[138] Id; id. Emphasis supplied.
[139] http://corregidorisland.com/bayani/libingan.html.
[140] Pabillo v. COMELEC, G.R. Nos. 216098 & 216562, April 21, 2015, 756 SCRA 606, 672.
[141] TSN, August 31, 2016, p. 55.
[142] 604 Phil. 717, 735-742 (2009).
[143] 41 Phil. 275 (1920).
[144] 94 SCRA 317.
[145] 453 Phil. 1059 (2003).
[146] Id. at 1149.
[147] 686 Phil. 980 (2012).
[148] Republic v. Sandiganbayan, supra note 146, at 1091; Marcos, Jr. v. Republic, id. at 1003-1004.
[149] Republic v. Sandiganbayan, id. at 1093.
[150] Supra note 4, at 509.
[151] 243 Phil. 93, 107 (1988).
[152] In Re Estate of Marcos Human Rights Litigation, 910 F. Supp. 1460 (D. Haw. 1995).
[153] Hilao v. Marcos, 103 F.3rd 762 (9th Cir. 1996).
[154] The NHCP is the independent government entity that has the mandate to resolve, with finality, issues or conflicts on Philippine history.
[155] "Anti-Enforced or Involuntary Disappearance Act of 2012".
[156] Government of Hongkong Special Administrative Region v. Muñoz, G.R. No. 207342, August 16, 2016; Commissioner of Internal Revenue v. Pilipinas Shell Petroleum Corp., 727 Phil. 506 (2014); Bayan v. Zamora, 396 Phil. 623 (2000); Magallona v. Ermita, G.R. No. 187167, August 16, 2011; Bayan Muna v. Romulo, 656 Phil. 246 (2011); CBK Power Company Ltd. v. Commissioner of Internal Revenue, G.R. Nos. 193383-84 & 193407-08, January 14, 2015, 746 SCRA 93; Abaya v. Ebdane, Jr., 544 Phil. 645 (2007); Department of Budget and Management Procurement Service (DBM-PS) v. Kolonwel Trading, 551 Phil. 1030 (2007); Deutsche Bank AG v. Commissioner of Internal Revenue, 716 Phil. 676 (2013); Secretary of Justice v. Lantion, 379 Phil. 165 (2000); La Chemise Lacoste, S.A. v. Fernandez, 214 Phil. 332 (1984); Tañada v. Angara, 338 Phil. 546, 592 (1997); Pharmaceutical and Health Care Association of the Phils. v. Duque III, 561 Phil. 386 (2007).
[157] "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."
[158] 1155 U.N.T.S. 331, 8 I.L.M. 679, opened for signature May 23, 1969, entered into force Jan. 27, 1980.
[159] G.R. No. L-49112 February 2, 1979.
[160] Agustin v. Edu, G.R. No. L-49112 February 2, 1979.
[161] Adopted by the United Nations General Assembly on December 10, 1948; see Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700 (Dissenting Opinion, March 8, 2016.
[162] 999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967); the Philippines signed the ICCPR on December 19, 1966 and ratified the same on October 23, 1986.
[163] A/CONF.183/9 of 17 July 1998.
[164] The Philippines ratified the CAT on June 26, 1987.
[165] The Philippines signed the ICESCR on December 19, 1966 and ratified the same on June 07, 1974; see: J. von Bernstorff. "The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law" 19 (5) European Journal of International Law 903, 913-914 (2008), cited in Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700 (Dissenting Opinion), March 8, 2016.
[166] See: Secretary of National Defense v. Manalo, 589 Phil. 1, 50-51 (2008) and Separate Opinion of C.J. Puno in Republic v. Sandiganbayan, in Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700 (Dissenting Opinion), March 8, 2016.
[167] Art. VII, Sec. 21. "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate."
[168] Art. II, Sec. 2. "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."
[169] Pharmaceutical and Health Care Association of the Phils. v. Duque III, supra note 156; Commissioner of Customs v. Eastern Sea Trading, No. L-14279, October 31, 1961, 3 SCRA 351, 356 cited in Intellectual Property Association of the Philippines v. Ochoa, G.R. No. 204605, July 19, 2016.
[170] Secretary of Justice v. Ralph Lantion, supra note 156.
[171] AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING PENALTIES THEREFOR, November 10, 2009.
[172] R.A. 10368, Sec. 2. "x x x By virtue of Section 2 of Article II of the Constitution adopting generally accepted principles of international law as part of the law of the land, the Philippines adheres to international human rights laws and conventions, the Universal Declaration of Human Rights, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity. x x x"
[173] R.A. 10368, Sec. 2.
[174] R.A. 10368, Sec. 2. "x x x By virtue of Section 2 of Article II of the Constitution adopting generally accepted principles of international law as part of the law of the land, the Philippines adheres to international human rights laws and conventions, the Universal Declaration of Human Rights, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity. In fact, the right to a remedy is itself guaranteed under existing human rights treaties and/or customary international law, being peremptory in character (jus cogens) and as such has been recognized as non-derogable.
Consistent with the foregoing, it is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime. x x x"
[175] On May 23, 1969 - the very same day the Convention was opened for signature - the Philippines signed the 1969 Vienna Convention on the Law ofTreaties ("VCLT") (1155 U.N.T.S. 331, 8 I.L.M 679, opened for signature May 23, 1969, entered into force Jan. 27, 1980) and ratified the same on November 15, 1972. Enshrined in Article 26 of the VCLT is the principle of pacta sunt servanda, which requires that "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith" (1969 VCLT 1155 U.N.T.S. 331, 8 I.L.M 679, art. 26.).
Further, pursuant to the principle of pacta tertiis nec nocent nec prosunt (1969 VCLT, art. 34. "A treaty does not create either obligations or rights for a third State without its consent"; see in Brownlie, Principles of Public International Law 598, 6th ed., 2003) under Article 34 of the VCLT, treaties bind only States parties to it (Id.). Consequently, in cases where a State does not want certain provisions of a treaty to apply to it, such exception must be expressed by the State by means of a reservation, done at the time the State ratifies the treaty (Art. 2(1)(d), 1969 VCLT).
A reservation is a unilateral statement made by a State whereby the State "purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State" (Art. 2(1)(d), 1969 VCLT). In addition, the reservation must be made "when signing, ratifying, accepting, approving, or acceding to a treaty" (Id). In effect, a reservation removes the obligation referred to by the State from its legal obligations arising from that treaty (Rhona K.M. Smith, Texts and Materials on International Human Rights 67 (2013)). No such reservations have been made by the Philippines when it to the ICCPR, the Rome Statute, and the CAT.
[176] Sec. 2.
[177] Art. 38(1)(d). "[s]ubject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law".
[178] 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 AJIL Supp. 215 (1945).
[179] Article 93 (1). All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.
[180] Ian Brownlie, Principles of Public International Law 45 (6th ed., 2003), citing Salomon v. Commissioners of Customs and Excise [1967], 2 QB 116, CA, at 141 (per Lord Denning, MR), 143 (per Dip1ock, LJ); ILR 41; Post Office v. Estuary Radio [1967] 1 WLR 1396, CA, at 1404; [1968] 2 QB 740 at 757; Cococraft Ltd. V. Pan American Airways Inc. [1969] 1 QB 616; [1968] 3 WLR 1273, CA at 1281.
[181] Hereinafter referred to as "MLHRV".
[182] OSG Memorandum, par. 245, p. 93.
During the campaign period for the 2016 Presidential Election, then candidate Rodrigo R. Duterte (Duterte) publicly announced that he would allow the burial of former President Ferdinand E. Marcos (Marcos) at the Libingan Ng Mga Bayani (LNMB). He won the May 9, 2016 election, garnering 16,601,997 votes. At noon of June 30, 2016, he formally assumed his office at the Rizal Hall in the Malacañan Palace.
On August 7, 2016, public respondent Secretary of National Defense Delfin N. Lorenzana issued a Memorandum to the public respondent Chief of Staff of the Armed Forces of the Philippines (AFP), General Ricardo R. Visaya, regarding the interment of Marcos at the LNMB, to wit:
Subject: Interment of the late Former President Ferdinand Marcos at LNMBOn August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the following directives to the Philippine Army (PA) Commanding General:
Reference: Verbal Order of President Rodrigo Duterte on July 11, 2016.
In compliance to (sic) the verbal order of the President to implement his election campaign promise to have the remains of the late former President Ferdinand E. Marcos be interred at the Libingan ng mga Bayani, kindly undertake all the necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security requirements. Coordinate closely with the Marcos family regarding the date of interment and the transport of the late former President's remains from Ilocos Norte to the LNMB.
The overall OPR for this activity will [be] the PVAO since the LNMB is under its supervision and administration. PVAO shall designate the focal person for this activity who shall be the overall overseer of the event.
Submit your Implementing Plan to my office as soon as possible.[1]
SUBJECT: Funeral Honors and ServiceDissatisfied with the foregoing issuance, the following were filed by petitioners:
TO: Commanding General, Philippine Army
Headquarters, Philippine Army
Fort Bonifacio, Taguig City
Attn: Assistant Chief of Staff for RRA, G9
- Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14 July 1992, provide services, honors and other courtesies for the late Former President Ferdinand E. Marcos as indicated:
[x] Vigil - Provide vigil
[x] Bugler/Drummer
[x] Firing Party
[x] Military Host/Pallbearers
[x] Escort and Transportation
[x] Arrival/Departure Honors- His remains lie in state at Ilocos Norte
- Interment will take place at the Libingan ng mga Bayani, Ft. Bonifacio, Taguig City. Date: TBAL.
- Provide all necessary military honors accorded for a President
- POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA[2]
1. Petition for Certiorari and Prohibition[3] filed by Saturnino Ocampo and several others,[4] in their capacities as human rights advocates or human rights violations victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013).
2. Petition for Certiorari-in-Intervention[5] filed by Rene A.V. Saguisag, Sr. and his son,[6] as members of the Bar and human rights lawyers, and his grandchild.[7]
3. Petition for Prohibition[8] filed by Representative Edcel C. Lagman, in his personal capacity, as member of the House of Representatives and as Honorary Chairperson of Families of Victims of Involuntary Disappearance (FIND), a duly-registered corporation and organization of victims and families of enforced disappearance, mostly during the martial law regime of the former President Marcos, and several others,[9] in their official capacities as duly-elected Congressmen of the House of Representatives of the Philippines.
4. Petition for Prohibition[10] filed by Loretta Ann Pargas-Rosales, former Chairperson of the Commission on Human Rights, and several others,[11] suing as victims of State-sanctioned human rights violations during the martial law regime of Marcos.
5. Petition for Mandamus and Prohibition[12] filed by Heherson T. Alvarez, former Senator of the Republic of the Philippines, who fought to oust the dictatorship of Marcos, and several others,[13] as concerned Filipino citizens and taxpayers.
6. Petition for Certiorari and Prohibition[14] filed by Zaira Patricia B. Baniaga and several others,[15] as concerned Filipino citizens and taxpayers.
7. Petition for Certiorari and Prohibition[16] filed by Algamar A. Latiph, former Chairperson of the Regional Human Rights Commission, Autonomous Region in Muslim Mindanao, by himself and on behalf of the Moro[17] who are victims of human rights during the martial law regime of Marcos.
8. Petition for Certiorari and Prohibition[18] filed by Leila M. De Lima as member of the Senate of the Republic of the Philippines, public official and concerned citizen.
1. Whether President Duterte's determination to have the remains of Marcos interred at the LNMB poses a justiciable controversy.
2. Whether petitioners have locus standi to file the instant petitions.
3. Whether petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts.
1. Whether the respondents Secretary of National Defense and AFP Rear Admiral committed grave abuse of discretion, amounting to lack or excess of jurisdiction, when they issued the assailed memorandum and directive in compliance with the verbal order of President Duterte to implement his election campaign promise to have the remains of Marcos interred at the LNMB.
2. Whether the Issuance and implementation of the assailed memorandum and directive violate the Constitution, domestic and international laws, particularly:
(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1 of Article III, Section 17 of Article VII, Section 1 of Article XI, Section 3(2) of Article XIV, and Section 26 of Article XVIII of the 1987 Constitution;
(b) R.A. No. 289;
(c) R.A. No. 10368;
(d) AFP Regulation G 161-375 dated September 11, 2000;
(e) The International Covenant on Civil and Political Rights;
(f) The "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law" of the United Nations (U.N.) General Assembly; and
(g) The "Updated Set of Principles for Protection and Promotion of Human Rights through Action to Combat Impunity" of the U.N. Economic and Social Council;
3. Whether historical facts, laws enacted to recover ill-gotten wealth from the Marcoses and their cronies, and the pronouncements of the Court on the Marcos regime have nullified his entitlement as a soldier and former President to interment at the LNMB.
4. Whether the Marcos family is deemed to have waived the burial of the remains of former President Marcos at the LNMB after they entered into an agreement with the Government of the Republic of the Philippines as to the conditions and procedures by which his remains shall be brought back to and interred in the Philippines.
The petitions must be dismissed.
Justiciable controversy
It is well settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless the following requisites for judicial inquiry are present: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.[19] In this case, the absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous.[20]
An "actual case or controversy" is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.[21] There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.[22] Related to the requisite of an actual case or controversy is the requisite of "ripeness," which means that something had then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action.[23] Moreover, the limitation on the power of judicial review to actual cases and controversies carries the assurance that the courts will not intrude into areas committed to the other branches of government.[24] Those areas pertain to questions which, under the Constitution, 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 of the government.[25] As they are concerned with questions of policy and issues dependent upon the wisdom, not legality of a particular measure,[26] political questions used to be beyond the ambit of judicial review. However, the scope of the political question doctrine has been limited by Section 1 of Article VIII of the 1987 Constitution when it vested in the judiciary the power to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The Court agrees with the OSG that President Duterte's decision to have the remains of Marcos interred at the LNMB involves a political question that is not a justiciable controversy. In the exercise of his powers under the Constitution and the Executive Order (E.O.) No. 292 (otherwise known as the Administrative Code of 1987) to allow the interment of Marcos at the LNMB, which is a land of the public domain devoted for national military cemetery and military shrine purposes, President Duterte decided a question of policy based on his wisdom that it shall promote national healing and forgiveness. There being no taint of grave abuse in the exercise of such discretion, as discussed below, President Duterte's decision on that political question is outside the ambit of judicial review.
Locus standi
Defined as a right of appearance in a court of justice on a given question,[27] locus standi requires that a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[28] Unless a person has sustained or is in imminent danger of sustaining an injury as a result of an act complained of, such proper party has no standing.[29] Petitioners, who filed their respective petitions for certiorari, prohibition and mandamus, in their capacities as citizens, human rights violations victims, legislators, members of the Bar and taxpayers, have no legal standing to file such petitions because they failed to show that they have suffered or will suffer direct and personal injury as a result of the interment of Marcos at the LNMB.
Taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law.[30] In this case, what is essentially being assailed is the wisdom behind the decision of the President to proceed with the interment of Marcos at the LNMB. As taxpayers, petitioners merely claim illegal disbursement of public funds, without showing that Marcos is disqualified to be interred at the LNMB by either express or implied provision of the Constitution, the laws or jurisprudence.
Petitioners Saguisag, et al.,[31] as members of the Bar, are required to allege any direct or potential injury which the Integrated Bar of the Philippines, as an institution, or its members may suffer as a consequence of the act complained of.[32] Suffice it to state that the averments in their petition-in-intervention failed to disclose such injury, and that their interest in this case is too general and shared by other groups, such that their duty to uphold the rule of law, without more, is inadequate to clothe them with requisite legal standing.[33]
As concerned citizens, petitioners are also required to substantiate that the issues raised are of transcendental importance, of overreaching significance to society, or of paramount public interest.[34] In cases involving such issues, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence.[35] In Marcos v. Manglapus,[36] the majority opinion observed that the subject controversy was of grave national importance, and that the Court's decision would have a profound effect on the political, economic, and other aspects of national life. The ponencia explained that the case was in a class by itself, unique and could not create precedent because it involved 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 (from 1986), sought to return to the Philippines to die.
At this point in time, the interment of Marcos at a cemetery originally established as a national military cemetery and declared a national shrine would have no profound effect on the political, economic, and other aspects of our national life considering that more than twenty-seven (27) years since his death and thirty (30) years after his ouster have already passed. Significantly, petitioners failed to demonstrate a clear and imminent threat to their fundamental constitutional rights.
As human rights violations victims during the Martial Law regime, some of petitioners decry re-traumatization, historical revisionism, and disregard of their state recognition as heroes. Petitioners' argument is founded on the wrong premise that the LNMB is the National Pantheon intended by law to perpetuate the memory of all Presidents, national heroes and patriots. The history of the LNMB, as will be discussed further, reveals its nature and purpose as a national military cemetery and national shrine, under the administration of the AFP.
Apart from being concerned citizens and taxpayers, petitioners Senator De Lima, and Congressman Lagman, et al.[37] come before the Court as legislators suing to defend the Constitution and to protect appropriated public funds from being used unlawfully. In the absence of a clear showing of any direct injury to their person or the institution to which they belong, their standing as members of the Congress cannot be upheld.[38] They do not specifically claim that the official actions complained of, i.e., the memorandum of the Secretary of National Defense and the directive of the AFP Chief of Staff regarding the interment of Marcos at the LNMB, encroach on their prerogatives as legislators.[39]
Exhaustion of Administrative Remedies
Petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts. Under the doctrine of exhaustion of administrative remedies, before a party is allowed to seek the intervention of the court, one should have availed first of all the means of administrative processes available.[40] If resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought.[41] For reasons of comity and convenience, courts of justice shy away from a dispute until the system of administrative redress has been completed and complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case.[42] While there are exceptions[43] to the doctrine of exhaustion of administrative remedies, petitioners failed to prove the presence of any of those exceptions.
Contrary to their claim of lack of plain, speedy, adequate remedy in the ordinary course of law, petitioners should be faulted for failing to seek reconsideration of the assailed memorandum and directive before the Secretary of National Defense. The Secretary of National Defense should be given opportunity to correct himself, if warranted, considering that AFP Regulations G 161-375 was issued upon his order. Questions on the implementation and interpretation thereof demand the exercise of sound administrative discretion, requiring the special knowledge, experience and services of his office to determine technical and intricate matters of fact. If petitioners would still be dissatisfied with the decision of the Secretary, they could elevate the matter before the Office of the President which has control and supervision over the Department of National Defense (DND).[44]
Hierarchy of Courts
In the same vein, while direct resort to the Court through petitions for the extraordinary writs of certiorari, prohibition and mandamus are allowed under exceptional cases,[45] which are lacking in this case, petitioners cannot simply brush aside the doctrine of hierarchy of courts that requires such petitions to be filed first with the proper Regional Trial Court (RTC). The RTC is not just a trier of facts, but can also resolve questions of law in the exercise of its original and concurrent jurisdiction over petitions for certiorari, prohibition and mandamus, and has the power to issue restraining order and injunction when proven necessary.
In fine, the petitions at bar should be dismissed on procedural grounds alone. Even if We decide the case based on the merits, the petitions should still be denied.
There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias.[46] None is present in this case.
The President's decision to bury Marcos at the LNMB is in accordance with the Constitution, the law or jurisprudence
Petitioners argue that the burial of Marcos at the LNMB should not be allowed because it has the effect of not just rewriting history as to the Filipino people's act of revolting against an authoritarian ruler but also condoning the abuses committed during the Martial Law, thereby violating the letter and spirit of the 1987 Constitution, which is a "post-dictatorship charter" and a "human rights constitution." For them, the ratification of the Constitution serves as a clear condemnation of Marcos' alleged "heroism." To support their case, petitioners invoke Sections 2,[47] 11,[48] 13,[49] 23,[50] 26,[51] 27[52] and 28[53] of Article II, Sec. 17 of Art. VII,[54] Sec. 3(2) of Art. XIV,[55] Sec. 1 of Art. XI,[56] and Sec. 26 of Art. XVIII[57] of the Constitution.
There is no merit to the contention.
As the Office of the Solicitor General (OSG) logically reasoned out, while the Constitution is a product of our collective history as a people, its entirety should not be interpreted as providing guiding principles to just about anything remotely related to the Martial Law period such as the proposed Marcos burial at the LNMB.
Tañada v. Angara[58] already ruled that the provisions in Article II of the Constitution are not self-executing. Thus:
By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart of this article in the 1935 Constitution is called the "basic political creed of the nation" by Dean Vicente Sinco. These principles in Article II are not intended to be self executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in Article II x x x are not "self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation."In the same vein, Sec. 1 of Art. XI of the Constitution is not a self-executing provision considering that a law should be passed by the Congress to clearly define and effectuate the principle embodied therein. As a matter of fact, pursuant thereto, Congress enacted R.A. No. 6713 ("Code of Conduct and Ethical Standards for Public Officials and Employees"), R.A. No. 6770 ("The Ombudsman Act of 1989"), R.A. No. 7080 (An Act Defining and Penalizing the Crime of Plunder), and Republic Act No. 9485 ("Anti-Red Tape Act of 2007"). To complement these statutes, the Executive Branch has issued various orders, memoranda, and instructions relative to the norms of behavior/code of conduct/ethical standards of officials and employees; workflow charts/public transactions; rules and policies on gifts and benefits; whistle blowing and reporting; and client feedback program.
In the same light, we held in Basco vs. Pagcor that broad constitutional principles need legislative enactments to implement them x x x.
x x x
The reasons for denying a cause of action to an alleged infringement of broad constitutional principles are sourced from basic considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and economic policy making."[59]
Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the Constitution is also misplaced. Sec. 3(2) of Art. XIV refers to the constitutional duty of educational institutions in teaching the values of patriotism and nationalism and respect for human rights, while Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze orders in relation to the recovery of Marcos' ill-gotten wealth. Clearly, with respect to these provisions, there is no direct or indirect prohibition to Marcos' interment at the LNMB.
The second sentence of Sec. 17 of Art. VII pertaining to the duty of the President to "ensure that the laws be faithfully executed," which is identical to Sec. 1, Title I, Book III of the Administrative Code of 1987,[60] is likewise not violated by public respondents. Being the Chief Executive, the President represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his or her department.[61] Under the Faithful Execution Clause, the President has the power to take "necessary and proper steps" to carry into execution the law.[62] The mandate is self-executory by virtue of its being inherently executive in nature and is intimately related to the other executive functions.[63] It is best construed as an imposed obligation, not a separate grant of power.[64] The provision simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws but is obliged to obey and execute them.[65]
Consistent with President Duterte's mandate under Sec. 17, Art. VII of the Constitution, the burial of Marcos at the LNMB does not contravene R.A. No. 289, R.A. No. 10368, and the international human rights laws cited by petitioners.
A. On R.A. No. 289[66]
For the perpetuation of their memory and for the inspiration and emulation of this generation and of generations still unborn, R.A. No. 289 authorized the construction of a National Pantheon as the burial place of the mortal remains of all the Presidents of the Philippines, national heroes and patriots.[67] It also provided for the creation of a Board on National Pantheon to implement the law.[68]
On May 12, 1953, President Elpidio R. Quirino approved the site of the National Pantheon at East Avenue, Quezon City.[69] On December 23, 1953, he issued Proclamation No. 431 to formally "withdraw from sale or settlement and reserve as a site for the construction of the National Pantheon a certain parcel of land located in Quezon City." However, on July 5, 1954, President Magsaysay issued Proclamation No. 42 revoking Proclamation Nos. 422 and 431, both series of 1953, and reserving the parcels of land embraced therein for national park purposes to be known as Quezon Memorial Park.
It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard by which a person's mortal remains may be interred at the LNMB, and that AFP Regulations G 161-375 merely implements the law and should not violate its spirit and intent. Petitioners claim that it is known, both here and abroad, that Marcos' acts and deed - the gross human rights violations, the massive corruption and plunder of government coffers, and his military record that is fraught with myths, factual inconsistencies, and lies - are neither worthy of perpetuation in our memory nor serve as a source of inspiration and emulation of the present and future generations. They maintain that public respondents are not members of the Board on National Pantheon, which is authorized by the law to cause the burial at the LNMB of the deceased Presidents of the Philippines, national heroes, and patriots.
Petitioners are mistaken. Both in their pleadings and during the oral arguments, they miserably failed to provide legal and historical bases as to their supposition that the LNMB and the National Pantheon are one and the same. This is not at all unexpected because the LNMB is distinct and separate from the burial place envisioned in R.A. No 289. The parcel of land subject matter of President Quirino's Proclamation No. 431, which was later on revoked by President Magsaysay's Proclamation No. 42, is different from that covered by Marcos' Proclamation No. 208. The National Pantheon does not exist at present. To date, the Congress has deemed it wise not to appropriate any funds for its construction or the creation of the Board on National Pantheon. This is indicative of the legislative will not to pursue, at the moment, the establishment of a singular interment place for the mortal remains of all Presidents of the Philippines, national heroes, and patriots. Perhaps, the Manila North Cemetery, the Manila South Cemetery, and other equally distinguished private cemeteries already serve the noble purpose but without cost to the limited funds of the government.
Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners' allegations must fail. To apply the standard that the LNMB is reserved only for the "decent and the brave" or "hero" would be violative of public policy as it will put into question the validity of the burial of each and every mortal remains resting therein, and infringe upon the principle of separation of powers since the allocation of plots at the LNMB is based on the grant of authority to the President under existing laws and regulations. Also, the Court shares the view of the OSG that the proposed interment is not equivalent to the consecration of Marcos' mortal remains. The act in itself does not confer upon him the status of a "hero." Despite its name, which is actually a misnomer, the purpose of the LNMB, both from legal and historical perspectives, has neither been to confer to the people buried there the title of "hero" nor to require that only those interred therein should be treated as a "hero." Lastly, petitioners' repeated reference to a "hero's burial" and "state honors," without showing proof as to what kind of burial or honors that will be accorded to the remains of Marcos, is speculative until the specifics of the interment have been finalized by public respondents.
B. On R.A. No. 10368[70]
For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by implicitly disqualifying Marcos' burial at the LNMB because the legislature, which is a co-equal branch of the government, has statutorily declared his tyranny as a deposed dictator and has recognized the heroism and sacrifices of the Human Rights Violations Victims (HRVVs)[71] under his regime. They insist that the intended act of public respondents damages and makes mockery of the mandatory teaching of Martial Law atrocities and of the lives and sacrifices of its victims. They contend that "reparation" under R.A. No. 10368 is non-judicial in nature but a political action of the State through the Legislative and Executive branches by providing administrative relief for the compensation, recognition, and memorialization of human rights victims.
We beg to disagree.
Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance, and other gross human rights violations committed from September 21, 1972 to February 25, 1986. To restore their honor and dignity, the State acknowledges its moral and legal obligation[72] to provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they experienced.
In restoring the rights and upholding the dignity of HRVVs, which is part of the right to an effective remedy, R.A. No. 10368 entitles them to monetary and non-monetary reparation. Any HRVV qualified under the law[73] shall receive a monetary reparation, which is tax-free and without prejudice to the receipt of any other sum from any other person or entity in any case involving human rights violations.[74] Anent the non-monetary reparation, the Department of Health (DOH), the Department of Social Welfare and Development (DSWD), the Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), and such other government agencies are required to render the necessary services for the HRVVs and/or their families, as may be determined by the Human Rights Victims' Claims Board (Board) pursuant to the provisions of the law.[75]
Additionally, R.A. No. 10368 requires the recognition of the violations committed against the HRVVs, regardless of whether they opt to seek reparation or not. This is manifested by enshrining their names in the Roll of Human Rights Violations Victims (Roll) prepared by the Board.[76] The Roll may be displayed in government agencies designated by the HRVV Memorial Commission (Commission).[77] Also, a Memorial/Museum/Library shall be established and a compendium of their sacrifices shall be prepared and may be readily viewed and accessed in the internet.[78] The Commission is created primarily for the establishment, restoration, preservation and conservation of the Memorial/Museum/ Library/Compendium.[79]
To memorialize[80] the HRVVs, the Implementing Rules and Regulations of R.A. No. 10368 further mandates that: (1) the database prepared by the Board derived from the processing of claims shall be turned over to the Commission for archival purposes, and made accessible for the promotion of human rights to all government agencies and instrumentalities in order to prevent recurrence of similar abuses, encourage continuing reforms and contribute to ending impunity;[81] (2) the lessons learned from Martial Law atrocities and the lives and sacrifices of HRVVs shall be included in the basic and higher education curricula, as well as in continuing adult learning, prioritizing those most prone to commit human rights violations;[82] and (3) the Commission shall publish only those stories of HRVVs who have given prior informed consent.[83]
This Court cannot subscribe to petitioners' logic that the beneficial provisions of R.A. No. 10368 are not exclusive as it includes the prohibition on Marcos' burial at the LNMB. It would be undue to extend the law beyond what it actually contemplates. With its victim-oriented perspective, our legislators could have easily inserted a provision specifically proscribing Marcos' interment at the LNMB as a "reparation" for the HRVVs, but they did not. As it is, the law is silent and should remain to be so. This Court cannot read into the law what is simply not there. It is irregular, if not unconstitutional, for Us to presume the legislative will by supplying material details into the law. That would be tantamount to judicial legislation.
Considering the foregoing, the enforcement of the HRVVs' rights under R.A. No 10368 will surely not be impaired by the interment of Marcos at the LNMB. As opined by the OSG, the assailed act has no causal connection and legal relation to the law. The subject memorandum and directive of public respondents do not and cannot interfere with the statutory powers and functions of the Board and the Commission. More importantly, the HRVVs' entitlements to the benefits provided for by R.A. No 10368 and other domestic laws are not curtailed. It must be emphasized that R.A. No. 10368 does not amend or repeal, whether express or implied, the provisions of the Administrative Code or AFP Regulations G 161-375:
It is a well-settled rule of statutory construction that repeals by implication are not favored. In order to effect a repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be made to reconcile and stand together. The clearest case possible must be made before the inference of implied repeal may be drawn, for inconsistency is never presumed. There must be a showing of repugnance clear and convincing in character. The language used in the later statute must be such as to render it irreconcilable with what had been formerly enacted. An inconsistency that falls short of that standard does not suffice. x x x[84]C. On International Human Rights Laws
Petitioners argue that the burial of Marcos at the LNMB will violate the rights of the HRVVs to "full" and "effective" reparation, which is provided under the International Covenant on Civil and Political Rights (ICCPR),[85] the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law[86] adopted by the U.N. General Assembly on December 16, 2005, and the Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity[87] dated February 8, 2005 by the U.N. Economic and Social Council.
We do not think so. The ICCPR,[88] as well as the U.N. principles on reparation and to combat impunity, call for the enactment of legislative measures, establishment of national programmes, and provision for administrative and judicial recourse, in accordance with the country's constitutional processes, that are necessary to give effect to human rights embodied in treaties, covenants and other international laws. The U.N. principles on reparation expressly states:
Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms[.][Emphasis supplied]The Philippines is more than compliant with its international obligations. When the Filipinos regained their democratic institutions after the successful People Power Revolution that culminated on February 25, 1986, the three branches of the government have done their fair share to respect, protect and fulfill the country's human rights obligations, to wit:
The 1987 Constitution contains provisions that promote and protect human rights and social justice.
As to judicial remedies, aside from the writs of habeas corpus, amparo,[89] and habeas data,[90] the Supreme Court promulgated on March 1, 2007 Administrative Order No. 25-2007,[91] which provides rules on cases involving extra-judicial killings of political ideologists and members of the media. The provision of the Basic Principles and Guidelines on the prevention of the victim's re-traumatization applies in the course of legal and administrative procedures designed to provide justice and reparation.[92]
On the part of the Executive Branch, it issued a number of administrative and executive orders. Notable of which are the following:
- A.O. No. 370 dated December 10, 1997 (Creating the Inter-Agency Coordinating Committee on Human Rights)
- E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a National Committee on the Culture of Peace)
- E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and Every 12th Day of August Thereafter as International Humanitarian Law Day)
- E.O. No. 404 dated January 24, 2005 (Creating the Government of the Republic of the Philippines Monitoring Committee [GRPMC] on Human Rights and International Humanitarian Law)
- A.O. No. 157 dated August 21, 2006 (Creating an Independent Commission to Address Media and Activist Killings)
- A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing the Membership of the Presidential Human Rights Committee, and Expanding Further the Functions of Said Committee)[93]
- A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and Coordination Between the National Prosecution Service and Other Concerned Agencies of Government for the Successful Investigation and Prosecution of Political and Media Killings)
- A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination with PHRC Sub-committee on Killings and Disappearances)
- A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against Political Violence)
- A.O. No. 249 dated December 10, 2008 (Further Strengthening Government Policies, Plans, and Programs for the Effective Promotion and Protection of Human Rights on the Occasion of the 60th Anniversary of the Universal Declaration of Human Rights)
- E.O. No. 847 dated November 23, 2009 (Creating the Church-Police-Military-Liaison Committee to Formulate and Implement a Comprehensive Program to Establish Strong Partnership Between the State and the Church on Matters Concerning Peace and Order and Human Rights)
- A.O. No. 35 dated November 22, 2012 (Creating the Inter-Agency Committee on Extra-Legal Killings, Enforced Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons)
- A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task Force on Violations of the Right to Life, Liberty and Security of the Members of the Media)
- Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodia/Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing Penalties for Violations Thereof)
- Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997)
- Republic Act No. 9201 (National Human Rights Consciousness Week Act of 2002)
- Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)
- Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004)
- Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)
- Republic Act No. 9372 (Human Security Act of 2007)
- Republic Act No. 9710 (The Magna Carta of Women)
- Republic Act No. 9745 (Anti-Torture Act of 2009)
- Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity)
- Republic Act No. 10121 (Philippine Disaster Risk Reduction and Management Act of 2010)
- Republic Act No. 10168 (The Terrorism Financing Prevention and Suppression Act of 2012)
- Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act of 2012)
- Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of 2012)
- Republic Act No. 10368 (Human Rights Victims Reparation And Recognition Act of 2013)
- Republic Act No. 10530 (The Red Cross and Other Emblems Act of 2013)
Notably, complementing the statutory powers and functions of the Human Rights Victims' Claims Board and the HRVV Memorial Commission in the memorialization of HRVVs, the National Historical Commission of the Philippines (NHCP), formerly known as the National Historical Institute (NHI),[94] is mandated to act as the primary government agency responsible for history and is authorized to determine all factual matters relating to official Philippine history.[95] Among others, it is tasked to: (a) conduct and support all kinds of research relating to Philippine national and local history; (b) develop educational materials in various media, implement historical educational activities for the popularization of Philippine history, and disseminate, information regarding Philippine historical events, dates, places and personages; and (c) actively engage in the settlement or resolution of controversies or issues relative to historical personages, places, dates and events.[96] Under R.A. Nos. 10066 (National Cultural Heritage Act of 2009)[97] and 10086 (Strengthening Peoples' Nationalism Through Philippine History Act),[98] the declared State policy is to conserve, develop, promote, and popularize the nation's historical and cultural heritage and resources.[99] Towards this end, means shall be provided to strengthen people's nationalism, love of country, respect for its heroes and pride for the people's accomplishments by reinforcing the importance of Philippine national and local history in daily life with the end in view of raising social consciousness.[100] Utmost priority shall be given not only with the research on history but also its popularization.[101]
The President's decision to bury Marcos at the LNMB is not done whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias
Petitioners contend that the interment of Marcos at the LNMB will desecrate it as a sacred and hallowed place and a revered national shrine where the mortal remains of our country's great men and women are interred for the inspiration and emulation of the present generation and generations to come. They erred.
A. National Shrines
As one of the cultural properties of the Philippines, national historical shrines (or historical shrines) refer to sites or structures hallowed and revered for their history or association as declared by the NHCP.[102] The national shrines created by law and presidential issuance include, among others: Fort Santiago (Dambana ng Kalayaan) in Manila;[103] all battlefield areas in Corregidor and Bataan;[104] the site of First Mass in the Philippines in Magallanes, Limasawa, Leyte;[105] Aguinaldo Shrine or Freedom Shrine in Kawit, Cavite;[106] Fort San Antonio Abad National Shrine in Malate, Manila;[107] Tirad Pass National Shrine in Ilocos Sur;[108] Ricarte Shrine[109] and Aglipay Shrine[110] in Batac, Ilocos Norte; Liberty Shrine in Lapu-Lapu, Cebu;[111] "Red Beach" or the landing point of General Douglas MacArthur and the liberating forces in Baras, Palo, Leyte;[112] Dapitan City as a National Shrine City in Zamboanga Del Norte;[113] General Leandro Locsin Fullon National Shrine in Hamtic, Antique;[114] and Mabini Shrine in Polytechnic University of the Philippines - Mabini Campus, Sta. Mesa, Manila.[115] As sites of the birth, exile, imprisonment, detention or death of great and eminent leaders of the nation, it is the policy of the Government to hold and keep the national shrines as sacred and hallowed place.[116] P.O. No. 105[117] strictly prohibits and punishes by imprisonment and/or fine the desecration of national shrines by disturbing their peace and serenity through digging, excavating, defacing, causing unnecessary noise, and committing unbecoming acts within their premises. R.A. No. 10066 also makes it punishable to intentionally modify, alter, or destroy the original features of, or undertake construction or real estate development in any national shrine, monument, landmark and other historic edifices and structures, declared, classified, and marked by the NHCP as such, without the prior written permission from the National Commission for Culture and the Arts (NCAA).[118]
As one of the cultural agencies attached to the NCAA,[119] the NHCP manages, maintains and administers national shrines, monuments, historical sites, edifices and landmarks of significant historico-cultural value.[120] In particular, the NHCP Board has the power to approve the declaration of historic structures and sites, such as national shrines, monuments, landmarks and heritage houses and to determine the manner of their identification, maintenance, restoration, conservation, preservation and protection.[121]
Excluded, however, from the jurisdiction of the NHCP are the military memorials and battle monuments declared as national shrines, which have been under the administration, maintenance and development of the Philippine Veterans Affairs Office (PVAO) of the DND. Among the military shrines are: Mt. Samat National Shrine in Pilar, Bataan;[122] Kiangan War Memorial Shrine in Linda, Kiangan, Ifugao;[123] Capas National Shrine in Capas, Tarlac;[124] Ricarte National Shrine in Malasin, Batac, Ilocos Norte;[125] Balantang Memorial Cemetery National Shrine in Jaro, Iloilo;[126] Balete Pass National Shrine in Sta. Fe, Nueva Vizcaya;[127] USAFIP, NL Military Shrine and Park in Bessang Pass, Cervantes, Ilocos Sur;[128] and the LNMB in Taguig City, Metro Manila.[129]
B. The Libingan Ng Mga Bayani
At the end of World War II, the entire nation was left mourning for the death of thousands of Filipinos. Several places served as grounds for the war dead, such as the Republic Memorial Cemetery, the Bataan Memorial Cemetery, and other places throughout the country. The Republic Memorial Cemetery, in particular, was established in May 1947 as a fitting tribute and final resting place of Filipino military personnel who died in World War II.
On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O. No. 77, which ordered "the remains of the war dead interred at the Bataan Memorial Cemetery, Bataan Province, and at other places in the Philippines, be transferred to, and reinterred at, the Republic Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to minimize the expenses for the maintenance and upkeep, and to make the remains accessible to the widows, parents, children, relatives, and friends.
On October 27, 1954, President Magsaysay issued Proclamation No. 86, which changed the name of Republic Memorial Cemetery to Libingan Ng Mga Bayani to symbolize "the cause for which our soldiers have died" and to "truly express the nations esteem and reverence for her war dead."[130]
On July 12, 1957, President Carlos P. Garcia issued Proclamation No. 423, which reserved for military purposes, under the administration of the AFP Chief of Staff, the land where LNMB is located. The LNMB was part of a military reservation site then known as Fort Wm McKinley (now known as Fort Andres Bonifacio).
On May 28, 1967, Marcos issued Proclamation No. 208, which excluded the LNMB from the Fort Bonifacio military reservation and reserved the LNMB for national shrine purposes under the administration of the National Shrines Commission (NSC) under the DND.
On September 24, 1972, Marcos, in the exercise of his powers as the AFP Commander-in-Chief, and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, as amended, issued Presidential Decree (P.D.) No. 1 which reorganized the Executive Branch of the National Government through the adoption of the Integrated Reorganization Plan (IRP). Section 7, Article XV, Chapter I, Part XII thereof abolished the NSC and its functions together with applicable appropriations, records, equipment, property and such personnel as may be necessary were transferred to the NHI under the Department of Education (DEC). The NHI was responsible for promoting and preserving the Philippine cultural heritage by undertaking, inter alia, studies on Philippine history and national heroes and maintaining national shrines and monuments.[131]
Pending the organization of the DEC, the functions relative to the administration, maintenance and development of national shrines tentatively integrated into the PVAO in July 1973.
On January 26, 1977, President Marcos issued P.D. No. 1076. Section 7, Article XV, Chapter I, Part XII of the IRP was repealed on the grounds that "the administration, maintenance and development of national shrines consisting of military memorials or battle monuments can be more effectively accomplished if they are removed from the [DEC] and transferred to the [DND] by reason of the latter s greater capabilities and resources" and that "the functions of the [DND] are more closely related and relevant to the charter or significance of said national shrines." Henceforth, the PVAO through the Military Shrines Service (MSS), which was created to perform the functions of the abolished NSC - would administer, maintain and develop military memorials and battle monuments proclaimed as national shrines.
On July 25, 1987, President Corazon C. Aquino issued the Administrative Code. The Code retains PVAO under the supervision and control of the Secretary of National Defense.[132] Among others, PVAO shall administer, develop and maintain military shrines.[133] With the approval of PVAO Rationalization Plan on June 29, 2010, pursuant to E.O. No. 366 dated October 4, 2004, MSS was renamed to Veterans Memorial and Historical Division, under the supervision and control of PVAO, which is presently tasked with the management and development of military shrines and the perpetuation of the heroic deeds of our nation's veterans.
As a national military shrine, the main features, structures, and facilities of the LNMB are as follows:
- Tomb of the Unknown Soldiers - The main structure constructed at the center of the cemetery where wreath laying ceremonies are held when Philippine government officials and foreign dignitaries visit the LNMB. The following inscription is found on the tomb: "Here lies a Filipino soldier whose name is known only to God." Behind the tomb are three marble pillars representing the three main island groups of the Philippines - Luzon, Visayas and Mindanao. Buried here were the remains of 39,000 Filipino soldiers who were originally buried in Camp O'Donnell Concentration Camp and Fort Santiago, Intramuros, Manila.
- Heroes Memorial Gate - A structure shaped in the form of a large concrete tripod with a stairway leading to an upper view deck and a metal sculpture at the center. This is the first imposing structure one sees upon entering the grounds of the cemetery complex.
- Black Stone Walls - Erected on opposite sides of the main entrance road leading to the Tomb of the Unknown Soldiers and just near the Heroes Memorial are two 12-foot high black stone walls which bear the words, "I do not know the dignity of his birth, but I do know the glory of his death." that General Douglas MacArthur made during his sentimental journey to the Philippines in 1961.
- Defenders of Bataan and Corregidor Memorial Pylon - Inaugurated on April 5, 1977 by Secretary Renato S. De Villa in memory of the defenders of Bataan and Corregidor during World War II. This monument is dedicated as an eternal acknowledgment of their valor and sacrifice in defense of the Philippines.
- Korean Memorial Pylon - A towering monument honoring the 112 Filipino officers and men who, as members of the Philippine Expeditionary Forces to Korea (PEFTOK), perished during the Korean War.
- Vietnam Veterans Memorial Pylon - Dedicated to the members of the Philippine contingents and Philippine civic action groups to Vietnam (PHILCON-V and PHILCAG-V) who served as medical, dental, engineering construction, community and psychological workers, and security complement. They offered tremendous sacrifices as they alleviated human suffering in war-ravaged Vietnam from 1964-1971. Inscribed on the memorial pylon are the words: "To build and not to destroy, to bring the Vietnamese people happiness and not sorrow, to develop goodwill and not hatred."
- Philippine World War II Guerillas Pylon - Erected by the Veterans Federation of the Philippines as a testimony to the indomitable spirit and bravery of the Filipino guerillas of World War II who refused to be cowed into submission and carried on the fight for freedom against an enemy with vastly superior arms and under almost insurmountable odds. Their hardship and sufferings, as well as their defeats and victories, are enshrined in this memorial.[134]
(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.
(2) Following the canon of statutory construction known as ejusdem generis,[138] the LNMB is not a site "of the birth, exile, imprisonment, detention or death of great and eminent leaders of the nation." What P.D. No. 105 contemplates are the following national shrines: Fort Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor and Bataan, the site of First Mass in the Philippines, Aguinaldo Shrine or Freedom Shrine, Fort San Antonio Abad National Shrine, Tirad Pass National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty Shrine, "Red Beach" or the landing point of General Douglas MacArthur and the liberating forces, Dapitan City, General Leandro Locsin Fullon National Shrine, and Mabini Shrine. Excluded are the military memorials and battle monuments declared as national shrines under the PVAO, such as: Mt. Samat National Shrine, Kiangan War Memorial Shrine, Capas National Shrine, Ricarte National Shrine, Balantang Memorial Cemetery National Shrine, Balete Pass National Shrine; USAFIP, NL Military Shrine and Park, and the LNMB.
(3) Since its establishment, the LNMB has been a military shrine under the jurisdiction of the PVAO. While P.D. No. 1 dated September 24, 1972 transferred the administration, maintenance and development of national shrines to the NHI under the DEC, it never actually materialized. Pending the organization of the DEC, its functions relative to national shrines were tentatively integrated into the PVAO in July 1973. Eventually, on January 26, 1977, Marcos issued P.D. No. 1076. The PVAO, through the MSS, was tasked to administer, maintain, and develop military memorials and battle monuments proclaimed as national shrines. The reasons being that "the administration, maintenance and development of national shrines consisting of military memorials or battle monuments can be more effectively accomplished if they are removed from the [DEC] and transferred to the [DND] by reason of the latter's greater capabilities and resources" and that "the functions of the [DND] are more closely related and relevant to the charter or significance of said national shrines."
The foregoing interpretation is neither narrow and myopic nor downright error. Instead, it is consistent with the letter and intent of P.D. No. 105.
Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and hallowed" refer to the LNMB as a place and not to each and every mortal remains interred therein. Hence, the burial of Marcos at the LNMB does not diminish said cemetery as a revered and respected ground. Neither does it negate the presumed individual or collective "heroism" of the men and women buried or will be buried therein. The "nations esteem and reverence for her war dead," as originally contemplated by President Magsaysay in issuing Proclamation No. 86, still stands unaffected. That being said, the interment of Marcos, therefore, does not constitute a violation of the physical, historical, and cultural integrity of the LNMB as a national military shrine.
At this juncture, reference should be made to Arlington National Cemetery (Arlington), which is identical to the LNMB in terms of its prominence in the U.S. It is not amiss to point that our armed forces have been patterned after the U.S. and that its military code produced a salutary effect in the Philippines' military justice system.[139] Hence, relevant military rules, regulations, and practices of the U.S. have persuasive, if not the same, effect in this jurisdiction.
As one of the U.S. Army national military cemeteries,[140] the Arlington is under the jurisdiction of the Department of the Army.[141] The Secretary of the U.S. Army has the responsibility to develop, operate, manage, administer, oversee, and fund the Army national military cemeteries in a manner and to standards that fully honor the service and sacrifices of the deceased members of the armed forces buried or inurned therein, and shall prescribe such regulations and policies as may be necessary to administer the cemeteries.[142] In addition, the Secretary of the U.S. Army is empowered to appoint an advisory committee, which shall make periodic reports and recommendations as well as advise the Secretary with respect to the administration of the cemetery, the erection of memorials at the cemetery, and master planning for the cemetery.[143]
Similar to the Philippines, the U.S. national cemeteries are established as national shrines in tribute to the gallant dead who have served in the U.S. Armed Forces.[144] The areas are protected, managed and administered as suitable and dignified burial grounds and as significant cultural resources.[145] As such, the authorization of activities that take place therein is limited to those that are consistent with applicable legislation and that are compatible with maintaining their solemn commemorative and historic character.[146]
The LNMB is considered as a national shrine for military memorials. The PVAO, which is empowered to administer, develop, and maintain military shrines, is under the supervision and control of the DND. The DND, in turn, is under the Office of the President.
The presidential power of control over the Executive Branch of Government is a self-executing provision of the Constitution and does not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the legislature.[147] This is why President Duterte is not bound by the alleged 1992 Agreement[148] between former President Ramos and the Marcos family to have the remains of Marcos interred in Batac, Ilocos Norte. As the incumbent President, he is free to amend, revoke or rescind political agreements entered into by his predecessors, and to determine policies which he considers, based on informed judgment and presumed wisdom, will be most effective in carrying out his mandate.
Moreover, under the Administrative Code, the President has the power to reserve for public use and for specific public purposes any of the lands of the public domain and that the reserved land shall remain subject to the specific public purpose indicated until otherwise provided by law or proclamation.[149] At present, there is no law or executive issuance specifically excluding the land in which the LNMB is located from the use it was originally intended by the past Presidents. The allotment of a cemetery plot at the LNMB for Marcos as a former President and Commander-in-Chief,[150] a legislator,[151] a Secretary of National Defense,[152] a military personnel,[153] a veteran,[154] and a Medal of Valor awardee,[155] whether recognizing his contributions or simply his status as such, satisfies the public use requirement. The disbursement of public funds to cover the expenses incidental to the burial is granted to compensate him for valuable public services rendered.[156] Likewise, President Duterte's determination to have Marcos' remains interred at the LNMB was inspired by his desire for national healing and reconciliation. Presumption of regularity in the performance of official duty prevails over petitioners' highly disputed factual allegation that, in the guise of exercising a presidential prerogative, the Chief Executive is actually motivated by utang na loob (debt of gratitude) and bayad utang (payback) to the Marcoses. As the purpose is not self-evident, petitioners have the burden of proof to establish the factual basis of their claim. They failed. Even so, this Court cannot take cognizance of factual issues since We are not a trier of facts.
C. AFP Regulations on the LNMB
A review of the regulations issued by the AFP Chief of Staff as to who may and may not be interred at the LNMB underscores the nature and purpose of the LNMB as an active military cemetery/grave site.
On May 13, 1947, the Chief of Staff of the Philippine Army, by the direction of the President and by order of the Secretary of National Defense, issued General Orders No. 111, which constituted and activated, as of said date, the Graves Registration Platoon as a unit of the Philippine Army.
On February 2, 1960, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-371 (Administrative and Special Staff Services, Grave Registration Service), which provided that the following may be interred in the LNMB: (a) World War II dead of the AFP and recognized guerillas; (b) Current dead of the AFP; (c) Retired military personnel of the AFP; (d) Remains of former members of the AFP who died while in the active service and in the Retired List of the AFP now interred at different cemeteries and other places throughout the Philippines or the Secretary of National Defense; and (e) Others upon approval of the Congress of the Philippines, the President of the Philippines or the Secretary of National Defense. The regulation also stated that the AFP Quartermaster General will be responsible for, among other matters, the efficient operation of the Graves Registration Service; the interment, disinterment and reinterment of the dead mentioned above; and preservation of military cemeteries, national cemeteries, and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-372 (Administration and Operation of AFP Graves Registration Installations), which superseded AFP Regulations G 161-371. It provided that the following may be interred in the LNMB: (a) Deceased Veterans of the Philippine Revolution of 1896/World War I; (b) Deceased World War II members of the AFP and recognized guerillas; (c) Deceased military personnel of the AFP who died while in the active duty; (d) Deceased retired military personnel of the AFP; (e) Deceased military personnel of the AFP interred at different cemeteries and other places outside the LNMB; and (f) Such remains of persons as the Commander-in-Chief of the AFP may direct. The remains of the following were not allowed to be interred in the LNMB: (a) The spouse of an active, or retired, deceased military personnel, recognized guerillas who himself/herself is not a military personnel; and (b) AFP personnel who were retireable but separated/reverted/discharged for cause, or joined and aided the enemy of the Republic of the Philippines, or were convicted of capital or other criminal offenses, involving moral turpitude. The regulation also stated that the Quartermaster General shall be responsible for, among other matters, the efficient operation of the AFP graves registration installations; the interment, disinterment and reinterment of deceased military personnel mentioned above; and the preservation of military cemeteries, proper marking and official recording of graves therein.
On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of National Defense Minister, issued AFP Regulations G 161-373 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-372. It enumerated a list of deceased person who may be interred at the LNMB, namely: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c) Ministers of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of Philippine Revolution of 1896, WWI, WWII and recognized guerillas; and (h) Government Dignitaries, Statesmen, National Artist and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Batasang Pambansa or the Minister of National Defense. The regulation also stated that the Quartermaster General shall be responsible for the allocation of specific section/areas for the said deceased persons, while the Commanding Officer of the Quartermaster Graves Registration Company shall be charged with the preparation of grave sites, supervision of burials at LNMB and the registration of graves.
On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-374 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-373. It provided that the following may be interred in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-inChief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (h) Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of National Defense; and (i) Former Presidents, Secretaries of Defense, CSAFP, Generals/Flag Officers, Dignitaries, Statesmen, National Artists, widows of former Presidents, Secretaries of National Defense and Chief of Staff. The remains of the following were not allowed to be interred in the LNMB: (a) Personnel who were dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by final judgment of an offense involving moral turpitude. Like AFP Regulations G 161-373, it stated that the Quartermaster General shall be responsible for the allocation of specific section/areas for the deceased persons, whereas the Commanding Officer of the Quartermaster Graves Registration Unit shall be charged with the preparation of grave sites, supervision of burials, and the registration of graves.
Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the Secretary of National Defense, issued AFP Regulations G 161-375 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-374. The regulation stated that the Chief of Staff shall be responsible for the issuance of interment directive for all active military personnel for interment, authorized personnel (such as those former members of the AFP who laterally entered or joined the Philippine Coast Guard [PCG] and the Philippine National Police [PNP]), and retirees, veterans and reservists enumerated therein. The Quartermaster General is tasked to exercise over-all supervision in the implementation of the regulation and the Commander ASCOM, PA through the Commanding Officer of Grave Services Unit is charged with the registration of the deceased/graves, the allocation of specific section/area at the LNMB for interment of deceased, the preparation of grave sites, and the supervision of burials.
Under AFP Regulations G 161-375, the following are eligible for interment at the LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP to include active draftees and trainees who died in line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities; (g) Former members of the AFP who laterally entered or joined the PCG and the PNP; (h) Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (i) Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or the Secretary of National Defense; and G) Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff. Similar to AFP Regulations G 161-374, the following are not qualified to be interred in the LNMB: (a) Personnel who were dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by final judgment of an offense involving moral turpitude.
In the absence of any executive issuance or law to the contrary, the AFP Regulations G 161-375 remains to be the sole authority in determining who are entitled and disqualified to be interred at the LNMB. Interestingly, even if they were empowered to do so, former Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who were themselves aggrieved at the Martial Law, did not revise the rules by expressly prohibiting the burial of Marcos at the LNMB. The validity of AFP Regulations G 161-375 must, therefor, be sustained for having been issued by the AFP Chief of Staff acting under the direction of the Secretary of National Defense, who is the alter ego of the President.
x x x In Joson v. Torres, we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limit in this wise:It has been held that an administrative regulation adopted pursuant to law has the force and effect of law and, until set aside, is binding upon executive and administrative agencies, including the President as the chief executor of laws.[158]
Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Emphasis ours, citation omitted.)[157]
1. Qualification under the AFP Regulations
AFP Regulations G 161-375 should not be stricken down in the absence of clear and unmistakable showing that it has been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Neither could it be considered ultra vires for purportedly providing incomplete, whimsical, and capricious standards for qualification for burial at the LNMB.
To compare, We again refer to the U.S. Army regulations on Arlington. In the U.S., the Secretary of the Army, with the approval of the Secretary of Defense, determines eligibility for interment or inurnment in the Army national military cemeteries.[159] Effective October 26, 2016, the rule[160] is as follows:
Only those who qualify as a primarily eligible person or a derivatively eligible person are eligible for interment in Arlington National Cemetery, unless otherwise prohibited as provided for in §§ 553.19[161]-553.20,[162] provided that the last period of active duty of the service member or veteran ended with an honorable discharge.There is a separate list of eligible with respect to the inurnment of cremated remains in the Columbarium,[166] interment of cremated remains in the Unmarked Area,[167] and group burial.[168] As a national military cemetery, eligibility standards for interment, inurnment, or memorialization in Arlington are based on honorable military service.[169] Exceptions to the eligibility standards for new graves, which are rarely granted, are for those persons who have made significant contributions that directly and substantially benefited the U.S. military.[170]
(a) Primarily eligible persons. The following are primarily eligible persons for purposes of interment:
(1) Any service member who dies on active duty in the U.S. Armed Forces (except those service members serving on active duty for training only), if the General Courts Martial Convening Authority grants a certificate of honorable service.
(2) Any veteran retired from a Reserve component who served a period of active duty (other than for training), is carried on the official retired list, and is entitled to receive military retired pay.
(3) Any veteran retired from active military service and entitled to receive military retired pay.
(4) Any veteran who received an honorable discharge from the Armed Forces prior to October 1, 1949, who was discharged for a permanent physical disability, who served on active duty (other than for training), and who would have been eligible for retirement under the provisions of 10 U.S.C. 1201 had the statute been in effect on the date of separation.
(5) Any veteran awarded one of the following decorations:
(i) Medal of Honor;[163]
(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;
(iii) Distinguished Service Medal;
(iv) Silver Star; or
(v) Purple Heart.
(6) Any veteran who served on active duty (other than active duty for training) and who held any of the following positions:
(i) President or Vice President of the United States;
(ii) Elected member of the U.S. Congress;
(iii) Chief Justice of the Supreme Court of the United States or Associate Justice of the Supreme Court of the United States;
(iv) A position listed, at the time the person held the position, in 5 U.S.C. 5312[164] or 5313[165] (Levels I and II of the Executive Schedule); or
(v) Chief of Mission of a Category 4, 5, or post if the Department of State classified that post as a Category 4, 5, or 5+ post during the person's tenure as Chief of Mission.
(7) Any former prisoner of war who, while a prisoner of war, served honorably in the active military service, and who died on or after November 30, 1993.
(b) Derivatively eligible persons. The following individuals are derivatively eligible persons for purposes of interment who may be interred if space is available in the gravesite of the primarily eligible person:
(1) The spouse of a primarily eligible person who is or will be interred in Arlington National Cemetery. A former spouse of a primarily eligible person is not eligible for interment in Arlington National Cemetery under this paragraph.
(2) The spouse of an active duty service member or an eligible veteran, who was:
(i) Lost or buried at sea, temporarily interred overseas due to action by the Government, or officially determined to be missing in action;
(ii) Buried in a U.S. military cemetery maintained by the American Battle Monuments Commission; or
(iii) Interred in Arlington National Cemetery as part of a group burial (the derivatively eligible spouse may not be buried in the group burial gravesite).
(3) The parents of a minor child or a permanently dependent adult child, whose remains were interred in Arlington National Cemetery based on the eligibility of a parent at the time of the child's death, unless eligibility of the non-service connected parent is lost through divorce from the primarily eligible parent.
(4) An honorably discharged veteran who does not qualify as a primarily eligible person, if the veteran will be buried in the same gravesite as an already interred primarily eligible person who is a close relative, where the interment meets the following conditions:
(i) The veteran is without minor or unmarried adult dependent children;
(ii) The veteran will not occupy space reserved for the spouse, a minor child, or a permanently dependent adult child;
(iii) All other close relatives of the primarily eligible person concur with the interment of the veteran with the primarily eligible person by signing a notarized statement;
(iv) The veteran's spouse waives any entitlement to interment in Arlington National Cemetery, where such entitlement might be based on the veteran's interment in Arlington National Cemetery. The Executive Director may set aside the spouse's waiver, provided space is available in the same gravesite, and all close relatives of the primarily eligible person concur;
(v) Any cost of moving, recasketing, or revaulting the remains will be paid from private funds.
Judging from the foregoing, it is glaring that the U.S. Army regulations on Arlington and the AFP Regulations G 161-375 on the LNMB, as a general rule, recognize and reward the military services or military related activities of the deceased. Compared with the latter, however, the former is actually less generous in granting the privilege of interment since only the spouse or parent, under certain conditions, may be allowed "if space is available in the gravesite of the primarily eligible person."
It is not contrary to the "well-established custom," as the dissent described it, to argue that the word "bayani" in the LNMB has become a misnomer since while a symbolism of heroism may attach to the LNMB as a national shrine for military memorial, the same does not automatically attach to its feature as a military cemetery and to those who were already laid or will be laid therein. As stated, the purpose of the LNMB, both from the legal and historical perspectives, has neither been to confer to the people buried there the title of "hero" nor to require that only those interred therein should be treated as a "hero." In fact, the privilege of internment at the LNMB has been loosen up through the years. Since 1986, the list of eligible includes not only those who rendered active military service or military-related activities but also non-military personnel who were recognized for their significant contributions to the Philippine society (such as government dignitaries, statesmen, national artists, and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of National Defense). In 1998, the widows of former Presidents, Secretaries of National Defense and Chief of Staff were added to the list. Whether or not the extension of burial privilege to civilians is unwarranted and should be restricted in order to be consistent with the original purpose of the LNMB is immaterial and irrelevant to the issue at bar since it is indubitable that Marcos had rendered significant active military service and military-related activities.
Petitioners did not dispute that Marcos was a former President and Commander-in-Chief, a legislator, a Secretary of National Defense, a military personnel, a veteran, and a Medal of Valor awardee. For his alleged human rights abuses and corrupt practices, we may disregard Marcos as a President and Commander-in-Chief, but we cannot deny him the right to be acknowledged based on the other positions he held or the awards he received. In this sense, We agree with the proposition that Marcos should be viewed and judged in his totality as a person. While he was not all good, he was not pure evil either. Certainly, just a human who erred like us.
Our laws give high regard to Marcos as a Medal of Valor awardee and a veteran. R.A. No. 9049[171] declares the policy of the State "to consistently honor its military heroes in order to strengthen the patriotic spirit and nationalist consciousness of the military."[172] For the "supreme self-sacrifice and distinctive acts of heroism and gallantry,"[173] a Medal of Valor awardee or his/her dependents/heirs/beneficiaries are entitled to the following social services and financial rewards:
- Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos (P20,000.00), which is separate and distinct from any salary or pension that the awardee currently receives or will receive from the government of the Philippines;[174]
- Precedence in employment in government agencies or government-owned or controlled corporation, if the job qualifications or requirements are met;
- Priority in the approval of the awardee's housing application under existing housing programs of the government;
- Priority in the acquisition of public lands under the Public Land Act and preferential right in the lease of pasture lands and exploitation of natural resources;
- Privilege of obtaining loans in an aggregate amount not exceeding Five Hundred Thousand Pesos (P500,000.00) from governmentowned or controlled financial institutions without having to put up any collateral or constitute any pledge or mortgage to secure the payment of the loan;
- Twenty (20%) percent discount from all establishments relative to utilization of transportation services, hotels and similar lodging establishments, restaurants, recreation and sport centers and purchase of medicine anywhere in the country;
- Twenty (20%) percent discount on admission fees charged by theaters, cinema houses and concert halls, circuses, carnivals and other similar places of culture, leisure and amusement;
- Free medical and dental services and consultation in hospital and clinics anywhere in the country;
- Exemption from the payment of tuition and matriculation fees in public or private schools, universities, colleges and other educational institutions in any pre-school, baccalaureate or post graduate courses such as or including course leading to the degree of Doctor of Medicine (MD), Bachelor of Laws (LLB), and Bachelor of Science in Nursing (BSN) or allied and similar courses; and
- If interested and qualified, a quota is given to join the cadet corps of the Philippine Military Academy or otherwise priority for direct commission, call to active duty (CAD) and/or enlistment in regular force of the AFP.
2. Disqualification under the AFP Regulations
Aside from being eligible for burial at the LNMB, Marcos possessed none of the disqualifications stated in AFP Regulations G 161-375. He was neither convicted by final judgment of the offense involving moral turpitude nor dishonorably separated/reverted/discharged from active military service.
Petitioners, however, protest that a narrow interpretation of the AFP regulations disregards historical context and the rule on statutory construction. They urge the Court to construe statutes not literally but according to their spirit and reason.
It is argued that Marcos committed offenses involving moral turpitude for his gross human rights violations, massive graft and corruption, and dubious military records, as found by foreign and local courts as well as administrative agencies. By going into exile, he deliberately evaded liability for his actions. And by allowing death to overtake him, he inevitably escaped the prospect of facing accountability for his crimes. They also contend that his removal in the 1986 popular uprising is a clear sign of his discharge from the AFP. The People Power Revolution was the direct exercise of the Filipinos' power to overthrow an illegitimate and oppressive regime. As a sovereign act, it necessarily includes the power to adjudge him as dishonorably discharged from the AFP.
Furthermore, according to petitioners, to limit the application of the disqualifying provisions of AFP Regulations G 161-375 only to soldiers would be unfair (since, unlike Presidents, soldiers have an additional cause for disqualification) and lead to absurd results (because soldiers who were dishonorably discharged would be disqualified for acts that are less atrocious than that committed by Marcos). Also, the AFP regulations would place Marcos in the same class as the other Philippine Presidents when in fact he is a class of his own, sui generis. The other Presidents were never removed by People Power Revolution and were never subject of laws declaring them to have committed human rights violations. Thus, the intended burial would be an act of similarly treating persons who are differently situated.
Despite all these ostensibly persuasive arguments, the fact remains that Marcos was not convicted by final judgment of any offense involving moral turpitude. No less than the 1987 Constitution mandates that a person shall not be held to answer for a criminal offense without due process of law and that, "[i]n all criminal prosecutions, the accused shall be presum innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf."[179] Even the U.N. principles on reparation and to combat impunity cited by petitioners unequivocally guarantee the rights of the accused, providing that:
XIII. Rights of othersTo note, in the U.S., a person found to have committed a Federal or State capital crime (i.e., a crime which a sentence of imprisonment for life or death penalty may be imposed) but who has not been convicted by reason of not being available for trial due to death or flight to avoid prosecution, may be ineligible for interment, inurnment, or memorialization in an Army national military cemetery. Nevertheless, such ineligibility must still observe the procedures specified in § 553.21.[180]
27. Nothing in this document is to be construed as derogating from internationally or nationally protected rights of others, in particular the right of an accused person to benefit from applicable standards of due process.x x x PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED
Before a commission identifies perpetrators in its report, the individuals concerned shall be entitled to the following guarantees:
(a) The commission must try to corroborate information implicating individuals before they are named publicly;
(b) The individuals implicated shall be afforded an opportunity to provide a statement setting forth their version of the facts either at a hearing convened by the commission while conducting its investigation or through submission of a document equivalent to a right of reply for inclusion in the commission's file.
The various cases cited by petitiOners, which were decided with finality by courts here and abroad, have no bearing in this case since they are merely civil in nature; hence, cannot and do not establish moral turpitude.
Also, the equal protection clause is not violated. Generally, there is no property right to safeguard because even if one is eligible to be buried at the LNMB, such fact would only give him or her the privilege to be interred therein. Unless there is a favorable recommendation from the Commander-in-Chief, the Congress or the Secretary of National Defense, no right can be said to have ripen. Until then, such inchoate right is not legally demandable and enforceable.
Assuming that there is a property right to protect, the requisites of equal protection clause are not met.[181] In this case, there is a real and substantial distinction between a military personnel and a former President. The conditions of dishonorable discharge under the Articles of War[182] attach only to the members of the military. There is also no substantial distinction between Marcos and the three Philippine Presidents buried at the LNMB (Presidents Quirino, Garcia, and Macapagal). All of them were not convicted of a crime involving moral turpitude. In addition, the classification between a military personnel and a former President is germane to the purposes of Proclamation No. 208 and P.D. No. 1076. While the LNMB is a national shrine for military memorials, it is also an active military cemetery that recognizes the status or position held by the persons interred therein.
Likewise, Marcos was honorably discharged from military service. PVAO expressly recognized him as a retired veteran pursuant to R.A. No. 6948, as amended. Petitioners have not shown that he was dishonorably discharged from military service under AFP Circular 17, Series of 1987 (Administrative Discharge Prior to Expiration of Term of Enlistment) for violating Articles 94, 95 and 97 of the Articles of War.[183] The NHCP study[184] is incomplete with respect to his entire military career as it failed to cite and include the official records of the AFP.
With respect to the phrase "[p]ersonnel who were dishonorably separated/reverted/discharged from the service," the same should be viewed in light of the definition provided by AFP Regulations G 161-375 to the term "active service" which is "[s]ervice rendered by a military person as a Commissioned Officer, enlisted man/woman, probationary officer, trainee or draftee in the Armed Forces of the Philippines and service rendered by him/her as a civilian official or employee in the Philippine Government prior to the date of his/her separation or retirement from the Armed Forces of the Philippines, for which military and/or civilian service he/she shall have received pay from the Philippine Government, and/or such others as may be hereafter be prescribed by law as active service (PD 1638, as amended)."[185] To my mind, the word "service" should be construed as that rendered by a military person in the AFP, including civil service, from the time of his/her commission, enlistment, probation, training or drafting, up to the date of his/her separation or retirement from the AFP. Civil service after honorable separation and retirement from the AFP is outside the context of "service" under AFP Regulations G 161-375.
Hence, it cannot be conveniently claimed that Marcos' ouster from the presidency during the EDSA Revolution is tantamount to his dishonorable separation, reversion or discharge from the military service. The fact that the President is the Commander-in-Chief of the AFP under the 1987 Constitution only enshrines the principle of supremacy of civilian authority over the military. Not being a military person who may be prosecuted before the court martial, the President can hardly be deemed "dishonorably separated/reverted/discharged from the service" as contemplated by AFP Regulations G 161-375. Dishonorable discharge through a successful revolution is an extra-constitutional and direct sovereign act of the people which is beyond the ambit of judicial review, let alone a mere administrative regulation.
It is undeniable that former President Marcos was forced out of office by the people through the so-called EDSA Revolution. Said political act of the people should not be automatically given a particular legal meaning other than its obvious consequence- that of ousting him as president. To do otherwise would lead the Court to the treacherous and perilous path of having to make choices from multifarious inferences or theories arising from the various acts of the people. It is not the function of the Court, for instance, to divine the exact implications or significance of the number of votes obtained in elections, or the message from the number of participants in public assemblies. If the Court is not to fall into the pitfalls of getting embroiled in political and oftentimes emotional, if not acrimonious, debates, it must remain steadfast in abiding by its recognized guiding stars - clear constitutional and legal rules - not by the uncertain, ambiguous and confusing messages from the actions of the people.
In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse of discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose its authority to check and override an act entrusted to the judgment of another branch. Truly, the President's discretion is not totally unfettered. "Discretion is not a freespirited stallion that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic formulation, 'discretion is not unconfined and vagrant' but 'canalized within banks that keep it from overflowing.'"[186] At bar, President Duterte, through the public respondents, acted within the bounds of the law and jurisprudence. Notwithstanding the call of human rights advocates, the Court must uphold what is legal and just. And that is not to deny Marcos of his rightful place at the LNMB. For even the Framers of our Constitution intend that full respect for human rights is available at any stage of a person's development, from the time he or she becomes a person to the time he or she leaves this earth.[187]
There are certain things that are better left for history - not this Court - to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime, the country must mov'e on and let this issue rest.
WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. Necessarily, the Status Quo Ante Order is hereby LIFTED.
Sereno, C. J., See dissenting opinion.
Carpio, J., See dissenting opinion.
Velasco, Jr.,** J., I concur in the ponencia as also in the opinion of Justice Mendoza.
Leonardo-De Castro, J., I concur in the ponencia and separate opinion of Justice Mendoza.
Brion, J., with separate concurring opinion.
Bersamin, J., See separate opinion.
Del Castillo, J., I join the separate opinion.
Perez, J., See separate opinion.
Mendoza, J., See separate opinion.
Reyes, J., Inhibited/no part.
Perlas-Bernabe, J., I join the separate opinion of J. Mendoza.
Leonen, J., I dissent. See separate opinion.
Jardeleza, J., I join dissent of J. Caguioa.
Caguioa, J., I dissent. See separate opinion.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on November 8, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled cases, the original of which was received by this Office on November 10, 2016 at 5:15 p.m.
Very truly yours, | |
(SGD) | |
FELIPA G. BORLONGAN-ANAMA | |
Clerk of Court |
* Rene A.V. Saguisag, et al. filed a petition for certiorari-in-intervention.
** On official leave.
[1] See Annex "A" of Petition for Prohibition of Lagman, et al., G.R. No. 225984.
[2] See Annex "B,", id. (Emphasis in the original)
[3] G.R. No. 225973.
[4] TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES, MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EX-DETAINEES LABAN SA DETENSYON AT ARESTO (SELDA) represented by DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARlO, FELIX C. DALISAY and DANILO M. DELA FUENTE.
[5] G.R. No. 225973.
[6] RENE A. Q. SAGUISAG, JR.
[7] RENE A. C. SAGUISAG, III.
[8] G.R. No. 225984.
[9] FIND CO-CHAIRPERSON, NILDA L. SEVILLA, REP. TEDDY BRAWNER BAGUILAT, JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP. EMMANUEL A. BILLONES.
[10] G.R. No. 226097
[11] HILDA B. NARCISO, AIDA F. SANTOS-MARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR, MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUUE G. CRlSMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE ond ABDULMARI DE LEON IMAO, JR.
[12] G.R. No. 226116.
[13] JOEL C. LAMANGAN, FRANCIS X. MAGLAPUS, EDILBERTO C. DE JESUS, BELINDA O. CUNANAN, CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P. OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M. QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA, AUGUSTO A. LEGASTO, JR. and JULIA KRISTINA P. LEGASTO
[14] G.R. No. 226117.
[15] JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, and JUAN ANTONIO RAROGAL MAGALANG
[16] G.R. No. 226120.
[17] Defined as native peoples who have historically inhabited Mindanao, Palawan and Sulu, who are largely of the Islamic Faith, under Sec. 4, par. d.[8], RA 9710 othenvise known as The Magna Carta of Women.
[18] G.R. No. 226294.
[19] Belgica, et al., v. Han. Exec. Sec. Ochoa, Jr., 721 Phil. 416, 518-519 (2013).
[20] Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, 471 (2010).
[21] Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519, citing Province of North Cotabato, et al. v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), et al., 589 Phil. 387, 481 (2008).
[22] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), et al., supra.
[23] Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519-520.
[24] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Acestral Domain (GRP), et al., supra note 21.
[25] Tañada v. Cuenco, 100 Phil. 1101 (1957); Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 526.
[26] Id.; id.
[27] Black's Law Dictionary, 941 (1991 6th ed.).
[28] Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 527.
[29] Id. at 527, citing La Bugal-B'Laan, Inc. v. Sec. Ramos, 465 Phil. 860, 890 (2004).
[30] Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 528.
[31] Rene A.V. Saguisag, Sr. and Rene A.Q. Saguisag, Jr.
[32] Prof David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 762 (2006).
[33] Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000).
[34] Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110.
[35] The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015, 747 SCRA 1, 46.
[36] 258 Phil 479 (1989).
[37] REP. TEDDY BRAWNER BAGUILAT JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP. EMMANUEL A. BILLONES.
[38] BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 648 (2000).
[39] Biraogo v. The Philippine Truth Commission, 651 Phil. 374, 439 (2010).
[40] Maglalang v. Philippine Amusement and Gaming Corp., 723 Phil. 546, 556 (2013).
[41] Id.
[42] Id. at 557.
[43] Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction, which are based on sound public policy and practical considerations, are not inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of nonexhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo warranto proceedings. (See Republic v. Lacap, 546 Phil. 87, 97-98 [2007]).
[44] Book IV, Chapter 1, Section 1 of the Administrative Code.
[45] Direct resort to the Court is allowed as follows (1) when there are genuine issues of constitutionality that must be addressed at the most immediate time; (2) when the issues involved are of transcendental importance; (3) when cases of first impression are involved; and (4) when constitutional issues raised are better decided by the Court; (5) when the time element presented in the case cannot be ignored; (6) when the filed petition reviews the act of a constitutional organ; (7) when petitioners rightly claim that they had no other plain, speedy and adequate remedy in the ordinary course of law that could free them from the injurious effects of respondents' acts in violation of their right to freedom of expression; and (8) when the petition includes questions that are "dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were foundo be patent nullities, or the appeal was considered as clearly an inappropriate remedy." (See The Diocese of Bacolod v. Commission on Elections, supra note 35, at 45-49.
[46] Almario, et al. v. Executive Secretary, et al., 714 Phil. 127, 169 (2013).
[47] SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
[48] SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.
[49] SECTION 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth atriotism and nationalism, and encourage their involvement in public and civic affairs.
[50] SECTION 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.
[51] SECTION 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
[52] SECTION 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.
[53] SECTION 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
[54] SECTION 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
[55] SECTION 3. x x x
(2) They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.
[56] SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
[57] SECTION 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.
A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.
The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeying is commenced as herein provided.
[58] 338 Phil. 546 (1997).
[59] Tañada v. Angara, supra, at 580-581. (Citations omitted). The case was cited in Tondo Medical Center Employees Ass'n v. Court of Appeals, 554 Phil. 609, 625-626 (2007); Bases Conversion and Development Authority v. COA, 599 Phil. 455, 465 (2009); and Representatives Espina, et al. v. Han. Zamora, Jr. (Executive Secretary), et al., 645 Phil. 269, 278-279 (2010). See also Manila Prince Hotel v. GSIS, 335 Phil. 82, 101-102 (1997).
[60] Executive Order No. 292, s. 1987, Signed on July 25, 1987.
[61] Biraogo v. The Phil. Truth Commission of 2010, 651 Phil. 374, 451 (2010).
[62] Philippine Constitution Association v. Enriquez, G.R. No. 113105, 113174, 113766, and 113888, August 19, 1994, 235 SCRA 506, 552.
[63] Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426 & 212444, January 12, 2016.
[64] Almario, et al. v. Executive Secretary, et al., supra note 46, at 164, as cited in Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., supra note 63.
[65] Almario, et al. v. Executive Secretary, et al., supra note 46, at 164.
[66] Entitled "An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes and Patriots of the Country," approved on June 16, 1948.
[67] Section 1.
[68] Sec. 2. There is hereby created a Board on National Pantheon composed of the Secretary of the Interior, the Secretary of Public Works and Communications and the Secretary of Education and two private citizens to be appointed by the President of the Philippines with the consent of the Commission on Appointments which shall have the following duties and functions:
(a) To determine the location of a suitable site for the construction of the said National Pantheon, and to have such site acquired, surveyed and fenced for this purpose and to delimit and set aside a portion thereof wherein shall be interred the remains of all Presidents of the Philippines and another portion wherein the remains of heroes, patriots and other great men of the country shall likewise be interred;
(b) To order and supervise the construction thereon of uniform monuments, mausoleums, or tombs as the Board may deem appropriate;
(c) To cause to be interred therein the mortal remains of all Presidents of the Philippines, the national heroes and patriots;
(d) To order and supervise the construction of a suitable road leading to the said National Pantheon from the nearest national or provincial road; and
(e) To perform such other functions as may be necessary to carry out the purposes of this Act.
[69] Office of the President of the Philippines. (1953). Official Month in Review. Official Gazette of the Republic of the Philippines, 49(5), lxv-lxxvi (http://www.gov.ph/1953/05/01/official-month-in-review-may-1953/, last accessed on October 28, 2016).
[70] Approved on February 25, 2013, R.A. No. 10368 is the consolidation of House Bill (H.B.) No. 5990 and Senate Bill (S.B.) No. 3334. H.B. No. 5990, entitled "An Act Providing Compensation To Victims Of Human Rights Violations During The Marcos Regime, Documentation Of Said Violations, Appropriating Funds Therefor, And For Other Purposes," was co-sponsored by Lorenzo R. Tañada III, Edcel C. Lagman, Rene L. Relampagos, Joseph Emilio A. Abaya, Walden F. Bello, Kaka J. Bag-ao, Teodoro A. Casiño, Neri Javier Colmenares, Rafael V. Mariano, Luzviminda C. Ilagan, Antonio L. Tinio, Emerenciana A. De Jesus, and Raymond V. Palatino. No member of the House signified an intention to ask any question during the period of sponsorship and debate, and no committee or individual amendments were made during the period of amendments (Congressional Record, Vol. 2, No. 44, March 14, 2012, p. 3). The bill was approved on Second Reading (Congressional Record, Vol. 2, No. 44, March 14, 2012, p. 4). On Third Reading, the bill was approved with 235 affirmative votes, no negative vote, and no abstention (Congressional Record, Vol. 2, No. 47, March 21, 2012, p. 15). On the other hand, S.B. No. 3334, entitled "An Act Providing For Reparation And Recognition Of The Survivors And Relatives Of The Victims Of Violations Of Human Rights And Other Related Violations During The Regime Of Former President Ferdinand Marcos, Documentation Of Said Violations, Appropriating Funds Therefor, And For Other Purposes," was coauthored by Sergio R. Osmena III, Teofisto D. Guingona III, Francis G. Escudero, and Franklin M. Drilon. Senators Drilon and Panfilo M. Lacson withdrew their reservation to interpellate on the measure (Senate Journal No. 41, December 10, 2012, p. 1171). The bill was approved on Second Reading with no objection (Senate Journal No. 41, December 10, 2012, p. 1172). On Third Reading, the bill was approved with 18 senators voting in favor, none against, and no abstention (Senate Journal No. 44, December 17, 2012, p. 1281).
[71] Human Rights Violations Victim (HRVV) refers to a person whose human rights were violated by persons acting in an official capacity and/or agents of the State as defined herein. In order to qualify for reparation under this Act, the human rights violation must have been committed during the period from Soptomboc 21, 1972 to February 25, 1986: Provided, however, That victims of human rights violations that were committed one (1) month before September 21, 1972 and one (1) month after February 25, 1986 shall be entitled to reparation under this Act if they can establish that the violation was committed:
(1) By agents of the State and/or persons acting in an official capacity as defined hereunder;
(2) For the purpose of preserving, maintaining, supporting or promoting the said regime; or
(3) To conceal abuses during the Marcos regime and/or the effects of Martial Law. (Sec. 3[c] of R.A. No. 10368).
[72] Section 11 Article II and Section 12 Article III of the 1987 Constitution as well as Section 2 of Article II of the 1987 Constitution in relation to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment, and other international human rights laws and conventions (See Sec. 2 of R.A. No. 10368).
[73] The claimants in the class suit and direct action plaintiffs in the Human Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 86-0390) in the US Federal District Court of Honolulu, Hawaii wherein a favorable judgment has been rendered, and the HRVVs recognized by the Bantayog Ng Mga Bayani Foundation shall be extended the conclusive presumption that they are HRVVs. However, the Human Rights Victims' Claims Board is not deprived of its original jurisdiction and its inherent power to determine the extent of the human rights violations and the corresponding reparation and/or recognition that may be granted (See Sec. 17 of R.A. No. 10368).
[74] Sec. 4 of R.A. No. 10368.
[75] Sec. 5 of R.A. No. 10368.
[76] Sec. 26 of R.A. No. 10368.
[77] Id.
[78] Id.
[79] Sec. 27 of R.A. No. 10368.
[80] "Memorialization" refers to the preservation of the memory of the human rights violations victims, objects, events and lessons learned during the Marcos regime. This is part of the inherent obligation of the State to acknowledge the wrongs committed in the past, to recognize the heroism and sacrifices of all Filipinos who were victims of gross human rights violations during Martial Law, and to prevent the recurrence of similar abuses. (Sec. 1 [j], Rule II, IRR of R.A. No. 10368).
[81] Sec. 1, Rule VII, IRR of R.A. No. 10368.
[82] Sec. 2, Rule VII, IRR of R.A. No. 10368.
[83] Sec. 3, Rule VII, IRR of R.A. No. 10368.
[84] Remman Enterprises, Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al., 726 Phil. 104, 118-119 (2014).
[85] Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
[86] IX. Reparation for harm suffered
15. Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.
16. States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.
17. States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgements.
18. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
19. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one's place of residence, restoration of employment and return of property.
20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
21. Rehabilitation should include medical and psychological care as well as legal and social services.
22. Satisfaction should include, where applicable, any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim's relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations;
(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;
(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;
(e) Public apology, including acknowledgment of the facts and acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.
23. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;
(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.
[87] PRINCIPLE 2. THE INALIENABLE RIGHT TO THE TRUTH
Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.
PRINCIPLE 3. THE DUTY TO PRESERVE MEMORY
A people's knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfillment of the State's duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
[88] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of December 16, 1966, entry into force March 23, 1976, in accordance with Article 49 (http.//www.ohchr.org/en/professionalinterest/pages/ccpr.aspx, last accessed on October 28, 2016).
[89] A.M. No. 07-9-12-SC, Effective on October 24, 2007.
[90] A.M. No. 08-1-16-SC, Effective on February 2, 2008.
[91] Reiterated in OCA Circular No. 103-07 dated October 16, 2007 and OCA Circular No. 46-09 dated April 20, 2009.
[92] VI. Treatment of victims
10. Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation.
[93] Originated from A.O. No. 101 dated Docember 13, 1988 and A.O. No. 29 dated January 27, 2002.
[94] Sec. 4 of R.A. No. 10086.
[95] Sec. 5 ofR.A. No. 10086.
[96] Id.
[97] Approved on March 26, 2010.
[98] Approved on May 12, 2010 and took effect on June 13, 2010.
[99] Sec. 2 of R.A. 10066 and Sec. 2 of R.A. 10086.
[100] Id.
[101] Id.
[102] See Sec. 4 (d) ofR.A. 10066 in relation to Sec. 3 (u) of R.A. No. 10066 and Sec. 3 (n) of R.A. No. 10086. The Implementing Rules and Regulations of R.A. No. 10086 specifically defines National Historical Shrine as "a site or structure hallowed and revered for its association to national heroes or historical events declared by the Commission." (Art. 6[q.], Rule 5, Title I)
[103] R.A. No. 597, as amended by R.A. Nos. 1569 and 1607.
[104] E.O. No. 58 issued on August 16, 1954 (See Arula v. Brig. Gen. Espino, etc., et al., 138 Phil. 570, 589-591 (1969)).
[105] R.A. No. 2733.
[106] R.A. No. 4039.
[107] Proclamation No. 207 dated May 27, 1967.
[108] Proclamation No. 433 dated July 23, 1968.
[109] R.A. No. 5648.
[110] R.A. No. 5649.
[111] R.A. No. 5695.
[112] Proclamation No. 618 dated October 13, 1969, as amended by Proclamation No. 1272 dated June 4, 1974.
[113] R.A. No. 6468.
[114] Batas Pambansa Bilang 309 dated November 14, 1982.
[115] Proclamation No. 1992 dated February 8, 2010.
[116] P.D. No. 105 dated January 24, 1973.
[117] Entitled "Declaring National Shrines As Sacred (Hallowed) Places And Prohibiting Desecration Thereof" (Signed on January 24, 1973)
[118] Sec. 48 (b).
[119] Sec. 31 (d) of R.A. No. 10066.
[120] Sec. 5 (d) of R.A. No. 10086.
[121] Article 12 (e) and (f) Rule 8 Title III of the Implementing Rules and Regulations of R.A. No. 10086.
[122] Proclamation No. 25 dated April 18, 1966.
[123] Proclamation No. 1682 dated October 17, 1977.
[124] Proclamation No. 842 dated December 7, 1991 and R.A. No. 8221.
[125] Proclamation No. 228 dated August 12, 1993.
[126] Proclamation No. 425 dated July 13, 1994.
[127] R.A. No. 10796.
[128] http://server.pvao.mil.ph/PDF/shrines/usafipnl.pdf, last accessed on September 19, 2016.
[129] Proclamation No. 208 dated May 28, 1967.
[130] See Whereas Clause of Proclamation No. 86.
[131] Section I, Article XV, Chapter I, Part XII of the IRP.
[132] Book IV, Title VIII, Subtitle II, Chapter 1, Sec. 18.
[133] Book IV, Title VIII, Subtitle II, Chapter 5, Sec. 32(4).
[134] See Annex to the Manifestation of the AFP Adjutant General and http://server.pvao.mil.ph/PDF/shrines/libingan.pdf (last accessed on October 25, 2016).
[135] P.D. No. 105 is an issuance of Marcos, acting as the AFP Commander-in-Chief and by virtue of his powers under the Martial Law. It was not a law that was enacted by the Congress.
[136] P.D. No. 208 was signed on May 28, 1967 while P.D. No. 105 was signed on January 24, 1973.
[137] Among those named were the birthplace of Dr. Jose Rizal in Calamba, Laguna, Talisay, Dapitan City, where the hero was exiled for four years, Fort Santiago, Manila, where he was imprisoned in 1896 prior to his execution; Talaga, Tanauan, Batangas where Apolinario Mabini was born, Pandacan, Manila, where Mabini's house in which he died, is located; Aguinaldo Mansion in Kawit, Cavite, where General Emilio Aguinaldo, first President of the Philippines, was born, and where Philippine Independence was solemnly proclaimed on June 12, 1898; and Batan, Aklan, where the "Code of Kalantiyaw" was promulgated in 1433.
[138] Under the principle of ejusdem generis, "where a general word or phrase follows an enumeration of particular and specific words of the same class or where the latter follow the former, the general word or phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned."
The purpose and rationale of the principle was explained by the Court in National Power Corporation v. Angas as follows:
The purpose of the rule on ejusdem generis is to give effect to both the particular and general words, by treating the particular words as indicating the class and the general words as including all that is embraced in said class, although not specifically named by the particular words. This is justified on the ground that if the lawmaking body intended the general terms to be used in their unrestricted sense, it would have not made an enumeration of particular subjects but would have used only general terms. [2 Sutherland, Statutory Construction, 3rd ed., pp. 395-400]. (See Pelizloy Realty Corp. v. The Province of Benguet, 708 Phil. 466, 480-481 [2013], as cited in Alta Vista Golf and Country Club v. City of Cebu, G.R. No. 180235, January 20, 2016)[139] See Cudia v. The Superintendent of the Philippine Military Academy (PMA), G.R. No. 211362, February 24, 2015, 751 SCRA 469, 542.
[140] Also includes the United States Soldiers' and Airmen's National Cemetery in the District of Columbia.
[141] See 32 C.F.R. § 553.3 and 10 U.S.C.A. § 4721.
[142] Id.
[143] 10 U.S.C.A. § 4723.
[144] 36 C.F.R. § 12.2.
[145] Id.
[146] Id.
[147] See National Electrification Administration v. COA, 427 Phil. 464, 485 (2002).
[148] On August 19, 1992, the Government of the Republic of the Philippines, represented by Department of Interior and Local Government (DILG) Secretary Rafael M. Alunan III, and the family of the late President Marcos, represented by his widow, Mrs. Imelda R. Marcos, agreed on the following conditions and procedures by which the remains of the former President shall be brought back to and interred in the Philippines:
On August 26, 1992, DILG Secretary Alunan informed Mrs. Marcos of the government's decision that former President Marcos be accorded honors befitting a war veteran, and a former member of the AFP which, in general terms, includes the following: Flag Draped Coffin, Vigil Guards during the wake, Honor Guard, Firing Detail, Taps, and Pallbearers composed of retired generals under his command.I
It is hereby agreed that the remains of former President Ferdinand E. Marcos shall be allowed to be brought back to the Philippines from Hawaii, USA on 1 September 1992.II
That the remains shall be brought directly from Hawaii, USA to Laoag, Ilocos Norte by means of an aircraft which shall fly directly to its port of destination at Laoag International Airport, Laoag, Ilocos Norte. It shall be understood that once the aircraft enters the Philippine area of responsibility, stopover for whatever reason in any airport other than the airport of destination shall be allowed only upon prior clearance from the Philippine Government.III
That the family of the late President Marcos undertakes to fix a wake period of nine (9) days beginning 1 September 1992 to allow friends, relatives and supporters to pay their courtesy, last respect and homage to the former President at the Marcos family home at Batac, Ilocos Norte. It shall undertake further to maintain peaceful and orderly wake and/or help and cooperate with the local government authorities ensure that the same will not be used to foment and promote civil disorder.IV
That the remains shall be buried [temporarily interred] on the 9th of September 1992 at the family burial grounds at Batac, Ilocos Norte, provided that any transfer of burial grounds shall be with prior clearance from the Philippine Government taking into account the prevailing socio-political climate.V
The government shall provide appropriate military honors during the wake and interment, the details of which shall be arranged and finalized by and between the parties thereto.VI
The Government shall ensure that the facilities at Laoag International Airport will allow for a safe landing as well as processing of incoming passengers, their cargoes and/or existing laws and regulations.
On August 25, 1993, Roque R. Ablan Jr. wrote DILG Secretary Alunan, confirming the previous arrangements between him and Mrs. Marcos, and also the arrangements made by Ablan before President Fidel V. Ramos on the following matters:
Ablan also informed DILG Secretary Alunan of the following details: (1) the remains of former President Marcos would arrive in Laoag City, Ilocos Norte on September 7, 1993; (2) from the airport, the remains would be brought to the Laoag City Cathedral, and after the mass, it would be brought to the Capitol for public viewing; (3) on the next day, the remains would be brought to Batac where it should be placed side by side with the late Doña Josefa Edralin Marcos; (4) that on September 9, Doña Josefa Marcos would be buried in the cemetery besides Governor Elizabeth Marcos Roca; and (5) on September 10, the late President Marcos would be buried in the mausoleum.
- Direct flight of the remains of the late Pres. Marcos from Honolulu to Laoag.
- That there will be an interim burial of the late Pres. Marcos in Batac, Ilocos Norte until such time when President Ramos will feel that the healing period would have been attain[ed] and that he shall be transferred to Manila for final burial.
- That the remains will not be paraded to the other provinces.
- That [Ablan] discussed this with Mrs. Marcos this morning and that she had given me full authority to assure the government that everything will be in accordance with the memo of understanding, and the pronouncement made by President Ramos that the remains can stay at the Don Mariano Marcos State University provided no government expenditures will be incurred and that the place will not be disturbed.
On September 10, 1993, the coffin of former President Marcos was opened inside the mausoleum and was subsequently placed inside a transparent glass for viewing.
[149] Book III, Title I, Chapter 4, Section 14 of the Administrative Code.
[150] From December 30, 1965 until February 25, 1986 when he and his immediate family members were forcibly exiled in the USA because of the EDSA People Power Revolution.
[151] He was an Assemblyman (1949 to 1959) and a Senator (1959-1965), serving as Senate President during his last three (3) years.
[152] From December 31, 1965 to January 20, 1967.
[153] On November 15, 1941, Marcos was called and inducted to the United States Armed Forces in the Far East (USAFFE) as Third Lieutenant. From November 16, 1941 to April 8, 1942, he was assigned as assistant G-2 of the 21st (Lightning) Division of the USAFFE, where he attained the rank of First Lieutenant. He was then promoted to the rank of Colonel under Special Orders No. 68 dated September 25, 1962. In Special Orders No. 264 dated June 11, 1963 and General Orders No. 265 dated May 19, 1964, he remained listed as Colonel. (See Annex "13" of the Consolidated Comment filed by the OSG).
[154] The PVAO recognized Marcos as a member of the retired army personnel. Based on a Certification dated August 18, 2016 issued by PVAO's Records Management Division Chief, respondent Imelda Romualdez Marcos is receiving P5,000.00 as Old Age Pension, being the surviving spouse of a retired veteran under R.A. No. 6948, as amended. (See Annex "12" of the Consolidated Comment filed by the OSG).
[155] During his military career, Marcos was awarded a Medal of Valor through General Orders No. 167 dated October 16, 1968 "for extraordinary gallantry and intrepidity at the risk of life, above and beyond the call of duty in a suicidal action against overwhelming enemy forces at the junction of Salian River and Abo-Abo River, Bataan, on or about 22 January 1942." (See Annex "14" of Consolidated Comment filed by the OSG).
[156] See Yap v. Commission on Audit, 633 Phil. 174, 188 (2010).
[157] Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771 & 181527, December 8, 2015.
[158] Almario, et al. v. Executive Secretary, et al., supra note 46, at 166.
[159] 10 U.S.C.A. § 4722.
[160] 32 C.F.R. § 553.12
[161] The following persons are not eligible for interment, inurnment, or memorialization in an Army National Military Cemetery:
(a) A father, mother, brother, sister, or in-law solely on the basis of his or her relationship to a primarily eligible person, even though the individual is:
(1) Dependent on the primarily eligible person for support; or
(2) A member of the primarily eligible person's household.
(b) A person whose last period of service was not characterized as an honorable discharge (e.g., a separation or discharge under general but honorable conditions, other than honorable condbiatdions, a conduct discharge, a dishonorable discharge, or a dismissal), regardless of whether the person:
(1) Received any other veterans' benefits; or
(2) Was treated at a Department of Veterans Affairs hospital or died in such a hospital.
(c) A person who has volunteered for service with the U.S. Armed Forces, but has not yet entered on active duty.
(d) A former spouse whose marriage to the primarily eligible person ended in divorce.
(e) A spouse who predeceases the primarily eligible person and is interred or inurned in a location other than Arlington National Cemetery, and the primarily eligible person remarries.
(f) A divorced spouse of a primarily eligible person.
(g) Otherwise derivatively eligible persons, such as a spouse or minor child, if the primarily eligible person was not or will not be interred or inurned at Arlington National Cemetery.
(h) A service member who dies while on active duty, if the first General Courts Martial Convening Authority in the service member's chain of command determines that there is clear and convincing evidence that the service member engaged in conduct that would have resulted in a separation or discharge not characterized as an honorable discharge (e.g., a separation or discharge under general but honorable conditions, other than honorable conditions, a bad conduct discharge, a dishonorable discharge, or a dismissal) being imposed, but for the death of the service member.
(i) Animal remains. If animal remains are unintentionally commingled with human remains due to a natural disaster, unforeseen accident, act of war or terrorism, violent explosion, or similar incident, and such remains cannot be separated from the remains of an eligible person, then the remains may be interred or inurned with the eligible person, but the identity of the animal remains shall not be inscribed or identified on a niche, marker, headstone, or otherwise. (See 32 C.F.R. § 553.19)
[162] (a) Prohibition. Notwithstanding §§ 553.12-553.16, 553.18, and 553.22, pursuant to 10 U.S.C. 985 and 38 U.S.C. 2411, the interment, inurnment, or memorialization in an Army National Military Cemetery of any of the following persons is prohibited:
(1) Any person identified in writing to the Executive Director by the Attorney General of the United States, prior to his or her interment, inumment, or memorialization, as a person who has been convicted of a Federal capital crime and whose conviction is final (other than a person whose sentence was commuted by the President).
(2) Any person identified in writing to the Executive Director by an appropriate State official, prior to his or her interment, inurnment, or memorialization, as a person who has been convicted of a State capital crime and whose conviction is final (other than a person whose sentence was commuted by the Governor of the State).
(3) Any person found under procedures specified in § 553.21 to have committed a Federal or State capital crime but who has not been convicted of such crime by reason of such person not being available for trial due to death or flight to avoid prosecution. Notice from officials is not required for this prohibition to apply.
(4) Any person identified in writing to the Executive Director by the Attorney General of the United States or by an appropriate State official, prior to his or her interment, inurnment, or memorialization, as a person who has been convicted of a Federal or State crime causing the person to be a Tier III sex offender for purposes of the Sex Offender Registration and Notification Act, who for such crime is sentenced to a minimum of life imprisonment and whose conviction is final (other than a person whose sentence was commuted by the President or the Governor of a State, as the case may be).
(b) Notice. The Executive Director is designated as the Secretary of the Army's representative authorized to receive from the appropriate Federal or State officials notification of conviction of capital crimes referred to in this section.
(c) Confirmation of person's eligibility.
(1) If notice has not been received, but the Executive Director has reason to believe that the person may have been convicted of a Federal capital crime or a State capital crime, the Executive Director shall seek written confirmation from:
(i) The Attorney General of the United States, with respect to a suspected Federal capital crime; or
(ii) An appropriate State official, with respect to a suspected State capital crime.
(2) The Executive Director will defer the decision on whether to inter, inurn, or memorialize a decedent until a written response is received. (See 32 C.F.R.
[163] The medal of honor awarded posthumously to a deceased member of the armed forces who, as an unidentified casualty of a particular war or other armed conflict, is interred in the Tomb of the Unknowns at Arlington National Cemetery, Virginia, is awarded to the member as the representative of the members of the armed forces who died in such war or other armed conflict and whose remains have not been identified, and not to the individual personally. (10 U.S.C.A. § 1134)
[164] Includes the Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, United States Trade Representative, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security, Director of the Office of Management and Budget, Commissioner of Social Security, Social Security Administration, Director of National Drug Control Policy, Chairman and Board of Governors of the Federal Reserve System, and Director of National Intelligence.
[165] Includes the Deputy Secretary of Defense, Deputy Secretary of State, Deputy Secretary of State for Management and Resources, Administrator of Agency for International Development, Administrator of the National Aeronautics and Space Administration, Deputy Secretary of Veterans Affairs, Deputy Secretary of Homeland Security, Under Secretary of Homeland Security for Management, Deputy Secretary of the Treasury, Deputy Secretary of Transportation, Chairman of Nuclear Regulatory Commission, Chairman of Council of Economic Advisers, Director of the Office of Science and Technology, Director of the Central Intelligence Agency, Secretary of the Air Force, Secretary of the Army, Secretary of the Navy, Administrator of Federal Aviation Administration, Director of the National Science Foundation, Deputy Attorney General, Deputy Secretary of Energy, Deputy Secretary of Agriculture, Director of the Office of Personnel Management, Administrator of Federal Highway Administration, Administrator of the Environmental Protection Agency, Under Secretary of Defense for Acquisition, Technology, and Logistics, Deputy Secretary of Labor, Deputy Director of the Office of Management and Budget, Independent Members of Thrift Depositor Protection Oversight Board, Deputy Secretary of Health and Human Services, Deputy Secretary of the Interior, Deputy Secretary of Education, Deputy Secretary of Housing and Urban Development, Deputy Director for Management of Office of Management and Budget, Director of the Federal Housing Finance Agency, Deputy Commissioner of Social Security, Social Security Administration, Administrator of the Community Development Financial Institutions Fund, Deputy Director of National Drug Control Policy, Members and Board of Governors of the Federal Reserve System, Under Secretary of Transportation for Policy, Chief Executive Officer of Millennium Challenge Corporation, Principal Deputy Director of National Intelligence, Director of the National Counterterrorism Center, Director of the National Counter Proliferation Center, Administrator of the Federal Emergency Management Agency and Federal Transit Administrator.
[166] The following persons are eligible for inurnment in the Arlington National Cemetery Columbarium, unless otherwise prohibited as provided for in §§ 553.19-553.20, provided that the last period of active duty of the service member or veteran ended with an honorable discharge.
(a) Primarily eligible persons. The following are primarily eligible persons for purposes of inurnment:
(1) Any person eligible for interment in Arlington National Cemetery, as provided for in § 553.12(a).
(2) Any veteran who served on active duty other than active duty for training.
(3) Any member of a Reserve component of the Armed Forces who dies while:
(i) On active duty for training or performing full-time duty under title 32, United States Code;
(ii) Performing authorized travel to or from such active duty for training or full-time duty;
(iii) On authorized inactive-duty training, including training performed as a member of the Army National Guard of the United States or the Air National Guard of the United States; or
(iv) Hospitalized or receiving treatment at the expense of the Government for an injury or disease incurred or contracted while on such active duty for training or full-time duty, traveling to or from such active duty for training or full-time duty, or on inactive-duty training.
(4) Any member of the Reserve Officers' Training Corps of the United States, Army, Navy, or Air Force, whose death occurs while:
(i) Attending an authorized training camp or cruise;
(ii) Performing authorized travel to or from that camp or cruise; or
(iii) Hospitalized or receiving treatment at the expense of the Government for injury or disease incurred or contracted while attending such camp or cruise or while traveling to or from such camp or cruise.
(5) Any citizen of the United States who, during any war in which the United States has been or may hereafter be engaged, served in the armed forces of any government allied with the United States during that war, whose last service ended honorably by death or otherwise, and who was a citizen of the United States at the time of entry into that service and at the time of death.
(6) Commissioned officers, United States Coast and Geodetic Survey (now National Oceanic and Atmospheric Administration) who die during or subsequent to the service specified in the following categories and whose last service terminated honorably:
(i) Assignment to areas of immediate military hazard.
(ii) Served in the Philippine Islands on December 7, 1941.
(iii) Transferred to the Department of the Army or the Department of the Navy under certain statutes.
(7) Any commissioned officer of the United States Public Health Service who served on full-time duty on or after July 29, 1945, if the service falls within the meaning of active duty for training as defined in 38 U.S.C. 101(22) or inactive duty training as defined in 38 U.S.C. 101(23) and whose death resulted from a disease or injury incurred or aggravated in line of duty. Also, any commissioned officer of the Regular or Reserve Corps of the Public Health Service who performed active service prior to July 29, 1945 in time of war; on detail for duty with the Armed Forces; or while the service was part of the military forces of the United States pursuant to Executive order of the President.
(8) Any Active Duty Designee as defined in this part.
(b) Derivatively eligible persons. Those connected to an individual described in paragraph (a) of this section through a relationship described in § 553.12(b). Such individuals may be inurned if space is available in the primarily eligible person's niche. (32 C.F.R. § 553.13).
[167] (a) The cremated remains of any person eligible for interment in Arlington National Cemetery as described in § 553.12 may be interred in the designated Arlington National Cemetery Unmarked Area.
(b) Cremated remains must be interred in a biodegradable container or placed directly into the ground without a container. Cremated remains are not authorized to be scattered at this site or at any location within Arlington National Cemetery.
(c) There will be no headstone or marker for any person choosing this method of interment. A permanent register will be maintained by the Executive Director.
(d) Consistent with the one-gravesite-per-family policy, once a person is interred in the Unmarked Area, any derivatively eligible persons and spouses must be interred in this manner. This includes spouses who are also primarily eligible persons. No additional gravesite, niche, or memorial marker in a memorial area will be authorized. (32 C.F.R. § 553.14).
[168] (a) The Executive Director may authorize a group burial in Arlington National Cemetery whenever several people, at least one of whom is an active duty service member, die during a military-related activity and not all remains can be individually identified.
(b) Before authorizing a group burial that includes both United States and foreign decedents, the Executive Director will notify the Department of State and request that the Department of State notify the appropriate foreign embassy. (32 C.F.R. § 553.15).
[169] 32 C.F.R. § 553.22(a).
[170] Id.
[171] Approved on March 22, 2001 and published in national newspapers of general circulation on April 9, 2001 as well as in the Official Gazette on July 9, 2001. It repealed P.O. No. 1687 dated March 24, 1980.
[172] Sec. 1 of R.A. No. 9049.
[173] Id.
[174] In the event of the awardee's death, the gratuity shall accrue in equal shares and with the right of accretion to the surviving spouse until she remarries and to the children, legitimate, or adopted or illegitimate, until they reach the age of eighteen (18) or until they marry, whichever comes earlier.
[175] Sec. 1 of R.A. No. 6948.
[176] Amended by R.A. Nos. 7696, 9396, and 9499.
[177] A veteran refers to "any person who: (1) rendered military service in the land, sea or air forces of the Philippines during the revolution against Spain, the Philippine-American War, and World War II, including Filipino citizens who served with the Allied Forces in Philippine territory; (2) was a member of the Philippine Expeditionary Forces sent to the Korean War and the Philippine Civic Action Group sent to the Vietnam War; (3) rendered military service in the Armed Forces of the Philippines (AFP) and has been honorably discharged or retired after at least twenty (20) years total cumulative active service or sooner separated while in the active service in the AFP due to death or disability arising from a wound or injury received or sickness or disease incurred in line of duty." (Sec. 2 [a] of R.A. No. 6948, as amended by R.A. No. 9396).
[178] Sec. 25 of R.A. No. 6948.
[179] Section 14, Article III.
[180] (a) Preliminary inquiry. If the Executive Director has reason to believe that a decedent may have committed a Federal capital crime or a State capital crime but has not been convicted of such crime by reason of such person not being available for trial due to death or flight to avoid prosecution, the Executive Director shall submit the issue to the Army General Counsel. The Army General Counsel or his or her designee shall initiate a preliminary inquiry seeking information from Federal, State, or local law enforcement officials, or other sources of potentially relevant information.
(b) Decision after preliminary inquiry. If, after conducting the preliminary inquiry described in paragraph (a) of this section, the Army General Counsel or designee determines that credible evidence exists suggesting the decedent may have committed a Federal capital crime or State capital crime, then further proceedings under this section are warranted to determine whether the decedent committed such crime. Consequently the Army General Counsel or his or her designee shall present the personal representative with a written notification of such preliminary determination and a dated, written notice of the personal representative's procedural options.
(c) Notice and procedural options. The notice of procedural options shall indicate that, within fifteen days, the personal representative may:
(1) Request a hearing;
(2) Withdraw the request for interment, inurnment, or memorialization; or
(3) Do nothing, in which case the request for interment, inurnment, or memorialization will be considered to have been withdrawn.
(d) Time computation. The fifteen-day time period begins on the calendar day immediately following the earlier of the day the notice of procedural options is delivered in person to the personal representative or is sent by U.S. registered mail or, if available, by electronic means to the personal representative. It ends at midnight on the fifteenth day. The period includes weekends and holidays.
(e) Hearing. The purpose of the hearing is to allow the personal representative to present additional information regarding whether the decedent committed a Federal capital crime or a State capital crime. In lieu of making a personal appearance at the hearing, the personal representative may submit relevant documents for consideration.
(1) If a hearing is requested, the Army General Counsel or his or her designee shall conduct the hearing.
(2) The hearing shall be conducted in an informal manner.
(3) The rules of evidence shall not apply.
(4) The personal representative and witnesses may appear, at no expense to the Government, and shall, in the discretion of the Army General Counsel or his or her designee, testify under oath. Oaths must be administered by a person who possesses the legal authority to administer oaths.
(5) The Army General Counsel or designee shall consider any and all relevant information obtained.
(6) The hearing shall be appropriately recorded. Upon request, a copy of the record shall be provided to the personal representative.
(f) Final determination. After considering the opinion of the Army General Counsel or his or her designee, and any additional information submitted by the personal representative, the Secretary of the Army or his or her designee shall determine the decedent's eligibility for interment, inurnment, or memorialization. This determination is final and not appealable.
(1) The determination shall be based on evidence that supports or undermines a conclusion that the decedent's actions satisfied the elements of the crime as established by the law of the jurisdiction in which the decedent would have been prosecuted.
(2) If an affirmative defense is offered by the decedent's personal representative, a determination as to whether the defense was met shall be made according to the law of the jurisdiction in which the decedent would have been prosecuted.
(3) Mitigating evidence shall not be considered.
(4) The opinion of the local, State, or Federal prosecutor as to whether he or she would have brought charges against the decedent had the decedent been available is relevant but not binding and shall be given no more weight than other facts presented.
(g) Notice of decision. The Executive Director shall provide written notification of the Secretary's decision to the personal representative. (See 32 C.F.R. § 553.21; Effective: October 26, 2016 ).
[181] The requirements for a valid and reasonable classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class. (Ferrer. Jr. v. Bautista, G.R. No. 210551, June 30, 2015, 760 SCRA 652, 709-710).
[182] Commonwealth Act No. 408 dated September 14, 1938, as amended.
[183] ARTICLE 94. Various Crimes. - Any person subjected to military law who commits any crime, breach of law or violation of municipal ordinance, which is recognized as an offense of a penal nature and is punishable under the penal laws of the Philippines or under municipal ordinances, on a Philippine Army reservation, shall be punished as a court-martial may direct; Provided, That in time of peace, officers and enlisted men of the Philippine Constabulary shall not be triable by courts-martial for any felony, crime, breach of law or violation of municipal ordinances committed under this Article.
ARTICLE 95. Frauds Against the Government Affecting Matters and Equipments. - Any person subject to military law who, having charge, possession, custody, or control of any money or other property of the Commonwealth of the Philippines, furnished or intended for the military service thereof, knowingly delivers, or causes to be delivered, to any person having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt; or
Who, being authorized to make or deliver any paper certifying the receipt of any property of the Commonwealth of the Philippines furnished or intended for the military service thereof, makes or delivers to any person such writing, without having full knowledge of the truth of the statements therein contained and with intent to defraud the Philippines; or
Who steals, embezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, or other property of the Commonwealth of the Philippines furnished or intended for the military service thereof; or
Who knowingly purchases or receives in pledge for any obligation or indebtedness from any soldier, officer, or other person who is a part of or employed in said forces or service, any ordnance, arms, equipment, ammunition, clothing subsistence stores, or other property of the Commonwealth of the Philippines, such soldier, officer, or other person not having lawful right to sell or pledge the same;
Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court-martial may adjudge, or by any or all of said penalties. And if any person, being guilty of any of the offenses aforesaid while in the military service of the Philippines, received his discharge or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial in the same manner and to the same extent as if he had not received such discharge nor been dismissed. And if any officer, being guilty, while in the military service of the Philippines of embezzlement of ration savings, post exchange, company, or other like funds, or of embezzlement of money or other property entrusted to his charge by an enlisted man or men, receives his discharge, or is dismissed, or is dropped from the rolls, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial in the same manner and to the same extent as if he had not been so discharged, dismissed, or dropped from the rolls.
ARTICLE 97. General Article. - Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline and all conduct of a nature to bring discredit upon the military service shall be taken cognizance of by a general or special or summary court-martial according to the nature and degree of the offense, and punished at the discretion of such court. (Commonwealth Act No. 408 dated September 14, 1938, as amended by P.D. 1166 dated June 24, 1977)
Article 94 is under the jurisdiction of civil courts while Articles 95 to 97, as service-connected crimes or offenses, are under the jurisdiction of the court-martial (See R.A. No. 7055, Approved on June 20, 1991)
[184] On July 12, 2016, the NHCP published its study, entitled "Why Ferdinand E. Marcos Should Not Be Buried At The Libingan Ng Mga Bayani," concluding that Marcos' military record is fraught with myths, factual inconsistencies, and lies. The NHCP study demonstrated that: (I) Marcos lied about receiving U.S. Medals (Distinguished Service Cross, Silver Star, and Order of Purple Heart); (2) his guerilla unit, the Ang Mga Maharlika, was never officially recognized and neither was his leadership of it; (3) U.S. officials did not recognize Marcos' rank promotion from Major in 1944 to Lt. Col. by 1947; and (4) some of Marcos' actions as a soldier were officially called into question by the upper echelons of the U.S. Military, such as his command of the Alias Intelligence Unit (described as "usurpation"), his commissioning of officers (without authority), his abandonment of USAFIP-NL presumably to build in airfield for Gen. Roxas, his collection of money for the airfield (described as "illegal"), and his listing of his name on the roster of different units (called a "malicious criminal act").
[185] Emphasis supplied.
[186] Almario, et al. v. Executive Secretary, et al., supra note 46, at 163.
[187] Vol. IV Record, September 19, 1986, pp. 829-831; See also Bernas, Joaquin G., S.J., The Intent of the 1986 Constitution Writers. 1995. pp. 116-117.
DISSENTING OPINION
SERENO, CJ:
The whole thesis of respondents on the substantive issues lies in the absence of an express prohibition against the burial of former President Marcos; hence, they argue that this Court cannot characterize the current President's decision to have him buried at the Libingan ng mga Bayani (LMB) as one made in grave abuse of discretion.
Nothing can be more wrong, and no view more diminishing of the Judiciary's mandated role under the 1987 Constitution.
If the absence of an express prohibition were to be the primary or sole determinant of the merits of this case, then even the processing clerk of the administrative office supervising the LMB could decide this matter by simply ticking off the appropriate box in a Yes or No question that asks: "Is there an express statute that prohibits a President from burying a former bemedalled soldier or president in the Libingan ng Mga Bayani? If yes, bury. If no, do not bury."
To the contrary, the case can only be decided by deeply and holistically analyzing the extent and implications of the legal phenomenon called the power to exercise presidential discretion, and how it should be measured in this case.
In light of allegations that the decision to bury the late President will run counter to the Constitution, statutory standards and judicial pronouncements, this Court must take a step back in history to understand what the Constitution that it is defending stands for; whether it is in danger of being violated in spirit or in letter; and whether this danger is of such kind and degree that the exercise of presidential discretion should be restrained. This Court must also compare the statutory standards that have been raised and determine whether the course of action proposed by the President would run counter to those standards. This Court must also examine the doctrines and language employed in many of its decisions if it is to guard against heresy directed at the spirit of the Constitution that could undermine not just one doctrine, but perhaps the moral legitimacy of the Court itself.
This is how consequential any statement coming from the Court on this issue could be.
The Court's bounden duty is not only to preserve the Constitution, but also itself.
It has been posited that the Court should not meddle in a political maneuver that the President is compelled to make. Whether it is a maneuver that is animated by the need to maintain credibility in the eyes of important supporters, or whether it is necessary to advance unity in this country, is not a motivation that the President should be accountable for.
Likewise, it has been proposed that this Court should look beyond the past and shift its focus to today's political reality - that the present decision maker is the most powerful and the most popular politician in the republic; that for him to undertake the reforms he has promised requires that he be able to deliver on his promises; that the key to unity in this day and age is to forgive the past and give former President Marcos the honors due the office that he held and the bemedalled soldiering he rendered; and that in any event, the state has enacted many measures not only to compensate Martial Law victims but also to advance the cause of human rights.
At the initial stage of any discussion in this Court, these kinds of arguments are usually met with skepticism by its Members under the express unction of the Constitution as interpreted in the post-Marcos decisions.[1] For the relevant judicial powers provisions of the 1987 Constitution impels the Court to relegate the political question argument, and any semblance of such argument - deference, political wisdom, etc. to a status of non-importance, especially if it fails to satisfy the threshold test. Simply put, that test is whether indeed the question is one addressed to purely political exercises internal to the workings of the legislature;[2] or whether, on the part of the President, there are no legal standards against which his particular action can be evaluated.[3] Indeed, the Court has, in questions of grave national importance, generally exercised judicial review when the allegations of grave abuse of discretion are sufficiently serious.
For the implications of this case goes to the very fulcrum of the powers of Government: the Court must do what is right by correctly balancing the interests that are present before it and thus preserve the stability of Philippine democracy.
If the Court unduly shies away from addressing the principal question of whether a decision to bury the former President would contradict the anti Martial Law and human rights underpinnings and direction of the 1987 Constitution, it would, wittingly or unwittingly, weaken itself by diminishing its role as the protector of the constitutional liberties of our people. It would dissipate its own moral strength and progressively be weakened, unable to promptly speak against actions that mimic the authoritarian past, or issue judicial writs to protect the people from the excesses of government.
This Court must, perforce, painstakingly go through the process of examining whether any claim put forth herein by the parties genuinely undermines the intellectual and moral fiber of the Constitution. And, by instinct, the Court must defend the Constitution and itself.
The 1987 Constitution is the embodiment of the Filipino nations' enduring values, which this Court must zealously protect.
Countless times, this Court has said in so many words that the 1987 Constitution embodies the Filipinos' enduring values.[4] The protection of those values has consequently become the duty of the Court. That this is the legal standard by which to measure whether it has properly comported itself in its constitutional role has been declared in various fashions by the Court itself.
See, for example, how this Court articulated its duty to protect the environment,[5] women,[6] children,[7] labor,[8] the indigenous people,[9] and consistently, those who have been or are in danger of being deprived of their human rights.[10]
Note the power that the Constitution vests in the Court to actively promulgate rules for the protection of human rights, and how the Court in turn described this duty when it promulgated the writs of kalikasan, habeas data, and amparo.[11]
Any conclusion in this case that betrays a lack of enthusiasm on the part of this Court to protect the cherished values of the Constitution would be a judicial calamity. That the Judiciary is designed to be passive relative to the "active" nature of the political departments is a given. But when called upon to discharge its relatively passive role, the post-1986 Supreme Court has shown zealousness in the protection of constitutional rights, a zealousness that has been its hallmark from then up to now. It cannot, in the year 2016, be reticent in asserting this brand of protective activism.
Not everything legally required is written in black and white; the Judges' role is to discern within the penumbra.
As early as 1950, the Civil Code, a creation of the Legislature, has instructed the Judiciary on how to proceed in situations where there is no applicable law or where there is ambiguity in the legislation that seems to apply to the case at hand. The code provides:
Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.I do not believe that this Court is bereft of sufficient guides that can aid in the exercise of its role of protecting and advancing constitutional rights. It must with a magnifying lens examine whether clear intent, historical references, and express mandates can be found in the 1987
Article 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.
Constitution and whether these are relevant to this case. We must pick them out and examine them. The ill-gotten wealth statutes, the remedial human rights legislation - all describe the burden of a nation that must recover from the financial and moral plunder inflicted upon this nation by Marcos, his family and his cronies. We must get our bearings from these guideposts and find out if they instruct us on what must be done with respect to his proposed burial beyond the express and implied condemnation of the wrongs he has committed against the country. The pronouncements of this Court and those of the Sandiganbayan, the legal pleadings and administrative propositions submitted by the Philippine government to international and local tribunals from 1987 to the present a full 29 years from these we must infer an indication of the treatment that should be given to the proposed action of the Government.
That constitutional and statutory interpretation is the bread and butter of adjudication is beyond cavil. From the oldest cases in the Philippine Reports to its latest decision,[12] this Court has been in the business of filling in gaps, interpreting difficult texts, so that "right and justice will prevail." That this is the entire reason for the existence of the Judiciary is self-evident. The end of "judging" is not to do what an administrative clerk can very well do; it is to ensure that "right and justice" will prevail.
Indeed, that judges must interpret statutes as well as declare the existence and protection of individual rights so that "justice and right" might prevail has been the essence of an independent Judiciary. This has been so from the time that the necessity for such independence was first recognized by the 1215 Magna Carta signed by King John; that no man, not even the highest ruler of the land and King John believed in his divine right to rule - can exercise power in such a way that denies the fundamental liberty of any man.
And the modern Judiciary has progressed considerably from that time. The Philippine Judiciary will thus be measured by the universal standard of whether it has discharged its power of review, so that "right and justice will prevail."
There was a time when this Court hid under the "political question" doctrine and evaded constitutional and moral responsibility for the long period of suppression of the people's basic rights. Rightly so, that same Court, after the repudiation by our people of the Marcos regime in 1986, likewise repudiated the acts of the majority of the Court during Martial Law.
This Court cannot afford to retrogress and make the same mistakes as those made by its predecessor courts during Martial Law. To do so would possibly merit the same kind of condemnation that former President Marcos reaped in the fullness of time.
Is the preference for the protection of human rights encoded in the legal DNA of the Constitution?
There is no question that the importance given to human rights is encoded in the very building blocks of the Philippine Constitution. For the Constitution to make sense, the Supreme Court has to recognize that it is programmed to reject government actions that are contrary to the respect for human rights, and to uphold those that do.
The recognition of the hallowed place given to the protection of human rights has been tirelessly repeated by all the Justices who ever walked the halls of Padre Faura. Not one has said that it was unimportant; or that it should be sacrificed at the altar of something else - not economic progress, not even peace not even by those who saw when, why, and how Martial Law began and progressed.
Former Chief Justice Reynato Puno has said:
The sole purpose of government is to promote, protect and preserve these [human] rights. And when govermnent not only defaults in its duty but itself violates the very rights it was established to protect, it forfeits its authority to demand obedience of the governed and could be replaced with one to which the people consent. The Filipino people exercised this highest of rights in the EDSA Revolution of February 1986.[13]Chief Justice Puno unequivocably repudiated the "ends-justifies-means" mantra of Martial Law when he catapulted the rights that Marcos trampled upon to the highest pinnacle of government priorities, and when as Chief Justice he made as his tenure's flagship the promulgation of the extraordinary and novel human rights writs of amparo and habeas data.
If it is true that when the Government itself violates the very rights it was established to protect, that violation forfeits its right to govern, then it becomes necessary for this Court to reject any governmental attempt that encourages the degradation of those rights. For this Court guards not only against clear and direct violations of the Constitution, but also against actions that lead this country and its rulers to a slippery slope that threatens to hurl its people to the abyss of helpless unprotectedness.
Contrary to the thesis of my esteemed colleague Justice Diosdado Peralta, the constitutional provisions guaranteeing the protection of human rights are not inert, coming to life only when there is a specific law that would make these rights accessible in specific cases. Each right that is sought to be protected by the Constitution acts as a prohibition against the Government's derogation of those rights. Not all of the rights guaranteed by the Constitution direct the commission of positive acts. Yet these rights can, under the right circumstances, be invoked either singly or collectively to bar public officers from performing certain acts that denigrate those rights.
Summary of the arguments on the substantive issues
Credit must be given to the Solicitor General for immediately agreeing that the Constitution, decisions of this Court, human right statutes and the ill-gotten wealth laws and proceedings - in their totality - condemn the Martial Law regime of the late President Marcos, his family and his cronies.[14] Nevertheless, he posits that all of these are in the past; human rights victims are to be compensated, anyway; and the recovery of ill-gotten wealth would continue, including the pursuit of criminal cases against the Marcos family and their cronies. In other words, while he admits that it would be most difficult to make former President Marcos out as a hero, considering the latter's martial rule and recorded plunder, nevertheless, Marcos was a bemedalled war soldier, and that, in addition, his being a former President who was never dishonorably discharged as a soldier - this fact alone - entitles him to be interred at the LMB. To the Solicitor General, it is non sequitur for human rights victims to claim that the burial of Marcos at a cemetery called Libingan ng mga Bayani will entomb him as a hero and negate the plethora of legal pronouncements that he is not.
The candid admission made by the Solicitor General has made the job of this Court much easier. For the substantive issue now boils down to whether, in fact and in law, the proposed burial of the late President Marcos at the LMB
(1) | will derogate from the state's duty to protect and promote human rights under the Constitution, domestic statutes, and international law; |
(2) | will violate Presidential Decree No. 105, and Republic Act Nos. 10066, 10086 and 289; |
(3) | is an unconstitutional devotion of public property to a private purpose; |
(4) | is an illegal use of public funds; |
(5) | cannot be sourced from the residual powers of the President or his powers to reserve lands for public purposes; |
(6) | cannot find legal mooring in AFP Regulation G 161-375; |
(7) | is in violation of the clause on faithful execution of the laws |
and thus the proposed burial is unconstitutional and illegal, and the presidential discretion sought to be exercised is being committed in grave abuse of discretion.
On the procedural points, this Opinion fully agrees with the Dissenting Opinion of Justice Alfredo Benjamin S. Caguioa, Jr., but will nevertheless, attempt to augment what has been so ably discussed by Justice Caguioa on the political question defense.
On the substantive points, I fully agree with Justice Caguioa, whose Dissenting Opinion had first been proposed as the main decision. I had prepared this Opinion to elucidate my independent understanding of some of the issues he has covered.
THE COURT HAS THE AUTHORITY TO RESOLVE THIS CONTROVERSY UNDER THE EXPANDED CONCEPT OF JUDICIAL REVIEW IN THE 1987 CONSTITUTION.
Respondents contend that the issue in this case is a matter within the discretion of the Executive and must consequently be considered beyond our power of judicial review.
As will be further discussed, this Court cannot refuse to review an issue simply because it is alleged to be a political question. That train has departed a long time ago. Prevailing jurisprudence is a generation apart from the former usefulness of the political question doctrine as a bar to judicial review. The reason for that departure - Philippine Martial Law experience.
A. With the advent of the 1987 Constitution, respondents can no longer utilize the traditional political question doctrine to impede the power of judicial review.
The 1987 Constitution has expanded the concept of judicial review[15] by expressly providing in Section 1, Article VIII, as follows:
Section 1. The Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.The above provision delineates judicial power and engraves, for the first time, the so-called expanded certiorari jurisdiction of the Supreme Court.[16]
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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.
The first part of the provision represents the traditional concept of judicial power involving the settlement of conflicting rights as conferred by law. The second part represents the expansion of judicial power to enable the courts of justice to review what was before forbidden territory; that is, the discretion of the political departments of the govemment.[17]
As worded, the new provision vests in the judiciary, particularly in the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature, as well as to declare their acts invalid for lack or excess of jurisdiction, should they be tainted with grave abuse of discretion.[18]
The deliberations of the 1986 Constitutional Commission provide the nature and rationale of this expansion of judicial power. In his Sponsorship Speech, former Chief Justice and Constitutional Commissioner Roberto R. Concepcion stated:
The first section starts with a sentence copied from former Constitutions. It says:The expansion of judicial power resulted in constricting the reach of the political question doctrine.[20] Marcos v. Manglapus[21] was the first case that squarely dealt with the issue of the scope of judicial power vis-a-vis the political question doctrine under the 1987 Constitution. In that case, the Court explained:The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime....
x x x x
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the govermnent as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.[19] (Emphasis supplied)
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide.The prerogative of the Court to review cases in order to determine the existence of grave abuse of discretion was further clarified in Estrada v. Desierto:[23]
x x x x
x x x When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide.[22]
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also 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 government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing.[24] (Citations omitted and emphasis supplied)Notably, the present Constitution has not only vested the judiciary with the right to exercise judicial power, but made it a duty to proceed therewith - a duty that cannot be abandoned "by the mere specter of this creature called the political question doctrine."[25] This duty must be exercised "to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions."[26]
Chief Justice Concepcion had emphatically explained to the 1986 Constitutional Commission that the Supreme Court, which he had been a part of, used the political question theory to avoid reviewing acts of the President during Martial Law, and thus enabled the violation of the rights of the people. In his words:
It [referring to the refusal of the Supreme Court to review] did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime.[27]The question I now pose to my colleagues in the Majority: "Are we not, by refusing to pass upon the question of the effects of the Marcos burial at the LMB, encouraging authoritarianism, plunder, and the violation of human rights, by signaling that what Marcos and his Martial Rule represents is not anathema?"
B. In the exercise of its expanded judicial power, the Court has decided issues that were traditionally considered political questions.
Following the effectivity of the present Constitution, only a select number of issues continue to be recognized by the Court as truly political and thus beyond its power of review. These issues include the executive's determination by the executive of sovereign or diplomatic immunity,[28] its espousal of the claims of its nationals against a foreign government,[29] and the electorate's expression of confidence in an incumbent official.[30]
Apart from these matters, all other acts of government have been the subject of the expanded certiorari jurisdiction of the Court under Article VIII, Section II of the Constitution. As demonstrated in the following cases, the Court has reviewed the acts of the President, the Senate, the House of Representatives, and even of independent bodies such as the electoral tribunals and the Commission on Elections, even for acts that were traditionally considered political.
Acts of the President
The Court in Marcos v. Manglapus[31] ascertained the validity of the President's determination that the return of the Marcoses posed a serious threat to the national interest and welfare, as well as the validity of the prohibition on their return. As previously stated, the political question doctrine was first invoked and then rejected by the Court in that case in view of its expanded power of judicial review under the 1987 Constitution.
The Court then reviewed the constitutionality of a presidential veto in Gonzales v. Macaraig, Jr.[32] It ruled that "the political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court."
The expanded power of judicial review was likewise utilized to examine the grant by the President of clemency in administrative cases;[33] and the President's power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion.[34] The Court even tackled the legitimacy of the Arroyo administration in Estrada v. Desierto.[35] Although it resolved the question as a constitutional issue, the Court clarified that it would not defer its resolution based merely on the political question doctrine.
In David v. Macapagal-Arroyo,[36] it was the validity of then President Arroyo's declaration of national emergency that was assailed before the Court. Significantly, it reviewed the issue even while it recognized that the matter was solely vested in the wisdom of the executive:
While the Court considered the President's "calling-out" power as a discretionary power solely vested in his wisdom, it stressed that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. This ruling is mainly a result of the Court's reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only "to settle actual controversies involving rights which are legally demandable and enforceable," but also "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."[37] (Citations omitted)In Biraogo v. Philippine Truth Commission of 2010,[38] even the President's creation of a Truth Commission was reviewed by the Court. As will be further explained, the fact that the commission was created to implement a campaign promise did not prevent the Court from examining the issue.
Acts of the Legislature
The Court has likewise exercised its expanded power of judicial review in relation to actions of Congress and its related bodies. In Daza v. Singson,[39] it reviewed the manner or legality of the organization of the Commission on Appointments by the House of Representatives. While the review was premised on the fact that the question involved was legal and not political, the Court nevertheless held that "even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question."
In later cases, the Court rejected the political question doctrine and proceeded to look into the following political acts of the legislature: (a) the decision of the House of Representatives to allow the dominant political party to change its representative in the House Electoral Tribunal;[40] (b) the decision of the Senate Blue Ribbon Committee to require the petitioners to testify and produce evidence at its inquiry;[41] (c) the propriety of permitting logging in the country;[42] (d) the validity of the filing of a second impeachment complaint with the House ofRepresentatives;[43] (d) the validity of an investigation conducted in aid of legislation by certain Senate committees;[44] and (e) the decision of the House of Representatives Committee on Justice to take cognizance of two impeachment complaints.[45]
We also exercised our constitutional duty "to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction"[46] on the part of the Senate when it ratified the WTO Agreement and the three Annexes thereof in Tañada v. Angara.[47] The Court firmly emphasized in that case that "it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality, or department of the govemment."[48]
Latest Jurisprudence
The most recent jurisprudence in this area remains in line with the notion of expanded certiorari jurisdiction. The Court has been consistent in its rejection of the political question doctrine as a bar to its expanded power of review.
In 2013, the constitutionality of the pork barrel system was resolved in Belgica v. Ochoa.[49] While the Court clarified that the issue involved legal questions, it nonetheless rejected the invocation of the political question doctrine and upheld the expanded judicial powers of the Court.
In 2014, Araullo v. Aquino III[50] delved into the constitutionality of the Disbursement Acceleration Program of the executive department, again emphasizing the Court's expanded power of review.
In 2015, the Court in The Diocese of Bacolod v. Commission on Elections[51] rejected the application of the political question doctrine. It ruled that the right of the non-candidate petitioners to post the subject tarpaulin in their private property was an exercise of their right to free expression. In rejecting the COMELEC's political question defense, it held that "the concept of a political question.... never precludes judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective right."[52]
A few months after Diocese of Bacolod, the policy of the Judicial and Bar Council (JBC) requiring judges of first-level courts to render five years of service before they could qualify as applicants to second-level courts was assailed as unconstitutional in Villanueva v. Judicial and Bar Council.[53] The Court resolved the issue by stating "since the formulation of guidelines and criteria, including the policy that the petitioner now assails, is necessary and incidental to the exercise of the JBC's constitutional mandate, a determination must be made on whether the JBC has acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing and enforcing the said policy."[54]
Early this year, the Court in Saguisag v. Ochoa, Jr.,[55] determined the constitutionality of the Enhanced Defense Cooperation Agreement between the Republic of the Philippines and the United States of America. The Court affirmed therein its expanded jurisdiction:
The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power has been extended to the determination of whether in matters traditionally considered to be within the sphere of appreciation of another branch of government, an exercise of discretion has been attended with grave abuse. The expansion of this power has made the political question doctrine "no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review."[56] (Citations omitted)Notably, while there were instances when the Court deferred from interfering with an issue involving a political question, it did so not because political questions were involved but because of a finding that there was no grave abuse of discretion.[57] Otherwise stated, the Court still exercised its expanded judicial power, but found no reason to annul the questioned acts. It held in Defensor-Santiago v. Guingona, Jr.,[58] "the all-embracing and plenary power and duty of the Court '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' is restricted only by the definition and confines of the term 'grave abuse of discretion.'"
It is evident from this long line of cases that the Court can no longer refuse to adjudicate cases on the basis of the "political question doctrine." Whenever issues of a political nature are raised before it, it is the duty of the Court to meet the questions head-on for as long as grave abuse of discretion or constitutionality is seriously involved.
C. The assertion that the burial is intended to implement an election campaign promise does not render the matter non-justiciable.
In view of the above rulings of this Court, it is evident that we must resolve the present controversy, notwithstanding the allegation that the decision of the President to allow the burial is purely political in character. That the order was supposedly founded on an "election campaign promise" does not transform the matter into a political issue that is beyond our power to review.
In fact, in Biraogo v. Philippine Truth Commission of 2010,[59] the Court reviewed the validity of the creation of the Truth Commission, despite its recognition that the act was meant to implement a campaign promise made by then President Benigno Aquino III:
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and of his ability to carry out this noble objective, catapulted the good senator to the presidency.Even under those circumstances, however, the Court still decided the controversy and ultimately declared the creation of the Truth Commission unconstitutional. While I maintain my dissenting view because unknowable standards were imposed in that case, I believe that the Court correctly took cognizance of the dispute, notwithstanding the fact that a campaign promise was involved. There is no reason for the Court to deviate from that course in the present case.
To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate reported cases of graft and corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission).[60]
Having established the duty of the Court to review the assailed acts, it is now necessary to examine whether the decision of the President to allow the burial of former President Marcos at the LMB is consistent with the Constitution and the laws.
THE PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND IN VIOLATION OF HIS DUTY TO FAITHFULLY EXECUTE THE LAWS WHEN HE ORDERED THE BURIAL OF MARCOS IN THE LIBINGAN NG MGA BAYANI.
The 1987 Constitution mandates the president to ensure that laws are faithfully executed.[61] This duty of faithful execution circumscribes all the actions of the President as the Chief Executive. It also limits every exercise of his discretion. As this Court declared in Almario v. Executive Secretary:
Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic formulation, "discretion is not unconfined and vagrant" but "canalized within banks that keep it from overflowing." The President's power must be exercised in accordance with existing laws. Section 17, Article VII of the Constitution prescribes faithful execution of the laws by the President:In fulfilling this duty, the President is not only obligated to enforce the express terms of the Constitution or the statutes; he is likewise bound to implement any right, duty, or obligation inferable from these primary sources.[63] This rule finds support in Cunningham v. Neagle,[64] in which the United States Supreme Court suggested that the duty of the President to faithfully execute the law is not limited to the enforcement of the express terms of acts of Congress or of treaties, that duty extends to "all rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution."[65]Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.The President's discretion in the conferment of the Order of National Artists should be exercised in accordance with the duty to faithfully execute the relevant laws. The faithful execution clause is best construed as an obligation imposed on the President, not a separate grant of power. It simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws but is obliged to obey and execute them. This is precisely why the law provides that "[a]dministrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution."[62] (Citations omitted and emphasis supplied)
As a consequence of these principles, any act of the President that contravenes the law, its policies, or any right or duty inferable therefrom must be considered grave abuse of discretion.[66] By the same token, a refusal to execute the laws when necessary must be invalidated in the absence of any statutory justification.[67]
As will be demonstrated, the directive of President Duterte to allow the burial of Marcos at the LMB contravenes the constitution, laws, policies, and jurisprudence. Moreover, the basis for the directive was an invalid regulation issued by the Armed Forces of the Philippines (AFP) in excess of its statutory authority. Considering that the order was made in contravention of law, it cannot be justified by mere reference to the President's residual powers. Such act is tainted with grave abuse of discretion.
A. Statutes and jurisprudence establish a clear policy to condemn the acts of Marcos and what he represents, which effectively prohibits the incumbent President from honoring him through a burial in the Libingan ng mga Bayani.
It is the duty of the Court to give effect not only to the letter of the law, but more importantly to the spirit and the policy that animate it. In Alonzo v. Intermediate Appellate Court,[68] the Court explained:
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. x x xTo carry out this duty, the Court must examine not only the subject law itself, but the entire body of related laws including the Constitution, domestic statutes, administrative issuances and jurisprudence. It is only by taking a holistic view of the matter that the Court can ensure that its reading of the law is consistent with the spirit thereof. In Social Weather Stations, Inc. v. COMELEC,[70] we explained the importance of taking a holistic view when interpreting the law:The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read according to its spirit or intent. For what is within the spirit is within the statute although it is not within the letter thereof; and that which is within the letter but not within the spirit is not within the statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as within the letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of the lawmakers.[69]
Third, the assumption that there is, in all cases, a universal plain language is erroneous. In reality, universality and uniformity of meaning is a rarity. A contrary belief wrongly assumes that language is static.In this case, we are being asked to decide whether the President may validly order the burial of Former President Marcos in the LMB. The resolution of this question requires more than an examination of the text of AFP Regulations 161-375. More than finding a textual anchor, we are compelled by this issue to scrutinize the implications of the President's order and determine if it conflicts with the text, the policy, and the spirit of the law.
The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider context and the interplay of the historical, the contemporary, and even the envisioned. Judicial interpretation entails the convergence of social realities and social ideals. The latter are meant to be effected by the legal apparatus, chief of which is the bedrock of the prevailing legal order: the Constitution. Indeed, the word in the vernacular that describes the Constitution - saligan - demonstrates this imperative of constitutional primacy.
Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we consider not an abstruse provision but a stipulation that is part of the whole, i.e., the statute of which it is a part, that is aimed at realizing the ideal of fair elections. We consider not a cloistered provision but a norm that should have a present authoritative effect to achieve the ideals of those who currently read, depend on, and demand fealty from the Constitution.[71]
At its core, the present dispute turns on whether the state, through the President and the AFP, may legally honor Former President Marcos and his family. For that is the essence of the proposed burial at the LMB regardless of whether Marcos is to be buried as a hero, as a soldier or as a former president. A clear understanding of our Constitution, laws, jurisprudence, and our international obligations must lead to the conclusion that the grant of any such honors for the late dictator is prohibited.
Setting aside the validity of AFP Regulations 161-375 for the moment, their blind application to the present case would be an egregious mistake. Considering that various laws and jurisprudence reveal the clear policy of the state to denounce both former President Marcos and the Martial Law regime, it would be inappropriate, if not absurd, for the state to honor his memory.
1. Marcos is perpetuated as a plunderer and a perpetrator of human rights violations in our organic and statutory laws.
As soon as the EDSA Revolution succeeded in 1986, the revolutionary government - installed by the direct exercise of the power of the Filipino people[72] - declared its objective to immediately recover the ill-gotten wealth amassed by Marcos, his family, and his cronies. The importance of this endeavor is evident in the fact that it was specifically identified in the 1986 Provisional Constitution as part of the mandate of the people. Article II, Section 1 of that Constitution states:
SECTION 1. Until a legislature is elected and convened under a New Constitution, the President shall continue to exercise legislative power.
The President shall give priority to measures to achieve the mandate of the people to:x x x xd) Recover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the people through orders of sequestration or freezing of assets of accounts;
a) | Executive Order No. 1[73] created the Presidential Commission on Good Government (PCGG) tasked to, among others, assist the President in the "recovery of all ill-gotten wealth accumulated by former President Marcos, his immediate family, relatives, subordinates and close associates x x x by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship."[74] |
b) | Executive Order No. 2[75] authorized the freezing and sequestration of assets pertaining to Marcos, his relatives, associates, dummies, agents or nominees, which had been "acquired by them directly or indirectly, through or as a result of the improper or illegal use of funds or properties owned by the Government of the Philippines;"[76] or "by taking undue advantage of their office, authority, influence, connections or relationship."[77] |
c) | Executive Order No. 14[78] empowered the PCGG to file and prosecute all cases it had investigated pursuant to Executive Order Nos. 1 and 2. |
All three executive orders affirmed that Marcos, his relatives and supporters had acquired assets and properties through the improper or illegal use of government funds or properties by taking undue advantage of their office, authority, influence, or connections. These acts were proclaimed to have caused "grave damage and prejudice to the Filipino people and the Republic of the Philippines."[79]
The gravity of the offenses committed by former President Marcos and his supporters even prompted the Court to describe the mandate of the PCGG as the recovery of "the tremendous wealth plundered from the people by the past regime in the most execrable thievery perpetrated in all history."[80] The importance of this mandate was further underscored by the sovereign Filipino people when they ratified the 1987 Constitution, including the following provision:
Apart from being declared a plunderer, Marcos has likewise been pronounced by the legislature as a perpetrator of human rights violations. In Republic Act No. (R.A.) 10368, the state recognized the following facts:ARTICLE XVIII
Transitory Provisions
SECTION 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.
a) | Human rights violations were committed during the Martial Law period "from September 21, 1972 to February 25, 1986 by persons acting in an official capacity and/or agents of the State;"[81] and |
b) | A number of these human rights violations occurred because of decrees, declarations or issuances made by Marcos;[82] and by "acts of force, intimidation or deceit"[83] done by him, his spouse, Imelda Marcos, and their immediate relatives by consanguinity or affinity, associates, cronies and subordinates.[84] |
Because of the human rights violations perpetrated by Marcos and his associates, the legislature has decreed that victims are entitled to both monetary[85] and non-monetary[86] reparations to be principally sourced from the funds transferred to the Philippine government by virtue of the Order of the Swiss Federal Supreme Court.[87] Those funds were earlier declared part of the ill-gotten wealth of the Marcos family and forfeited in favor of the Philippine government.
The statements in the above laws were clear indictments by both the revolutionary government and the legislature against the massive plunder and the countless abuses committed by Marcos and his cronies during his tenure as President. These laws not only condemn him as a thief; they equally recognize his criminal liability for the atrocities inflicted on innumerable victims while he was in power.
2. Decisions of this Court have denounced the abuses committed by Marcos during the Martial Law dictatorship.
Apart from earning the condemnation of the legislature, Marcos and the Martial Law regime have likewise received harsh criticism from this Court. In dozens of decisions, it denounced the abuses he had committed; the pernicious effects of his dictatorship; and the grave damage inflicted upon the nation by his corruption, thievery, and contempt for human rights. Foremost among these denunciations are found in are four cases ordering the forfeiture of the ill-gotten wealth he amassed with the assistance of his relatives and cronies.
In Republic v. Sandiganbayan,[88] the Court forfeited a total of USD
658 million in favor of the government. These funds, contained in Swiss deposit accounts in the name of certain foundations, were declared ill-gotten, as they were manifestly out of proportion to the known lawful income of the Marcos family. The Court used the same reasoning in Marcos, Jr. v. Republic[89] to justify the forfeiture of the assets of Arelma, S.A., valued at USD 3,369,975 in 1983.
On the other hand, in Republic v. Estate of Hans Menzi[90] and in Yuchengco v. Sandiganbayan,[91] the Court scrutinized the beneficial ownership of certain shares of Bulletin Publishing Corporation and Philippine Telecommunications Investment Corporation, respectively. The Court concluded in the two cases that the shares, although registered in the names of cronies and nominees of Marcos, were part of the ill-gotten wealth of the dictator and were subject to forfeiture.
It must be emphasized that in the preceding cases, the Court noted the grand schemes employed by Marcos and his supporters to unlawfully amass wealth and to conceal their transgressions. In Yuchengco, it declared:
In PCGG v. Peña, this Court, describing the rule of Marcos as a "well-entrenched plundering regime" of twenty years, noted the "magnitude of the past regime's 'organized pillage' and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market." The evidence presented in this case reveals one more instance of this grand scheme. This Court - guardian of the high standards and noble traditions of the legal profession - has thus before it an opportunity to undo[,] even if only to a certain extent, the damage that has been done.[92] (citations omitted)In addition to the plunder of the public coffers, Marcos was harshly condemned by this Court for the human rights abuses committed during the Martial Law period.[93] In Mijares v. Ranada, et al.,[94] it stated:
Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bitter crop. While the restoration of freedom and the fundamental structures and processes of democracy have been much lauded, according to a significant number, the changes, however, have not sufficiently healed the colossal damage wrought under the oppressive conditions of the martial law period. The cries of justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of reparations due within the confines of the restored rule of law.Marcos himself was severely criticized for abuses he had personally committed while in power. For instance, he was found to have unlawfully exercised his authority for personal gain in the following cases: (a) Tabuena v. Sandiganbayan,[96] in which he ordered the general manager of the Manila International Airport Authority to directly remit to the Office of the President the amount owed by the agency to the Philippine National Construction Corporation; (b) Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,[97] in which Marcos made a marginal note prohibiting the foreclosure of the mortgaged assets of Mindanao Coconut Oil Mills and waiving the liabilities of the corporation and its owners to the National Investment and Development Corporation; and (c) Republic v. Tuvera,[98] in which Marcos himself granted a Timber License Agreement to a company owned by the son of his longtime aide, in violation of the Forestry Reform Code and Forestry Administrative Order No. 11.
The petitioners in this case are prominent victims of human rights violations who, deprived of the opportunity to directly confront the man who once held absolute rule over this country, have chosen to do battle instead with the earthly representative, his estate.[95] (Emphasis supplied)
Marcos was likewise deemed personally responsible for the corruption of the judicial process in Galman v. Sandiganbayan.[99] Affirming the findings of a commission created to receive evidence on the case, the Court stated:
The Court adopts and approves the Report and its findings and holds on the basis thereof and of the evidence received and appreciated by the Commission and duly supported by the facts of public record and knowledge set forth above and hereinafter, that the then President (code named Olympus) had stage managed in and from Malacanang Palace "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist", and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also pre-determined the final outcome of the case of total absolution of the twenty-six respondents accused of all criminal and civil liability.Because of the abuses committed, the Court condemned the Marcos years as a "dark chapter in our history,"[101] a period of "national trauma"[102] dominated by a "well-entrenched plundering regime,"[103] which brought about "colossal damage wrought under the oppressive conditions of the Martial Law period."[104] The attempt by the dictator to return to the country after the EDSA Revolution was even described by the Court as "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."[105]
x x x x
The record shows suffocatingly that from beginning to end, the then President used, or more precisely, misused the overwhelming resources of the government and his authoritarian powers to corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. x x x
Indeed, the secret Malacañang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the predetermined ignominious final outcome are without parallel and precedent in our annals and jurisprudence.[100] (Emphasis supplied)
The foregoing pronouncements are considered part of the legal system of the Philippines[106] and must be considered binding, since they are integral parts of final and immutable judgments. It may be presumed that the Court made the above declarations only after a judicious consideration of the evidence and the applicable law. Consequently, those declarations cannot be questioned, reversed, or disregarded without running afoul of the doctrine of immutability of judgment. This doctrine of finality of judgments applies even to the highest court of the land.[107]
The claim that judgment has not been rendered against Marcos for the plunder and the atrocities committed under his regime is belied by the declarations of this very Court. In his Separate Opinion in Olaguer v. Military Commission No. 34,[108] former Chief Justice Claudio Teehankee wrote of our nation's history during the Martial Law regime, and it would be well to recall his words:
It was a long and horrible nightmare when our people's rights, freedoms and liberties were sacrificed at the altar of "national security" even though it involved nothing more than the President-dictator's perpetuation in office and the security of his relatives and some officials in high positions and their protection from public accountability of their acts of venality and deception in government, many of which were of public knowledge.The pronouncements of the Court on this matter must be respected and considered conclusive. Hence, while Marcos may have evaded a criminal proceeding by choosing to go on exile after the EDSA Revolution, the atrocities committed against the Filipino people during his regime must be remembered. Our declarations on this matter cannot be disregarded or forgotten, as Chief Justice Teehankee reminded us in Olaguer:
x x x x
The treacherous assassination on August 21, 1983 of the martyred Benigno S. Aquino, Jr., within minutes of his arrival at the Manila International Airport, although ringed with 2,000 soldiers, shocked and outraged the conscience of the nation. After three years of exile following almost eight years of detention since martial law, Aquino, although facing the military commission's predetermined death sentence, supra, yet refused proper travel documents, was returning home "to strive for genuine national reconciliation founded on justice." The late Senator Jose W. Diokno who passed away this year was among the first victims of the martial law coup d'etat to be locked up with Senator Aquino. In March, 1973, all of their personal effects, including their eyeglasses were ominously returned to their homes. Their wives' visitation privileges were suspended and they lost all contact for over a month. It turned out that Aquino had smuggled out of his cell a written statement critical of the martial law regime. In swift retribution, both of them were flown out blindfolded to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in dark boarded cells with hardly any ventilation. When their persons were produced before the Court on habeas corpus proceedings, they were a pitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to be released in September, 1974 after almost two years of detention. No charges of any kind were ever filed against him. His only fault was that he was a possible rival for the presidency.
Horacia Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the Development Academy of the Philippines, was among the hard-working government functionaries who had been radicalized and gave up their government positions. Morales went underground on the night he was supposed to receive his TOYM award, declaring that "(F)or almost ten years, I have been an official in the reactionary government, serviced the Marcos dictatorship and all that it stands for, serving a ruling system that has brought so much suffering and misery to the broad masses of the Filipino people. (I) refuse to take any more part of this. I have had enough of this regime's tyranny and treachery, greed and brutality, exploitation and oppression of the people," and "(I)n rejecting my position and part in the reactionary government, I am glad to be finally free of being a servant of foreign and local vested interest. I am happy to be fighting side by side with the people." He was apprehended in 1982 and was charged with the capital crime of subversion, until he was freed in March, 1986 after President Corazon C. Aquino's assumption of office, together with other political prisoners and detainees and prisoners of conscience in fulfillment of her campaign pledge.
Countless others forfeited their lives and stand as witnesses to the tyranny and repression of the past regime. Driven by their dreams to free our motherland from poverty, oppression, iniquity and injustice, many of our youthful leaders were to make the supreme sacrifice. To mention a few: U.P. Collegian editor Abraham Sarmiento, Jr., worthy son of an illustrious member of the Court pricked the conscience of many as he asked on the front page of the college paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo kikilos? Kung hindi ngayon, kailan pa? He was locked up in the military camp and released only when he was near death from a severe attack of asthma, to which he succumbed. Another TOYM awardee, Edgar Jopson, an outstanding honor student at the Ateneo University, instinctively pinpointed the gut issue in 1971 he pressed for a "non-partisan Constitutional Convention;" and demanded that the then president-soon-to-turn dictator "put down in writing" that he was not going to manipulate the Constitution to remove his disqualification to run for a third term or perpetuate himself in office and was called down as "son of a grocer." When as he feared, martial law was declared, Jopson went underground to continue the struggle and was to be waylaid and killed at the age of 34 by 21 military troops as the reported head of the rebel movement in Mindanao. Another activist honor student leader, Emmanuel Yap, son of another eminent member of the Court, was to disappear on Valentine's Day in 1976 at the young age of 24, reportedly picked up by military agents in front of Channel 7 in Quezon City, and never to be seen again.
One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor of the province of Antique at 28, a Harvard-trained lawyer, was mercilessly gunned down with impunity in broad daylight at 10 a.m. in front of the provincial capitol building by six mad-dog killers who riddled his body with 24 bullets fired from M-16 armalite rifles (the standard heavy automatic weapon of our military). He was just taking a breather and stretching his legs from the tedious but tense proceedings of the canvassing of the returns of the presidential snap election in the capitol building. This was to be the last straw and the bloodless EDSA revolt was soon to unfold. The Court in Javier vs. Comelec, through Mr. Justice Cruz, said these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, swifter than eagles and stronger than lions.[109] (Citations omitted)
The greatest threat to freedom is the shortness of human memory. We must note here the unforgettable and noble sacrifices of the countless brave and patriotic men and women who feel as martyrs and victims during the long dark years of the deposed regime. In vacating the death sentence imposed on the petitioners who survived the holocaust, we render them simple justice and we redeem and honor the memory of those who selflessly offered their lives for the restoration of truth, decency, justice and freedom in our beloved land.[110] (Emphasis supplied)3. The President may not contradict or render ineffective the denunciations, or the policies and principles enunciated in the foregoing statutes and jurisprudence.
It is the obligation of the President to give effect to the pronouncements of the Legislature and the Judiciary as part of his duty to faithfully execute the laws. At the very least, the President cannot authorize an act that runs counter to the letter and the spirit of the law.
In this case, the foregoing statutes and jurisprudence condemning Marcos and his regime effectively prohibit the incumbent President from granting him any form of tribute or honor. The President's discretion in this matter is not unfettered. Contrary to the assertions of respondents, the President cannot arbitrarily and whimsically decide that the acts attributed to Marcos during Martial Law are irrelevant, solely because "he possessed the title to the presidency until his eventual ouster from office."[111]
Indeed, it would be the height of absurdity for the Executive branch to insist on paying tribute to an individual who has been condemned by the two other branches of government as a dictator, a plunderer, and a human rights violator. Whether Marcos is to be buried in the LMB as a hero, soldier, or former President is of little difference. The most important fact is that the burial would accord him honor. For the Court to pretend otherwise is to sustain a delusion, as this controversy would not have arisen if not for this reality.
A state of affairs that would allow Marcos to reap any accolade or tribute from the state using public funds and property would obviously contradict the laws and judicial findings described above. Clearly, there is more than sufficient basis to reject the proposed burial.
B. The AFP does not have the power to determine which persons are qualified for interment in the Libingan.
The argument of respondents that the burial is permitted under AFP Regulations 161-375 is unavailing, as the AFP does not have the authority to select which persons are qualified to be buried in the LMB. For this reason, the enumeration contained in AFP Regulations 161-375 must be deemed invalid.
In Proclamation No. 208,[112] then President Marcos reserved a certain parcel of land in Taguig the proposed site of the LMB for "national shrine purposes." This parcel of land was placed "under the administration" of the National Shrines Commission (NSC). The NSC was later transferred to the Department of National Defense (from the Department of Education) and then abolished through the Integrated Reorganization Plan. The functions of the former NSC were then transferred to the National Historical Institute (NHI).
On 26 January 1977, Presidential Decree No. (P.D.) 1076[113] created the Philippine Veterans Affairs Office (PVAO) under the Department of National Defense. The PVAO was tasked to, among others, "administer, maintain and develop military memorials and battle monuments proclaimed as national shrines." P.D. 1076 also abo1ished the NHI and transferred its functions to the PVAO. The transferred functions pertained to military memorials, including the authority to "administer" the LMB.
The authority of the PVAO to administer, maintain and develop the LMB pertains purely to the management and care of the cemetery. Its power does not extend to the determination of which persons are entitled to be buried there. This authority pertains to Congress, because the power to deal with public property, including the right to specify the purposes for which the property may be used, is legislative in character.[114] Accordingly, the provision in AFP Regulations 161-375 enumerating the persons qualified to be interred in the LMB cannot bind this Court.
At any rate, the AFP Regulations cannot be considered in isolation. As part of the legal system, administrative issuances must be interpreted and implemented in a manner consistent with statutes, jurisprudence, and other rules.[115] In the same manner, the purported discretion of the President to determine the persons who may be interred in the LMB must be considered limited by statutes and judicial decisions.[116]
Since the proposed interment of Marcos in the LMB runs counter to law as explained in the preceding section, AFP Regulations 161-375 must be interpreted to mean that Marcos is specifically disqualified from being buried in that cemetery. Only by adhering to this interpretation can the Court ensure that the issuance is in harmony with other existing laws. Consequently, we cannot choose to implement AFP Regulations 161-375 exclusively while disregarding the statutes and jurisprudence referred to above.
C. The burial cannot be justified by mere reference to the President's residual powers; it is not unfettered, and such power can only be exercised in conformity with the entire Constitution.
During the oral arguments, respondents attempted to justify the decision of the President to allow the burial primarily on the basis of his residual power.[117] Citing Marcos v. Manglapus[118] and Sanlakas v. Executive Secretary,[119] they argued that the President is vested with powers other than those enumerated in the Constitution and statutes, and that these powers are implicit in the duty to safeguard and protect the general welfare.[120]
It must be emphasized that the statement in Marcos v. Manglapus acknowledging the "President's residual power to protect the general welfare of the people" was not unconditional. The Court, in fact, explicitly stated that only acts "not forbidden" by the Constitution or the laws were permitted under this concept:
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. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see Hyman,The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President].[121] (Emphasis supplied)The Court in that case also reiterated the underlying principles that must guide the exercise of presidential functions and powers, residual or otherwise:
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.[122] (Emphasis supplied)Clearly, the residual power of the President cannot be used to justify acts that are contrary to the Constitution and the laws. To allow him to exercise his powers in disregard of the law would be to grant him unbridled authority in the guise of inherent power. Clearly, that could not have been the extent of the residual powers contemplated by the Court in Marcos v. Manglapus.
To reiterate, the President is not above the laws but is, in fact, obliged to obey and execute them.[123] This obligation is even more paramount in this case because of historical considerations and the nature of the norms involved, i.e., peremptory nonns of human rights that are enshrined both in domestic and intetnational law.
TO ALLOW MARCOS TO BE BURIED IN THE LIBINGAN NG MGA BAYANI WOULD VIOLATE INTERNATIONAL HUMAN RIGHTS LAW AS AN INDEPENDENT SOURCE OF STATE OBLIGATIONS, AND WOULD NEGATE THE REMEDIES PROVIDED BY REPUBLIC ACT NO. 10368.
An examination of the vast body of international human rights law establishes a duty on the part of the state to provide the victims of human rights violations during the Marcos regime a range of effective remedies and reparations. This obligation is founded on the state's duty to ensure respect for, and to protect and fulfill those rights.
Allowing the proposed burial of Marcos in the LMB would be a clear violation of the foregoing international law obligations. Consequently, the planned interment must be enjoined in light of Article II, Section II of the Constitution, the established principle of pacta sunt servanda, and the fact that the state has already acknowledged these duties and incorporated them in our domestic laws.
A. Under international law, the Philippines is obligated to provide effective remedies, including holistic reparations, to human rights victims.
The obligation of the Philippines to respect, protect, and fulfill human rights has its legal basis in international agreements and customary international law. As will be discussed, this obligation includes the duty to provide effective remedies, which, in turn, incorporates the grant of holistic reparations to victims of human rights violations.
1. The Philippines is bound to respect, protect, and fulfill human rights under its treaty obligations and customary international law.
As a party to the United Nations (UN) Charter[124] and the International Covenant on Civil and Political Rights (ICCPR),[125] the Philippines is bound to comply in good faith with our obligations therein pursuant to the principle of pacta sunt servanda.[126] These treaties form the normative foundation of the duty of the state to provide effective remedies and reparations to victims of human rights violations.
The promotion, protection and fulfilment of human rights norms are obligations woven throughout the entire UN Charter, beginning with the Preamble which "reaffirm[s] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small."[127] In line with this statement, the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion"[128] was identified as one of the basic purposes of the United Nations.[129] These principles became part of a concrete obligation via Article 56 of the Charter, as states were mandated to take joint and separate action in cooperation with the UN for the achievement of its purposes.[130]
On the other hand, the ICCPR obligates states parties to respect and ensure the human rights of all individuals within its territory. Article 2(1) of this covenant provides:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.Interpreting this provision, the United Nations Human Rights Committee[131] (UNHRC) issued General Comment No. 31[132] declaring that the obligation in Article 2(1) is owed not just to individuals as the rights holders under the ICCPR, but to every state party therein.[133] The duty to respect basic human rights is likewise considered an erga omnes obligation in view of the importance of the rights involved.[134] In other words, it is an obligation towards the international community as a whole.[135]
Further establishing the obligation to respect human rights is the Universal Declaration of Human Rights (UDHR) which defines and codifies human rights norms provided for in the UN Charter. Considered the most important human rights document in the world,[136] the UDHR enumerates the human rights that states are bound to respect, including the right to life, liberty, and security of persons;[137] the prohibition against torture and arbitrary arrest or detention;[138] and the right to freedom from interference with one's privacy, family, home, or correspondence.[139] While not a legally binding treaty, the UDHR is generally considered a codification of the customary international law on human rights.[140] Hence, it binds all nations including the Philippines.
The foregoing instruments clearly create rights that every state is obliged to recognize and respect. To give effect to these entitlements, a violation of protected rights brings about the obligation on the part of the offending state to provide a corresponding remedy.
2. The duty to respect, protect, and fulfill human rights includes the obligation to provide an effective remedy.
The international guarantee of a remedy for human rights violations is well established[141] as one of the bedrock principles of contemporary international human rights law.[142] Ubi ius ibi remedium - "where there is a right, there is a remedy."[143] It is settled that gross human rights violations give rise to a right to remedy for victims, which in turn implies a duty on the part of states to provide the same.[144] This obligation is based on the principle that failure to provide an adequate remedy for violations renders the duty to respect the rights involved meaningless and illusory.[145]
Under Treaties
International human rights law instruments, both global and regional, impose upon states the duty not merely to offer a remedy, but also to ensure that the remedy provided is "effective." This rule is clearly demonstrated in the provisions discussed below.
It is an accepted principle that "[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."[146] This rule is further developed in Article 2 of the ICCPR, which provides:
3. Each State Party to the present Covenant undertakes:Explaining the nature of the obligations imposed by this provision, the UNHRC stated that the grant of reparations to individual victims is a central component of this legal obligation.[148]
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.[147]
A similar guarantee of effective remedies is included in the Convention on the Elimination of Racial Discrimination (CERD),[149] while the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture)[150] refers to an equivalent right in the form of redress and compensation.[151] This right to redress was clarified in General Comment No. 3[152] of the UN Committee Against Torture (UNCAT) as a comprehensive reparative concept, which embraces both "effective remedy" and "reparation." Redress "entails restitution, compensation, rehabilitation, satisfaction and guarantees of nonrepetition and refers to the full scope of measures required to redress violations under the Convention."[153] The committee also emphasized that reparative measures must take into account the particular needs of the victims and the gravity of the violations committed against them.[154]
Even regional instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms,[155] the American Convention on Human Rights,[156] and the Protocol to the African Charter,[157] provide for effective remedies for human rights violations.
Under Customary International Law
At the same time, customary international law, as discerned from the law of state responsibility and the progressive development of human rights treaty law, is further solidifying the legal basis of the right to remedy of victims of human rights violations.[158]
The Articles on the Responsibility of States for Internationally Wrongful Acts codified by the International Law Commission (ILC Articles) provides that state responsibility arising from an inte1nationally wrongful act[159] gives rise to the duty to make reparations. Under the ILC Articles, a state held liable for the breach of an obligation may be required to perform the following acts: (1) cessation of the violation,[160] (2) guarantee of non repetition,[161] and (3) full reparation for the injury caused.[162]
Because of the emergence of human rights in international law,[163] the duty to remedy a breach under the ILC Articles is deemed owed not only to the injured state as traditionally imagined, but also to individuals whose human rights have been impaired by the breach under a state's jurisdiction.[164] The right to effective remedies and just reparations for individual victims may be culled from the obligations of the state to cease violations, guarantee non-repetition and make full reparation.[165] This right is further affirmed by Article 33 of the ILC Articles, which declares that the obligation of the state to provide reparations is "without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State."[166]
To further substantiate the existence of a rule of customary international law on this matter, two declarations approved by the UNHRC and the UN General Assembly, respectively, may be cited.
The Declaration on the Protection of All Persons from Enforced Disappearance[167] issued by the UNHRC is a body of principles concerning enforced disappearances, including a provision for the right of victims of acts of enforced disappearance to adequate compensation and complete rehabilitation.[168]
On the other hand, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power[169] offers guidelines in relation to abuse of economic and political power. Through this declaration, the UN General Assembly recognized that millions of people suffer harm as a result of crime and abuse of power, and that these victims are entitled to prompt redress and access to the mechanisms of justice.[170]
These instruments and customary nonns of international human rights law clearly provide for the duty to grant effective remedies to a victim of violations. More than being an essential component of other substantive norms, they create a distinct obligation; hence, the failure to provide effective remedies is an additional and independent violation of internationally recognized human rights.[171]
Defining Effective Remedies
Because an exact definition of an effective remedy is not provided by the foregoing international instruments, it is necessary to examine the interpretations of authorized bodies, as well as the theory and practice of international courts, in order to determine the exact scope of the obligation.[172]
As the succeeding discussion will show, the duty to provide an "effective remedy" does not embrace a singular concept. Rather, that duty embodies a variety of measures more aptly referred to as holistic "reparations."
3. The obligation of the state to provide an effective remedy incorporates the duty to offer holistic reparations.
The right to effective remedy is comprised of two dimensions: procedural and substantive.[173] As explained by the UNCAT in General Comment No. 3:
The obligations of States parties to provide redress under Article 14 are two-fold: procedural and substantive. To satisfy their procedural obligations, States parties shall enact legislation and establish complaints mechanisms, investigation bodies and institutions, including independent judicial bodies, capable of determining the right to and awarding redress for a victim of torture and ill-treatment, and ensure that such mechanisms and bodies are effective and accessible to all victims. At the substantive level, States parties shall ensure that victims of torture or ill-treatment obtain full and effective redress and reparation, including compensation and the means for as full rehabilitation as possible.[174] (Emphasis supplied)In other words, the procedural dimension refers to the legal means by which alleged human rights violations are addressed by an impartial authority; the substantive dimension involves prompt and effective reparation for the harm suffered.[175]
The right to reparations is therefore but one side of an effective remedy, and is a crucial element in delivering justice to victims.[176] As such, the duty to provide reparations is as binding as the duty to provide effective remedies. This principle is clearly enunciated in international instruments, to the extent that it has achieved a non-derogable status.[177] As the International Criminal Court (ICC) in Prosecutor v. Thomas Lubanga Dyilo (Lubanga Case)[178] ratiocinated:
The Chamber accepts that the right to reparations is a well-established and basic human right, that is enshrined in universal and regional human rights treaties, and in other international instruments, including the UN Basic Principles; the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime; the Nairobi Declaration; the Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa; and the Paris Principles. These international instruments, as well as certain significant human rights reports, have provided guidance to the Chamber in establishing the present principles.[179] (Emphasis supplied)Understanding Reparations
The term reparation is derived from the word repair. Thus, it is often perceived as making of amends by providing recompense to persons who suffered loss or harm due to gross human rights violations.[180] Within the context of State responsibility, it pertains to a series of actions expressing the State's acknowledgment and acceptance of its responsibility in consequence of the gross violations. Reparation therefore denotes all types of redress for victims of human rights violations,[181] all seeking to make them whole again to the fullest extent possible. The Chorzow Factory case[182] decided by the Permanent Court of International Justice (PCIJ) in 1928 provides the leading definition of the concept:
Reparation must, as far as possible, wipe out all consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.[183]Reparation, as a means to provide redress for past violations, goes to the very heart of human protection. It has been recognized as a "vital process in the acknowledgment of the wrong done to the victim, and a key component in addressing the complex needs of victims in the aftermath of violations of international human rights and humanitarian law."[184] As explained by the Inter-American Commission of Human Rights (IACtHR) in its Report on the Implementation of the Justice and Peace Law:[185]
The [Inter-American Court of Human Rights] considers that, beyond the established legal system, the State has a key role and a primary responsibility to guarantee that victims of crimes against international law will have effective access under conditions of equality to measures of reparation, consistent with the standards of international law governing human rights. Access to reparations for victims of crimes against humanity must never be subject exclusively to determination of the criminal liability of the perpetrators, or the prior disposal of their personal goods, licit or illicit.[186]UN Reparations Principles
x x x x
The State must play a primary, rather than a secondary, role in guaranteeing victims' access to reparations in accordance with the standards of international law.[187]
The most important text dealing with the concept of reparations is the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN Reparations Principles).[188] This text is regarded as the international standard for the provision of reparations around the world.[189]
The UN Reparations Principles was the product of the work of Theodoor Van Boven, who was appointed in 1989 by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, to examine the possibility of developing basic principles and guidelines on remedies for gross violations.[190] Van Boven's work resulted in a landmark final report in 1993, also known as the Van Boven Principles, which declared that human rights violations give rise to a right of reparation for victims.[191] These principles attribute the State's duty to make such reparations to its obligation to afford remedies and ensure respect for human rights and fundamental freedoms.[192]
After 15 years of consideration, the UN General Assembly adopted the UN Reparations Principles on 16 December 2005[193] without a vote. While these principles are argued to be soft law, they are considered binding on states because they elucidate the basic standards applicable to reparations internationally and domestically.[194] The number of states in the UN General Assembly that accepted the resolution by consensus likewise indicates the authoritative weight of the principles, and signifies the status of these rules as part of emerging customary international law.[195]
It must be emphasized that the UN Reparations Principles is not a source of new commitments but rather a statement of existing obligations, as it expresses the content of international law on reparations to ensure that this is respected. This view was explicitly set out in the prefatory statement of the principles:
Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms x x x.[196]Therefore, the state obligation to provide reparations to victims of human right violations - as established in this text - takes its normative character from existing legal obligations under international human rights law. As declared in the Preamble[197] and Parts I[198] and II[199] of the UN Reparations Principles, the underlying framework of this document is grounded on the right to effective remedies enshrined in international human rights law.
"Adequate, effective and prompt reparation for harm suffered" is, in fact, a component of the remedies required to be accorded to victims of gross violations of international human rights law, and serious violations of international humanitarian law.[200] Elaborating on the purpose and scope of reparation, the UN Reparations Principles provides:
IX. Reparation for harm sufferedHolistic Approach to Reparations
15. Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.
x x x x
18. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Although the PCIJ in the Chorzow Factory case[201] declared that the ultimate goal of reparation is restitutio in integrum,[202] or the return of the victims to a situation prior to the unlawful conduct, it is acknowledged that human rights violations are impossible to rectify. As aptly stated by Special Rapporteur Van Boven in his final report:
It is obvious that gross violations of human rights and fundamental freedoms, particularly when they have been committed on a massive scale, are by their nature irreparable. In such instances any remedy or redress stands in no proportional relationship to the grave injury inflicted upon the victims. It is nevertheless an imperative norm of justice that the responsibility of the perpetrators be clearly established and that the rights of the victims be sustained to the fullest possible extent.[203] (Emphasis supplied)This view was seconded by Judge A.A. Cancado Trindade of the IACtHR in his Separate Opinion in Bulacio v. Argentina,[204] He opined "the harm cannot be erased. Instead, reparations for human rights violations only provide the victims the means to attenuate their suffering, making it less unbearable, perhaps bearable."[205]
These statements reflect the underlying idea that the reparations in the UN Reparations Principles are envisioned to extend beyond the pecuniary or material dimension. Rather, holistic reparation is the key. This conclusion is supported by Principles 19 to 23 of the UN Reparations Principles pertaining to the five forms of full and effective reparation:
19. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one's place of residence, restoration of employment and return of property.Clearly, aside from addressing the injuries suffered by victims through financial compensation, reparation also addresses a broader set of issues, through the prevention of future human rights violations. It addresses "democracy, good governance, and building an inclusive political community. Reparations includes recognition, acknowledgment of violations and state responsibility. It can contribute to structural transformation"[206] while also seeking to promote peace and reconciliation.[207] This holistic approach to reparation is followed in other human rights institutions like the UNCAT, the UNHRC, the ICC, the IACtHR and the European Court of Human Rights (ECHR).
20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:
21. Rehabilitation should include medical and psychological care as well as legal and social services.
22. Satisfaction should include, where applicable, any or all of the following:
23. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
General Comment No. 3 of the UNCAT emphasizes that "monetary compensation alone may not be sufficient redress for a victim of torture and ill-treatment. The Committee affirms that the provision of only monetary compensation is inadequate for a State party to comply with its obligations under article 14."[208] General Comment No. 31 of the UNHRC likewise notes that "where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations."[209]
The holistic approach was likewise applied by the ICC to the Lubanga Case,[210] in which it held that victims of war crimes, crimes against humanity, and genocide have a fundamental right to receive reparations. The trial chamber observed that reparations "go beyond the notion of punitive justice, towards a solution which is more inclusive, encourages participation and recognizes the need to provide effective remedies for victims."[211] It then explained that reparations must be applied in a broad and flexible manner, so as to allow it to approve the widest possible remedies for violations of the rights of the victims.[212]
In Blazek v. Czech Republic, the UNHRC declared that a remedy is only effective if it results in adequate measures of reparation granted to victims. It further provided that the approach must be holistic so as to put the needs and interests of the victim at the center of the process with the aim of restoring the latter's dignity.[213]
For its part, the IACtHR made it clear that as a principle of international law, every violation of an international obligation that results in harm creates a duty to make adequate reparation. In this respect, the Court ruled that reparation
consists in full restitution (restitutio in integrum), which includes the re establishment of the previous situation. If this is not feasible, as in most cases of human rights violations, the Court will determine measures to guarantee the rights that have been violated and to redress the consequences of the violations. Therefore, the Court has found it necessary to award different measures of reparation in order to redress the damage fully, so that, in addition to pecuniary compensation, measures of restitution, rehabilitation and satisfaction, and parantees of non-repetition, have special relevance to the harm caused.[214]It is noteworthy that the IACtHR has constantly addressed human rights violations of a widespread nature, which can be attributed to the authoritarian regimes and violent conflicts in Latin America during the 1970s and early 1980s.[215] Consequently, IACtHR rulings are particularly relevant to our discussion of the authoritarian Marcos regime.
Lastly, while the ECHR has awarded "just satisfaction" partaking of a pecuniary nature in most of its cases,[216] the intention to provide a holistic approach in providing effective satisfaction can be discerned in its Vagrancy Cases against the Belgian Government:
[I]f the victim, after exhausting in vain the domestic remedies before complaining at Strasbourg of a violation of his rights, were obliged to do so a second time before being able to obtain from the Court just satisfaction, the total length of the procedure instituted by the Convention would scarcely be in keeping with the idea of the effective protection of human rights. Such a requirement would lead to a situation incompatible with the aim and object of the Convention.[217]B. The burial would contravene the duty of the Philippines to provide reparations to victims of human rights violations during the Marcos regime.
x x x x
Nevertheless, the provisions of Article 50 which recognise the Court's competence to grant to the injured party a just satisfaction also cover the case where the impossibility of restitutio in integrum follows from the very nature of the injury; indeed common sense suggests that this must be so a fortiori.[218]
It is evident from the foregoing discussion that the Philippines is obligated to provide holistic reparations to victims of human rights violations during Martial Law. In fact, as discussed in the previous section, R.A. 10368 acknowledged the "moral and legal obligation [of the State] to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime."[219] As stated in the Explanatory Note of House Bill No. 54 - one of the progenitors of R.A. 10368 - this recognition was one of the main features of the law:
Among the important features of this bill are:The law also recognized the binding nature of the Decision of the US Federal District Court of Honolulu, Hawaii,[221] by creating a conclusive presumption that the claimants in the case against the Estate of Ferdinand Marcos were human rights violations victims.[222] In that case, compensatory and exemplary damages were awarded to (a) the class plaintiffs who were declared to have been tortured; or (b) the heirs and beneficiaries of those who were summarily executed, or who disappeared while in the custody of Philippine military or paramilitary groups.[223] Several petitioners in the present case were claimants therein and are thus conclusively considered victims of human rights during the Marcos regime.
One, Congress recognition that those who have filed a case against the Marcoses before the US Federal District Court in Hawaii and are given favorable judgment are considered human rights violations victims. This is called legislative cognizance.
Two, any person who has secured or can secure a favorable judgment from any court in the country arising from a human rights violation is given a so-called conclusive presumption that he or she is a human rights violation victim.
Three, some ten billion pesos of funds seized from bank accounts and discovered investments of the Marcos family shall be used to compensate the victims; and
Four, an independent Human Rights Victims Compensation Board is created attached to, but not necessarily under the direct supervision of the CHR to ensure the proper disposition of the funds guided by this Act.
No amount of money can really be enough to compensate our living heroes and those survived by their kinds for the democracy that our people are now enjoying. The least we can do though is pass this bill to honor, in our small way, the sacrifices, that they have made for our country.[220]
Both monetary[224] and non-monetary[225] forms of reparations were provided for in R.A. 10368. These measures notwithstanding, the members of the Bicameral Conference Committee emphasized the symbolic value of recognition in acknowledgment of the fact that material forms of reparation are not sufficient to atone for the suffering of the victims of atrocities:
Sen. Guingona: Page 5, letter (d) "Monetary Compensation refers to financial consideration equivalent to." Then, we changed "economically assessable damage" just to - We just make it "refers to financial consideration extended to human rights violation victims."Considering the foregoing, the intent is that not only must material reparation be provided by the state to human rights victims, the prohibition against public acts and symbolisms that degrade the recognition of the injury inflicted - although not expressly mentioned in the statute - are likewise included in the obligation of the state. Therefore, while the passage of legislative measures and the provision of government mechanisms in an effort to comply with this obligation are lauded, the State's duty does not end there.
Ang rationale dito kasi this one implies - The present definition implies that the damage - When you're human rights victim, it can be equivalent to a material damage when actually there is no adequate compensation when your human rights are violated. So we just make it just "financial consideration extended to human rights violation victims as defined in this Act." Ganoon.
Rep. Lagman: Baka instead of financial consideration, maski iyong consideration, ano, eh - Ah, financial reparation.
Sen. Guingona: Okay.
Rep. Lagman: Reparation.
Sen. Guingona: Reparation. Instead of "economically assessable" parang sinasabi mo you[r] right has been violated but that's eqivalent to this amount.[226]
x x x x
Sen. Arroyo: x x x Here, we seemed to be concerned about the physical aspects of human rights, meaning torture and all that. But take for instance, those who were economically depressed, harassed. You mean to say the family of Chino Roces, who lost his entire Manila Times and his family, is not really living in poverty x x x.
Now they will not ask for compensation but they would want recognition. This is the purpose of recognition. That is why to us that roll of honor is very important. Because to others, they just want to be recognized.[227] (Emphasis supplied)
Contrary to the implications of the ponencia, the statutes, issuances, and rules enacted by the different branches of government to promote human rights cannot suffice for the purpose of fulfilling the state's obligation to the human rights victims of former President Marcos. These enactments cannot erase the violations committed against these victims, or the failure of the state to give them justice; more important, these enactments cannot negate the further violation of their rights through the proposed burial.
It must be emphasized that the obligation owed by the Philippine government to the victims of human rights violations during Martial Law is distinct from the general obligation to avoid further violations of human rights. As distinct species of obligations, the general duty to prevent further human rights violations cannot offset the right of past victims to full and holistic reparations. Their rights under international law have already been violated; they have already disappeared, been tortured or summarily executed.[228] The government cannot choose to disregard their specific claims and assert that it has fulfilled its obligation to them merely by enacting laws that apply in general to future violations of human rights.
As will be further discussed, victims of human rights violations during the Martial Law regime have a distinct right to holistic reparations, including the grant thereof in symbolic form.
1. Symbolic reparation is an indispensable facet of an adequate reparations regime.
Symbolic forms of reparation are mandated by international law and are considered hallmarks of any reparations regime.[229] Within the framework of the UN Reparations Principles, satisfaction and guarantees of nonrepetition are described as symbolic, because they involve a greater intangible element.[230] On the other hand, restitution, compensation, and rehabilitation are typically financial or material in character. As earlier explained, a comprehensive and holistic program of reparations is expected to contain aspects of both.[231]
Symbols as sources of meaning
The collective dimension of symbolic reparations is the source of their value.[232] Symbolic reparations extend beyond the victim and their families, and represent a demand for recognition, respect, dignity, and hope for a safe future.[233] They assist communities as a whole in dealing with the process of remembering and commemorating the past.[234] In other words, symbolic measures provide moral reparation,[235] which is considered by victims to be of equal or higher importance than material or physical reparation.
The United Nations, in its guidelines for reparation programs for postconflict states, describes the significance of symbolic reparations in this manner:
As many recent reparations programmes have been proposed by truth commissions (which have broader mandates and goals than typical judicial instances), they are becoming less like mere compensation mechanisms and are increasingly proposing more complex reparations measures, including symbolic ones. Individualized letters of apology signed by the highest authority in Government, sending each victim a copy of the truth commission's report and supporting families to give a proper burial to their loved ones are some of the individual symbolic measures that have been tried with some success in different contexts. Some of the collective symbolic measures that have been tried are renaming public spaces, building museums and memorials, rededicating places of detention and torture, turning them into sites of memory, establishing days of commemoration and engaging in public acts of atonement. Like other reparations measures, symbolic benefits are, at least in part, geared towards fostering recognition. However, in contrast to other benefits, symbolic measures derive their great potential from the fact that they are carriers of meaning, and therefore can help victims in particular and society in general to make sense of the painful events of the past. Symbolic measures usually turn out to be so significant because, by making the memory of the victims a public matter, they disburden their families from their sense of obligation to keep the memory alive and allow them to move on. This is essential if reparations are to provide recognition to victims not only as victims but also as citizens and as rights holders more generally.[236] (Emphasis supplied)Restitution, compensation, and rehabilitation under the UN Reparations Principles, while necessary, are lacking in this symbolic dimension. Monetary forms of reparation can indeed provide funds for certain necessities and improve the future of victims, but without more, it is unlikely that they would lead to the justice sought.
Moreover, it has been observed that human rights victims want an apology, above all else.[237] They also place a premium on obtaining recognition of the harm done to them.[238] In contrast, financial reparations or damages are considered less important than emotional or symbolic reparations, because the former fail to squarely address a person's need for "dignity, emotional relief, participation in the social polity, or institutional reordering."[239] If given in isolation, monetary reparation may even have a trivializing effect on suffering in certain cultural, social, and political contexts.[240]
Forms of Symbolic Reparation
Because of its peculiar nature, symbolic reparation takes various forms. An examination of the UN Reparations Principles, as well as the decisions of international and regional courts, reveals that different measures have been utilized to satisfy this requirement.
The following have been identified as examples of measures intended to offer satisfaction to victims of atrocities: (a) "verification of the facts and full and public disclosure of the truth";[241] (b) "an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim";[242] (c) "public apology";[243] and (d) "commemorations and tributes to the victims."[244] These methods deal with the emotional, psychological, and symbolic aspects of the suffering of the victims,[245] and are primarily concerned with the restoration of their dignity through an acknowledgment by the state of the harm done.
Guarantees of non-repetition, on the other hand, focus on reform and restructuring initiatives pursuant to the state's commitment to never again engage in the practices that led to human rights violations.[246] The actual steps taken by state institutions represent the guarantees of non-repetition. These steps include "promoting mechanisms for preventing and monitoring social conflicts and their resolution"[247] and "reviewing and reforming laws contributing to or allowing gross violations of international human rights law."[248]
Meanwhile, the ICC in the Lubanga Case considered the conviction and the sentence issued by the Court itself as forms of reparation on account of their significance to the victims and the communities.[249] In turn, the IACtHR - the most progressive court in terms of granting reparations to victims of human rights violations - has ordered the following measures as part of "other forms of reparation": (a) the construction of monuments to commemorate the suffering of victims,[250] (b) the naming of a school after them,[251] (c) the designation of a day of remembrance for them,[252] (d) the conduct by the state of public ceremonies offering apologies in honor of the fallen;[253] (e) the establishment of memorial scholarships;[254] and (f) human rights courses.[255]
Memorials as Symbolic Reparation
In a report on memorialization processes utilized by states transitioning from conflicts or periods of repression, Farida Shaheed, the UN Special Rapporteur in the field of cultural rights, identified memorials as "physical representation[s] or commemorative activities, located in public spaces, that concern specific events regardless of the period of occurrence (wars and conflicts, mass or grave human rights violations), or the persons involved (soldiers, combatants, victims, political leaders or activists for example)."[256]
In recent times, memorials have become principally focused on honoring the victims of human rights atrocities. As Special Rapporteur Shaheed explained, memorials were utilized as a means of "ensuring recognition for the victims, as reparation for mass or grave violations of human rights and as a guarantee of non-recurrence,"[257] as well as a way to combat injustice and promote reconciliation.[258] This trend was followed in post-conflict states, where memorials commemorating victims of human rights violations were regularly established. The Report states:
An exhaustive list of all truth and reconciliation commissions that have advocated the construction of memorials is beyond the scope of this document. Nevertheless, one should mention the recommendations of the truth and reconciliation commissions in El Salvador, Germany, Guatemala, Peru, Morocco and South Africa and the commission of inquiry in Chad, even though not all their recommendations were implemented.The reason behind the creation of memorials intended to commemorate victims of atrocities was explained by Special Rapporteur Shaheed in relation to the duty to provide symbolic reparations:
The Commission on the Truth for El Salvador clearly called in its report for the construction of a national monument in El Salvador bearing the names of all victims of the conflict, recognition of their good name and the serious crimes of which they were the victims and the institution of a national holiday in memory of the victims of conflict as a symbol of reconciliation.
Similarly, the Commission for Historical Clarification in Guatemala recommended, among other things, that monuments and parks be constructed and the names of victims assigned to public buildings and highways in memory of the victims. The Commission stated that "the historical memory, both individual and collective, forms the basis of national identity."[259]
With the passage of time, memorials have shifted from honouring soldiers dying in the line of duty to a victims' perspective and new visions of reconciliation. Starting in the 1980s, the creation of memorials has become linked to the idea that ensuring public recognition of past crimes is indispensable to the victims, essential for preventing further violence and necessary for redefining national unity. Memorialization is often a demand of victims and society at large and the path to national reconciliation is seen to pass through not only legal reparations, but also symbolic reparations such as memorials.[260]2. The proposed burial would be the antithesis of an act of symbolic reparation.
In the present case, the dispute also involves the creation of a memorial in the form of a burial plot located at the LMB. Instead of commemorating victims, however, the memorial proposes to honor Marcos, the recognized perpetrator of countless human rights violations during the Martial Law regime. The establishment of this memorial would accomplish the exact opposite of what is intended by symbolic reparation, and would consequently violate the obligations of the Philippines under international human rights law.
For reasons previously discussed, the burial of Marcos would be more than a simple matter of the intennent of his remains, because it would involve his victims' right to symbolic reparations. Undoubtedly, to honor the very perpetrator of human rights atrocities would be the direct opposite of the duty of the state to respect, promote, and fulfil human rights.
These conclusions are supported by the opmwn of UN Special Rapporteur Pablo De Greiff in the analogous case of another dictator, General Francisco Franco of Spain, and his burial place - the Valle de los Caidos (Valley of the Fallen).[261] The site, located in Madrid, serves as a monument and a memorial, as it is also the burial ground of almost 34,000 other individuals. The structure, however, is still considered by many as "an exaltation of Francoism"[262] and a reminder of the forced labor of thousands of political prisoners who were compelled to build the structure.[263]
In his Report on the promotion of truth, justice, reparation and guarantees of non-recurrence,[264] Special Rapporteur De Greiff studied the fate of symbols of Francoism in relation to the then newly enacted 2007 Law of Historical Memory.[265] This law dealt with the recognition of victims of human rights violations during the Spanish Civil War and the 40-year regime of General Franco.
Special Rapporteur De Greiff reviewed, in particular, the effects of a provision in the Law of Historical Memory requiring the removal of all memorials related to Franco and the latter's dictatorship. In his report, he welcomed the measures introduced to combat the exaltation of the coup d'etat, the Civil War, and the repression by the Franco dictatorship, particularly through the removal of symbols and monuments.[266] He further noted "majority of inventoried symbols and monuments had been removed, and that the remaining symbols and monuments either required a lengthy administrative procedure or considerable expense, or were subject to protection rules for their historic or artistic value."[267]
As part of the implementation of the Law of Historical Memory, the removal of Valle de los Caidos was proposed because of its ties to General Franco and Francoism. However, because the structure could not be removed without disturbing the burial grounds of other individuals,[268] De Greiff made the following recommendation with respect to the site:
The site can be put to good use and "reinterpreted", with suitable techniques and pedagogy, in favour of the promotion of truth and memory, and given an educational and preventive purpose. It can hardly be construed as a place devoted to peace and reconciliation, so long as silence is maintained about the facts relevant to the context and origin of the site, and especially while the flower-covered tomb of the dictator remains in the centre of the monument.[269] [Emphasis supplied]The necessity for the reinterpretation and "recontextualization" of the Valle de los Caidos highlights the fact that far from being an ordinary burial plot, the final resting place of a dictator and perpetrator of human rights violations is a symbol and a source of meaning. The meaning it conveys, particularly to the victims of atrocities, cannot be underestimated. Special Rapporteur Shaheed, in her report on memorialization processes, also expressed concerns about the monuments and sites intended to honor past oppressive regimes:
The question is how to manage an architectural legacy with strong symbolic connotations when oppressive regimes collapse. Should a new democratic Government destroy, conserve or transform these legacies? Answers vary from situation to situation, frequently giving rise to intense controversy, including amongst victims. Striking examples include debates in Spain over the memorial in Valle de los caidos (the Valley of the Fallen) where Franco is buried, in Bulgaria over the mausoleum of former communist leader Georgy Dimitrov, which was finally destroyed, and in Germany over Hitler's bunker, now located beneath a parking lot in the centre of Berlin, marked only by a small sign.[270]Shaheed therefore concludes "the choice to conserve, transform or destroy always carries meaning and so needs to be discussed, framed and interpreted."[271] In this undertaking, the concerns and views of victims are given primary consideration and for good reason - they are, after all, the persons most affected by any decision on the matter.
In this case, the victims of human rights violations have expressed their objection to the proposed burial of Marcos in the LMB. They assert that the burial would constitute a state-sanctioned narrative that would confer honor upon him.[272] This, in turn, would subject his human rights victims to the same indignity, hurt, and damage that they have already experienced under his regime.[273]
These opinions must be given paramount consideration by the state in compliance with its duty to provide symbolic reparations to victims of human rights atrocities. For the President to allow the burial in disregard of these views would constitute a clear contravention of international human rights law and would amount to grave abuse of discretion.
C. The burial would run counter to the duty of the state to combat impunity.
As part of their obligation to protect and ensure human rights under international law,[274] states have the duty to combat impunity and hold perpetrators of human rights violations accountable. In fact, the clear nexus between the impunity of perpetrators of gross violations of human rights, and the failure to provide adequate reparation to the victims[275] indicate that the two obligations must go hand in hand.
In his report, Special Rapporteur Theodoor Van Boven concluded that "in many situations where impunity has been sanctioned by the law or where de facto impunity prevails with regard to persons responsible for gross violations of human rights, the victims are effectively barred from seeking and receiving redress and reparation."[276] His conclusion is unsurprising, given the significant role of reparations in ensuring that the perpetrators are held responsible for their actions.
Certainly, states cannot claim to look after the interest of the victims and at the same time endorse a social and political climate where impunity prevails. This incongruity would be tantamount to a violation of the victims' right to effective remedy and reparations. In Van Boven's words, "it is hard to perceive that a system of justice that cares for the rights of victims can remain at the same time indifferent and inert towards the gross misconduct of perpetrators."[277]
The UN Impunity Principles
The primary instrument providing for the duty to combat impunity is the UN Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (UN Impunity Principles).[278] Like the UN Reparations Principles, this document does not impose new obligations, but only frames and emphasizes the existing state obligations under international human rights law. This rule is apparent in the Preamble of the Principles, which cites the UN Charter and the UDHR as the bases for the statement that "the duty of every State under international law to respect and to secure respect for human rights requires that effective measures should be taken to combat impunity."[279]
In these Principles, the UN Human Rights Committee enumerates the acts from which impunity may arise. Principle 1 states:
Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.[280]A reading of the UN Principles on Impunity reveals the close relationship between impunity and the concepts of reparations and the preservation of memory.
Impunity and the Right to Reparation
The provision of effective remedies and reparations for victims has been recognized as one of the means to combat impunity. Principles 31 and 34 provide:
In particular, symbolic reparations are considered significant. In his Report[281] on the Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political),[282] Special Rapporteur Louis Joinet concluded:PRINCIPLE 31. RIGHTS AND DUTIES ARISING OUT OF THE OBLIGATION TO MAKE REPARATION
Any human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to seek redress from the perpetrator.
x x x xPRINCIPLE 34. SCOPE OF THE RIGHT TO REPARATION
The right to reparation shall cover all injuries suffered by victims; it shall include measures of restitution, compensation, rehabilitation, and satisfaction as provided by international law.
On a collective basis, symbolic measures intended to provide moral reparation, such as formal public recognition by the State of its responsibility, or official declarations aimed at restoring victims' dignity, commemorative ceremonies, naming of public thoroughfares or the erection of monuments, help to discharge the duty of remembrance. In France, for example, it took more than 50 years for the Head of State formally to acknowledge, in 1996, the responsibility of the French State for the crimes against human rights committed by the Vichy regime between 1940 and 1944. Mention can be made of similar statements by President Cardoso concerning violations committed under the military dictatorship in Brazil, and more especially of the initiative of the Spanish Government, which recently conferred the status of ex-servicemen on the anti-Fascists and International Brigade members who fought on the Republican side during the Spanish civil war.[283]The Duty to Preserve Memory
Another facet of the fight against impunity involves the duty of a state to preserve the memory of its people. In this regard, the UN Impunity Principles requires states to combat any measure that tends to encourage people to forget or downplay past human rights violations. Principle 3 provides:
While the UN Impunity Principles sees reconciliation and justice as the primary goals, it is firm in asserting that these goals may not be achieved by disregarding human rights atrocities that occurred in the past. In fact, the principles emphasize that before true reconciliation can be achieved, the human rights violators must be held accountable. This dictum is reflected in the Preamble of the instrument:PRINCIPLE 3. THE DUTY TO PRESERVE MEMORY
A people's knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in 61fulfillment of the State's duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
Aware that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied,Consistent with the foregoing, the UN Impunity Principles imposes restrictions on certain rules of law like limiting the entitlement of perpetrators to amnesties and other measures of clemency. In Principle 24, the restrictions are imposed even when clemency measures are "intended to establish conditions conducive to a peace agreement or to foster national reconciliation."[285] Joinet, in his report, emphasizes the importance of accountability in the context of reconciliation:
Equally aware that forgiveness, which may be an important element of reconciliation, implies, insofar as it is a private act, that the victim or the victim's beneficiaries know the perpetrator of the violations and that the latter has acknowledged his or her deeds,
x x x x
Convinced, therefore, that national and international measures must be taken for that purpose with a view to securing jointly, in the interests of the victims of violations, observance of the right to know and, by implication, the right to the truth, the right to justice and the right to reparation, without which there can be no effective remedy against the pernicious effects of impunity.[284]
[T]here can be no just and lasting reconciliation without an effective response to the need for justice; as a factor of reconciliation, forgiveness, insofar as it is a private act, implies that the victim must know the perpetrator of the violations and that the latter has been in a position to show repentance. For forgiveness to be granted, it must first have been sought.[286]In this case, the burial of Marcos in the LMB would be tantamount to a disregard of the human rights violations perpetrated by his regime. To allow it to proceed would sanction an egregious act of impunity and allow the government to bestow an honor that is clearly not due upon a perpetrator of human rights violations. To allow it would be a rampant violation of the rights of victims under international law.
In the process of mapping through the vast body of international human rights law, each turn leads to the conclusion that the burial of Marcos in the LMB would be incompatible with the international obligations of the Philippines. For the Court to permit the burial would be to sanction these violations and allow the state to disregard the latter's duty to provide effective remedies to victims of human rights violations, particularly its duty to provide symbolic reparations and to combat impunity.
Incorporation of international law principles in Philippine law
The foregoing principles of international law have been incorporated in Philippine law as part of two domestic statutes intended for the protection of human rights.
As discussed above, R.A. 10368 was enacted pursuant to generally accepted principles of international law. as well as the specific obligations of the Philippines under international human rights laws and conventions.[287] In accordance with these principles, the statute recognized the "heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations" and vowed to "restore the victims' honor and dignity" through the grant of reparations to victims and/or their families.[288]
The same principles were likewise incorporated in R.A. 9851,[289] a statute penalizing crimes against international humanitarian law, genocide, and other crimes against humanity. In providing remedies for offenses under this law, courts were specifically mandated to follow international principles relating to reparations for victims, including restitution, compensation, and rehabilitation.[290] The statute also enumerated the sources of international law that may guide the courts in the application and interpretation of the statute. These sources include international instruments, decisions of international courts and tribunals, as well as writings of most highly qualified publicists and authoritative commentaries.
The obligation of the state to provide holistic reparations for victims of human rights violations is, therefore, enshrined in both international and domestic laws. This obligation includes the responsibility to provide victims with reparations - both financial and symbolic - in recognition of their suffering and heroism. The grant of reparations should likewise go hand in hand with the duty of the state to combat impunity by holding perpetrators of human rights violations accountable.
As previously discussed, the proposed burial of former President Marcos in the LMB contravenes these principles, because it would honor the identified perpetrator of human rights violations. As such, it would accomplish the exact opposite of what is intended to be accomplished by international and domestic principles on reparations, i.e., to recognize and honor the sufferings of victims; and to make amends for the physical, emotional and psychological harm they have sustained. The burial would also perpetuate a climate of impunity, as it would effectively disregard the human rights violations perpetrated by Marcos and permit the state to honor him despite his transgressions.
Clearly, the President cannot sanction the burial without going against domestic and international principles, as well as his solemn oath to faithfully execute the law.
PUBLIC FUNDS AND PROPERTY CANNOT BE USED FOR THE BURIAL AS IT SERVES NO LEGITIMATE PUBLIC PURPOSE.
On a final note, I must point out that the discretion of the President in this case is not unlimited, as argued by respondents. Because their proposal involves public funds and property, certain rules must be complied with.
Respondents propose the use of a portion of the LMB, a national cemetery owned by the government, for the interment of Marcos. They likewise intend to use money from the government coffers for the preparation and maintenance of the gravesite, as well as for military honors to be accorded to the deceased by the AFP.
Considering that public resources would be used for the interment, it is necessary for this Court to determine if the planned expenditures are for a legitimate public purpose. The reason is simple public property, including public funds, belongs to the people.[291] Hence, it is the duty of the government to ensure the prudent use of these resources at all times to prevent dissipation and waste.[292] As a necessary corollary to these principles, it is settled that public property and funds may only be used for public purposes.[293]
This Court has explained the nature and the meaning of the term "public purpose" in the context of public expenditures in several cases. It has declared that the term includes not only activities that will benefit the community as a body and are related to the traditional functions of government,[294] but also those designed to promote social justice, general welfare and the common good.[295] This broad understanding of the public purpose requirement, however, does not authorize the use of public funds and property for unmistakably personal and political motives.[296]
Ultimately, the validity of a public expenditure depends on the essential character of its direct object. In Albon v. Fernando,[297] the Court explained:
In Pascual v. Secretary of Public Works, the Court laid down the test of validity of a public expenditure: it is the essential character of the direct object of the expenditure which must determine its validity and not the magnitude of the interests to be affected nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. Incidental advantage to the public or to the State resulting from the promotion of private interests and the prosperity of private enterprises or business does not justify their aid by the use of public money.[298] (Citations omitted and emphasis supplied)Based on the foregoing standard, the validity of public expenditures must be determined based on the nature of the particular expense involved, and the public purpose sought to be accomplished.
As will be explained in further detail, the proposed burial would promote only the private interest of the Marcos family. Significantly, respondents have failed to prove that any sort of public purpose would be served by the planned interment; in fact, the event would contravene the public purposes of the LMB. Consequently, the intended public expenditure cannot be allowed.
A. The burial would contravene the public purpose of the Libingan ng mga Bayani.
The government in this case proposes to shoulder the expenses for the burial of Marcos in the LMB, a military cemetery maintained on public property and a declared national shrine. The expenses contemplated are comprised of the cost of a plot inside a military cemetery, the maintenance expenses for the gravesite, and the cost of military honors and ceremonies.[299]
Generally, burial expenses are not borne by the government because interments are customarily private affairs. However, as exceptions to the foregoing rule, public expenditure is allowed in the case of cemeteries that serve certain public purposes, for instance: (a) burial grounds set aside for the indigent in the name of social justice;[300] and (b) cemeteries reserved for individuals deemed worthy of honor and reverence, i.e., the nation's war dead, soldiers or dignitaries, of the government.[301] The LMB belongs to this second exception.
Formerly known as the Republic Memorial Cemetery, the LMB was designated by former President Ramon M. Magsaysay as the national cemetery for the nation's war dead in 1954. Through Executive Order No. 77,[302] he ordered that the remains of the war dead interred at the Bataan Memorial Cemetery and other places be transferred to the LMB to accord honor to dead war heroes; improve the accessibility of the burial grounds to relatives of the deceased; and consolidate the expenses of maintenance and upkeep of military cemeteries. He thereafter issued Proclamation No. 86,[303] which renamed the cemetery to "Libingan ng mga Bayani," because the former name was "not symbolic of the cause for which our soldiers have died, and does not truly express the nation's esteem and reverence for her war dead."
It is therefore evident that the LMB is no ordinary cemetery, but a burial ground established on public property to honor the nation's war dead and fallen soldiers. Further, the designation of the cemetery as a national shrine confirms its sacred character and main purpose, that is, to serve as a symbol for the community and to encourage remembrance of the honor and valor of great Filipinos.[304] Respondents themselves acknowledged this fact when they argued that the LMB implements a public purpose because it is a military shrine and a military memorial.[305]
To allow the LMB to fulfill the foregoing purposes, it has been and continues to be the recipient of public funds and property. Not only was the cemetery established on land owned by the government, public funds are also being utilized for the cost of maintenance and other expenses. The use of these resources is justified because of the public purpose of the site. As a necessary consequence of this principle, an expenditure that does not further this public purpose is invalid.
Applying the foregoing standards, the proposed expenditures for the burial of Marcos in the LMB must be considered invalid. As earlier discussed, Marcos was an ousted dictator and disgraced president. Consequently, he is clearly not worthy of commendation from the state and no public purpose would be served by his interment therein. In fact, his burial in the LMB would result in a contravention of the public purpose of the site as it would no longer be a sacred symbol of honor and valor.
B. Respondents have not explained how the burial would serve the avowed policy of national unity and healing.
Considering that the public purpose of the LMB would not be served by the intennent, we must now examine the other public purpose supposedly fulfilled by the proposal. According to respondents, that purpose pertains to national unity and healing. In their Comment, they contend:
Undeniably, no cadaver has polarized this nation for the longest time other than that of the former President Marcos. Thus, President Duterte deems that it is but high time to put an end to this issue by burying the mortal remains of a former President, Commander-in-Chief, and soldier.It is significant to note, however, that respondents fail to explain how the burial would lead to national unity and healing. Consequently, their statements remain meaningless assertions. To emphasize, mere reference to an avowed public purpose cannot automatically justify the use of public funds and property. This Court must still review the validity of the declared purpose of public expenditure, as well as the reasonable connection between the objective and the proposed means for its attainment. Our duty to safeguard public funds and property demands no less. To reiterate, "[p]ublic funds are the property of the people and must be used prudently at all times with a view to prevent dissipation and waste."[308]
President Duterte's decision to accord respect to the remains of former President Marcos is not simply a matter of political accommodation, or even whims. Viewed from a wider perspective, this decision should be dovetailed to his war against corruption and dangerous drugs, and his recent dealings with the CPP/NPA/NDF. All these are geared towards changing the national psyche and beginning the painful healing of this country.[306]
x x x x
It should likewise be emphasized that President Duterte's order to allow former President Marcos' interment at the Libingan is based on his determination that it shall promote national healing and forgiveness, and redound to the benefit of the Filipino people. Surely, this is an exercise of his executive prerogative beyond the ambit of judicial review.[307]
Furthermore, as previously discussed, it is the essential character of the direct object of public expenditure that determines its validity,[309] and not the incidental advantage derived from it by the community. Hence, assuming for the sake of argument that the burial would bear an incidental benefit of promoting unity and healing, this supposed benefit would not erase the reality that the interment would principally be for the promotion of the personal interest of former President Marcos and his family.
C. The burial would promote only the private interest of the Marcos family.
It is clear from the foregoing discussion that the burial would ultimately benefit only the Marcos family. No general advantage is derived by the public from the interment; as it stands, divisiveness instead of unity has resulted from the plan.
The circumstances surrounding the order of the President to allow the burial likewise reveal the political color behind the decision. In their Comment, respondents admit that the President ordered the burial to fulfill a promise made during his presidential campaign.[310] It must be pointed out, however, that the President made that pledge not at any random location, but while campaigning in Ilocos Norte,[311] a known stronghold of the Marcos family. During the oral arguments held in this case, it was also revealed that the preparations for the burial were prompted by a letter sent by the Marcos heirs to Secretary Lorenzana, urging him to issue the orders required for the interment at the earliest opportunity.[312]
Needless to state, the private interest of the Marcos family and the personal objective of the President to fulfill a pledge to his political allies will not justify the proposed public expenditure for the burial.
Indeed, it is completely unseemly for the Marcos family to expect the Filipino people to bear the financial and emotional cost of burying the condemned former President even while this country has yet to recover all the ill-gotten wealth that he, his family, and unrepentant cronies continue to deny them.[313] It is wrong for this Government and the Marcos family to refer human rights victims to the financial reparation provided by Republic Act 10386 as recompense, which moneys will come, not from the private wealth of the Marcos family, but from the money they illegally acquired while in office, and on which the Philippine state spent fortunes to recover. Every Filipino continues to suffer because of the billions of unwarranted public debt incurred by the country under the Marcos leadership;[314] and every Filipino will incur more expenses, no matter how modest, for the proposed burial. No situation can be more ironic indeed.
Stripped to its core, this case involves an order by the President to bury a dictator - one declared to have perpetrated human rights violations and plundered the wealth of the nation - with all the trappings of a hero's burial. It may not be an express declaration, as respondents themselves concede that the President does not have the power to declare any individual a hero, but it is a pronouncement of heroism nevertheless. It is far from being an empty statement bereft of significance. As respondents themselves recognize, the nature of the office held by the President provides him the opportunity to "profoundly influence the public discourse x x x by the mere expediency of taking a stand on the issues of the day."[315] Clearly, the order of the President to allow the burial is, at the very least, a declaration that Marcos is worthy of a grave at a cemetery reserved for war heroes, despite the objections of countless victims of human rights violations during the Martial Law regime. It is an executive pronouncement that his memory may be preserved and maintained using public funds.
Justice Isagani Cruz once stated: "liberty is not a gift of the government but the rights of the govemed."[316] Throughout his regime, Marcos trampled upon this statement by his own acts and those of his subordinates, in a stampede wrought by the fervor to supposedly protect the nation from lawless elements. It pitted Filipino against Filipino, masking each face in shades of black or white and sowing fear and terror whilst reaping a harvest of public treasure. The nation was silenced. But people like petitioners persevered, keeping in their hearts the essence of Justice Cruz's words. They fought, and the people ultimately rose and won back the freedom we all now enjoy. The statement continues:
Every person is free, save only for the fetters of the law that limit but do not bind him unless he affronts the rights of others or offends the public welfare. Liberty is not derived from the sufferance of the government or its magnanimity or even from the Constitution itself, which merely affirms but does not grant it. Liberty is a right that inheres in every one of us as a member of the human family.[317]To forget that Marcos took this right away from the citizens of the Philippines would be the peak of intellectual and moral complacency. As a nation of laws, we cannot tolerate anything less than the full remembrance of a dark past from which we derive lessons that we imbue into the legal firmament. We cannot tolerate another instance in which our rights would be run to the ground, in which we would lose sight of the values held in our own Constitution, the symbols we hold dear, the aspirations we cherish. The LMB is revered because of the symbolism it carries. One treatise on geography and public memory explains:
Cemeteries, as one type of memorial space, create a symbolic encounter between the living and the dead in the form of individual gravesites and the ritual activities taking place in the burial space. In contrast to communal cemeteries, national cemeteries are state shrines that belong to the national narrative of the people. The heroes buried there - most prominently national leaders and fallen soldiers - are privileged members of the national pantheon.[318]A grave in the LMB is a testament to the honor and valor of the person buried therein. The Marcos family has long sought a burial for the dictator at this site for this exact reason.
The Court cannot order that a particular event be remembered in a particular way, but it can negate an act that whimsically ignores legal truths. It can invalidate the arbitrary distillation of the nation's collective memory into politically convenient snippets and moments of alleged glory. The Court is empowered to do justice, and justice in this case means preventing a whitewash of the sins of Marcos against the Filipino people.
The burial of Marcos in the earth from whence he came is his right, despite all that he did. However, his burial in the grave of heroes on the impulse of one man would continue the desecration of other citizens' rights, a chilling legacy of the Marcos regime that curiously survives to this very day, long after the death of the dictator.
Respondents may deny the implications of their actions today,[319] but the symbolism of the burial will outlive even their most emphatic refutations. Long after the clarifications made by this administration have been forgotten, the gravesite at the LMB will remain. That is the peculiar power of symbols in the public landscape they are not only carriers of meaning, but are repositories of public memory and ultimately, history.
For the Court to pretend that the present dispute is a simple question of the entitlement of a soldier to a military burial is to take a regrettably myopic view of the controversy. It would be to disregard historical truths and legal principles that persist after death. As important, it would be to degrade the state's duty to recognize the pain of countless victims of Marcos and Martial Law. Regardless of the promised national unity that the proposed burial will bring, I cannot, in good conscience, support such an expedient and shortsighted view of Philippine history.
WHEREFORE, I vote to GRANT the Petitions.
[1] Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016; Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003); Estrada v. Desierto, 406 Phil. 1 (2001); Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792; Bondoc v. Pineda, 278 Phil. 784 (1991); Marcos v. Manglapus, 258 Phil. 479 (1989).
[2] Arroyo v. De Venecia, 343 Phil. 42 (1997).
[3] David v. Macapagal-Arroyo, 522 Phil. 705 (2006); Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000); Llamas v. Orbos, 279 Phil. 920 (1991).
[4] 1987 Constitution, Preamble. Also see Concurring Opinion of Chief Justice Sereno in Poe-Llamanzares v. COMELEC, G.R. Nos. 221697 & 221698-700, 8 March 2016.
[5] Resident Marine Mammals of the Protected Seascape Tanon Strait, v. Secretary Angelo Reyes, G.R. No. 180771, 21 April 2015. West Tower Condominium Corp. v. First Phil. Industrial Corp., G.R. No. 194239, 16 June 2015; Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, 595 Phil. 305 (2008); Oposa v. Factoran, Jr., supra note 1.
[6] Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, 204934, 204957, 204988, 205003, 205043, 205138, 205478, 205491, 205720, 206355, 207111, 207172, 207563, 8 April 2014; Garcia v. Drilon, 712 Phil. 44 (2013); Philippine Telegraph and Telephone Co. v. National Labor Relations Commission, 338 Phil. 1093 (1997).
[7] Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700, 8 March 2016; Dela Cruz v. Gracia, 612 Phil. 167 (2009); People v. Abadies, 433 Phil. 814 (2002).
[8] Seagull and Maritime Corp. v. Dee, 548 Phil. 660 (2007); Lopez v. Metropolitan Waterworks and Sewerage System, 501 Phil. 115 (2005).
[9] La Bugal-B'laan Tribal Association, Inc. v. Ramos, 486 Phil. 754 (2004).
[10] The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728,21 January 2015, 747 SCRA 1; Land Bank of the Philippines v. Heirs of Angel T. Domingo, G.R. No. 168533, 4 February 2008, 543 SCRA 627; Guazon v. De Villa, 260 Phil. 673 (1990).
[11] See Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, 13 April 2010; The Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, 25 September 2007; Rule on the Writ of Habeas Data, A.M. No. 08-1-16-SC, 22 January 2008.
[12] See, among others, Vda. de Padilla v. Vda. de Padilla, 74 Phil. 377 (1943); Republic v. de los Angeles, 148-B Phil. 902 (1971); Floresca v. Philex Mining Corp., 220 Phil. 533 (1985); Salvacion v. Central Bank of the Philippines, 343 Phil. 539 (1997); Concurring Opinion of Chief Justice Maria Lourdes P.A. Sereno in Corpuz v. People, 734 Phil. 353 (2014) citing the Report of the Code Commission, p. 78; Social Weather Stations, Inc. v. COMELEC, G.R. No. 208062, 7 April 2015; Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, 10 November 2018; Poe-Llamanzares v. Commission on Elections, supra note 7.
[13] Concurring Opinion of Chief Justice Puno in Republic v. Sandiganbayan, 454 Phil. 504 (2003).
[14] Consolidated Comment dated 22 August 2016, p. 62; Oral Arguments Transcript of Stenographic Notes [hereinafter TSN], 7 September 2016, p. 243; Memorandum dated 27 September 2016, pp. 134-136.
[15] Integrated Bar of the Philippines v. Zamora, supra note 3.
[16] Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003).
[17] Oposa v. Factoran, Jr., supra note 1.
[18] Id.
[19] I RECORD of the 1986 Constitutional Commission 434-436 (1986).
[20] Estrada v. Desierto, supra note 1.
[21] Marcos v. Manglapus, supra note 1.
[22] Supra note 20, at 506-507.
[23] Estrada v. Desierto, supra note 1.
[24] Id. at 42-43.
[25] Francisco, Jr. v. House of Representatives, supra note 16, at 910.
[26] Araullo v. Aquino III, G.R. Nos. 209287, 209135, 209136, 209155, 209164, 209260, 209442, 209517, 209569, 1 July 2014, 728 SCRA 1, 74.
[27] Supra note 19.
[28] Department of Foreign Affairs v. National Labor Relations Commission, 330 Phil. 573 (1996); Callado v. International Rice Research Institute, 314 Phil. 46 (1995); Lasco v. United Nations Revolving Fund for Natural Resources Exploration, 311 Phil. 795 (1995); The Holy See v. Rosario, Jr., G.R. No. 101949, 1 December 1994, 238 SCRA 524; International Catholic Migration Commission v. Calleja, G.R. No. 85750, 89331, 268 Phil. 134 ( 1990).
[29] Vinuya v. Romulo, 633 Phil. 538 (2010).
[30] Evardone v. Commission on Elections, G.R. No. 94010, 95063, 2 December 1991, 204 SCRA 464.
[31] Marcos v. Manglapus, supra note 121.
[32] Gonzales v. Macaraig, Jr., 269 Phil. 472 ( 1990).
[33] Llamas v. Orbos, 279 Phil. 920 (1991).
[34] Integrated Bar of the Philippines v. Zamora, supra note 3.
[35] Estrada v. Desierto, supra note 1.
[36] David v. Macapagal-Arroyo, 522 Phil. 705 (2006).
[37] Id. at 766.
[38] Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374 (2010).
[39] Daza v. Singson, 259 Phil. 980 (1989).
[40] Bondoc v. Pineda, 278 Phil. 784 (1991).
[41] Bengzon Jr. v. Senate Blue Ribbon Committee, G.R. No. 89914, 20 November 1991.
[42] In Oposa v. Factoran, Jr., supra note 1, the Court declared that "the political question doctrine is no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review."
[43] Francisco, Jr. v. House of Representatives, supra note 16.
[44] Neri v. Senate Committee on Accountability of Public Officers and Investigations, 573 Phil. 554 (2008).
[45] Gutierrez v. House of Representatives Committee on Justice, 658 Phil. 322 (2011). We explained therein that "the Court is not asserting its ascendancy over the Legislature in this instance, but simply upholding the supremacy of the Constitution as the repository of the sovereign will."
[46] Tañada v. Angara, 338 Phil. 546 (1997), at 575.
[47] Id.
[48] Id.
[49] Belgica v. Ochoa, 721 Phil. 416 (2013).
[50] Araullo v. Aquino III, supra note 26.
[51] The Diocese of Bacolod v. Commission on Elections, supra note 10.
[52] Id. at 53.
[53] Villanueva v. Judicial and Bar Council, G.R. No. 211833, 7 April 2015, 755 SCRA 182.
[54] Id. at 197.
[55] Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016.
[56] Id.
[57] See Pimentel, Jr. v. Senate Committee on the Whole, 660 Phil. 202 (2011); Spouses dela Paz v. Senate Committee on Foreign Relations, 598 Phil. 981 (2009); Garcia v. Executive Secretary, 602 Phil. 64 (2009); Sanlakas v. Reyes, 466 Phil. 482 (2004); Eastern Assurance & Surety Corp. v. LTFRB, 459 Phil. 395 (2003); Lim v. Executive Secretary, 430 Phil. 555 (2002); Bagatsing v. Committee on Privatization, 316 Phil. 404 (1995); Co v. House of Representatives Electoral Tribunal, 216 Phil. 758 (1991); Garcia v. Executive Secretary, 281 Phil. 572 (1991).
[58] Defensor-Santiago v. Guingona, Jr., 359 Phil. 276 (1998).
[59] Supra note 38.
[60] Id. at 428.
[61] 1987 CONSTITUTION, Article VII, Section 17.
[62] 714 Phil. 127, 163-164 (2013).
[63] See Concurring Opinion of Associate Justice Arturo Brion, Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374 (2010).
[64] 135 U.S. 1, pp. 82-84.
[65] Id. at 64.
[66] In Carpio-Morales v. Court of Appeals, supra note 12, the Court defined grave abuse of discretion in this manner:
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. It has also been held that "grave abuse of discretion arises when a lower court or tribunal patently violates the Constitution, the law or existing jurisprudence." [citations omitted][67] Supra note 63.
[68] 234 Phil. 267 (1986).
[69] Id. at 272-273.
[70] G.R. No. 208062, 7 April 2015, 755 SCRA 124.
[71] Id. at 167.
[72] Provisional Constitution, First Whereas Clause; Also see In re: Puno, A.M. No. 90-11-2697-CA (Resolution), 29 June 1992.
[73] EXECUTIVE ORDER NO. 1, Creating the Presidential Commission on Good Government (1987).
[74] Id., Section 2(a).
[75] EXECUTIVE ORDER NO. 2, Regarding the fund, moneys, assets, and properties illegally acquired or misappropriated by former President Ferdinand Marcos, Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees (1987).
[76] Id. First Whereas Clause.
[77] Id.
[78] EXECUTIVE ORDER NO. 14, Defining the jurisdiction over cases involving the ill-gotten wealth of former President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, members of their immediate family, close relatives, subordinates, close and/or business associates, dummies, agents and nominees.
[79] EXECUTIVE ORDER NO. 2, supra note 75, First Whereas Clause.
[80] PCGG v. Peña, 243 Phil. 93 (1998).
[81] Section 3 of RA 10368 defines a "human rights violation" as "any act or omission committed during the period from September 21, 1972 to February 25, 1986 by persons acting in an official capacity and/or agents of the State."
[82] The definition of human rights violations in Section 3 of R.A. 10348 includes: any search, arrest and/or detention without a valid search warrant or warrant of arrest issued by a civilian court of law, including any warrantless arrest or detention carried out pursuant to the declaration of Martial Law by former President Ferdinand E. Marcos as well as any arrest, detention or deprivation of liberty carried out during the covered period on the basis of an "Arrest, Search and Seizure Order (ASSO)," a "Presidential Commitment Order (PCO)" or a "Preventive Detention Action (PDA)" and such other similar executive issuances as defined by decrees of former President Ferdinand E. Marcos, or in any manner that the arrest, detention or deprivation of liberty was effected.
[83] A human rights violation under Section 3(b)(5) of R.A. 10368 includes "[a]ny act of force, intimidation or deceit causing unjust or illegal takeover of a business, confiscation of property, detention of owner/s and or their families, deprivation of livelihood of a person by agents of the State, including those caused by Ferdinand E. Marcos, his spouse Imelda R. Marcos, their immediate relatives by consanguinity or affinity, as well as those persons considered as among their close relatives, associates, cronies and subordinates under Executive Order No. 1, issued on February 28, 1986 by then President Corazon C. Aquino in the exercise of her legislative powers under the Freedom Constitution."
[84] Under Section 3(d) of R.A. 10368, human rights violations may be compensation if they were committed by "Persons Acting in an Official Capacity and/or Agents of the State." This includes former President Ferdinand E. Marcos, spouse Imelda R. Marcos, their immediate relatives by consanguinity or affinity, as well as their close relatives, associates, cronies and subordinates.
[85] R.A. 10368, Section 4 states:
SECTION 4. Entitlement to Monetary Reparation. Any [Human Rights Violation Victim] qualified under this Act shall receive reparation from the State, free of tax, as herein prescribed x x x.[86] R.A. 10368, Section 5 provides:
SECTION 5. Nonmonetary Reparation. - The Department of Health (DOH), the Department of Social Welfare and Development (DSWD), the Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), and such other government agencies shall render the necessary services as nonmonetary reparation for HRVVs and/or their families, as may be determined by the Board pursuant to the provisions of this Act.[87] R.A. 10368, Section 7 provides:
SECTION 7. Source of Reparation. - The amount of Ten billion pesos (P10,000,000,000.00) plus accrued interest which form part of the funds transferred to the government of the Republic of the Philippines by virtue of the December 10, 1997 Order of the Swiss Federal Supreme Court, adjudged by the Supreme Court of the Philippines as final and executory in Republic vs. Sandiganbayan on July 15, 2003 (G.R. No. 152154) as Marcos ill-gotten wealth and forfeited in favor of the Republic of the Philippines, shall be the principal source of funds for the implementation of this Act.[88] Republic v. Sandiganbayan, 453 Phil. 1059 (2003).
[89] 686 Phil. 980 (2012).
[90] 512 Phil. 425 (2005).
[91] 515 Phil. 1 (2006).
[92] Id. at 48-49.
[93] See Contado v. Tan, 243 Phil. 546 (1988).
[94] 495 Phil. 372 (2005).
[95] Id. at 372.
[96] 335 Phil. 795 (1997).
[97] 664 Phil. 16 (2011).
[98] 545 Phil. 21 (2007).
[99] 228 Phil. 42 (1986).
[100] Id. at 71-83.
[101] See Heirs of Licaros v. Sandiganbayan, 483 Phil. 510, 524 (2004).
[102] See Republic v. Tuvera, supra note 98, p. 61.
[103] See PCGG v. Peña, 243 Phil. 93, 115 (1988).
[104] Mijares v. Ranada, supra note 94, p. 372.
[105] Marcos v. Manglapus, supra note 1, at 492.
[106] CIVIL CODE, Article 8.
[107] Government Service Insurance System v. Group Management Corp., 666 Phil. 277 (2011).
[108] 234 Phil. 144 (1987).
[109] Id. at 173-177.
[110] Id. at 177.
[111] Public Respondents' Memorandum with Prayer to Lift Status Quo Ante Order, (hereinafter Public Respondents' Memorandum), p. 106.
[112] PROCLAMATION NO. 208, Excluding from the operation of Proclamation No. 423, dated July 12, 1957, which established the Fort Bonifacio Military Reservation a certain portion of the land embraced therein situated in the Municipality of Taguig, Province of Rizal, and reserving the same for national shrine purposes, 28 May 1967.
[113] PRESIDENTIAL DECREE NO. 1076, Amending Part XII (Education) and Part XIX (National Security) of the Integrated Reorganization Plan, 26 January 1977.
[114] Rabuco v. Villegas, 154 Phil. 615 (1974).
[115] Civil Code, Article 7.
[116] See Almario v. Executive Secretary, 714 Phil. 127 (2013).
[117] TSN, 7 September 2016, pp. 11-12.
[118] 258 Phil. 479 (2008).
[119] Sanlakas v. Reyes, 466 Phil. 482 (2004).
[120] TSN, 7 September 2016, p. 11.
[121] Supra note 105, p. 504.
[122] Id. at 503.
[123] Supra note 62.
[124] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [hereinafter UN Charter].
[125] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, Vol. 999, p. 171 [hereinafter ICCPR].
[126] In Government of the United States of America v. Purganan, G.R. No. 148571, 17 December 2002, the Court explained the principle of pacta sunt servanda as follows:
Article 2, Section 2, of the 1987 Philippine Constitution provides for an adherence to general principles of international law as part of the law of the land. One of these principles is the basic rule of pacta sunt servanda or the performance in good faith of a state's treaty obligations. Pacta sunt servanda is the foundation of all conventional international law, for without it, the superstructure of treaties, both bilateral and multilateral, which comprise a great part of international law, could well be inconsequential.[127] UN CHARTER, supra note 124, Preamble.
[128] Id., Art. 55.
[129] Id.
[130] Id., Art. 56.
[131] Pursuant to Article 40 of the ICCPR, the UN HRC is described as the official body that monitors compliance with the ICCPR.
[132] UN Human Rights Committee (HRC), General Comment No. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13 [hereinafter UNHRC General Comment No. 31].
[133] Id., par. 2.
[134] Case concerning the Barcelona Traction Light and Power Company, Ltd. (Second Phase, Belgium v. Spain), I.C.J. Reports 1970, p. 32 [hereinafter Barcelona Traction Case].
[135] Id.
[136] Hurst Hannum, The Universal Declaration of Human Rights, in THE ESSENTIALS OF HUMAN RIGHTS 351 (Rhona K.M. Smith and Christian van den Anker eds., 2005).
[137] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Art. 3 [hereinafter UDHR].
[138] Id., Arts. 4, 5, 9.
[139] Id., Art. 12.
[140] Hannum, supra note 136.
[141] DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW, 37 (1999 ed.).
[142] Sonja B. Starr, Rethinking "Effective Remedies:" Remedial Deterrence in International Courts, 83 N.Y.U. L. REV. 693, 698 (2008), p. 693.
[143] Id.; Black's Law Dictionary 6th edn. (1990), 1120.
[144] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, RULE-OF-LAW TOOLS FOR POST-CONFLICT STATES: REPARATIONS PROGRAMMES, at 7, U.N. Sales No. E.08.XIV.3 (2008); SHELTON, supra note 141, at 15.
[145] DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW, 61 (2015 ed.).
[146] UDHR, supra note 137, art. 8.
[147] ICCPR, supra note 125, Art. 2.
[148] In General Comment No. 3 l, supra note 132, the UNHRC explains:
Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged.[149] UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, Vol. 660, p. 195 [hereinafter CERD]. Article 6 of this treaty provides:
States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.[150] UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, Vol. 1465, p. 85 [hereinafter CAT].
[151] Article 14 of the CAT states:
[152] UN Committee Against Torture (CAT), General Comment No. 3; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: implementation of article 14 by States parties, 13 December 2012 [hereinafter General Comment No. 3].
- Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
- Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.
[153] Id., par. 2.
[154] General Comment No. 3, par. 6 states:
Reparation must be adequate, effective and comprehensive. States parties are reminded that in the determination of redress and reparative measures provided or awarded to a victim of torture or ill-treatment, the specificities and circumstances of each case must be taken into consideration and redress should be tailored to the particular needs of the victim and be proportionate in relation to gravity of the violations committed against them. The Committee emphasi[z]es that the provision of reparation has an inherent preventive and deterrent effect in relation to future violations.[155] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 [hereinafter ECPHR]. Article 13 of the Convention provides:
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.[156] Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose," Costa Rica, 22 November 1969 [hereinafter ACHR]. Article 63 of the treaty talks about remedies and compensation, as follows:
If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.[157] African Union, Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, 11 July 2003. Article 27 of the Protocol states:
If the Court finds that there has been violation of a human or peoples' rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.[158] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, supra note 144, at 5-6.
[159] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Chp.IV.E.1, Art. 1 [hereinafter ILC Articles].
[160] ILC Articles, Art. 30(a).
[161] Id., Art. 30(b).
[162] Id., Art. 31(a).
[163] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, supra note 144, at 6.
[164] UN Sub-Commission on the Promotion and Protection of Human Rights, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: final report / submitted by Theo van Boven, Special Rapporteur., 2 July 1993, E/CN.4/Sub.2/1993/8, paragraphs 43-46 [hereinafter Van Boven Report]; See also Antoine Buyse, Lost and regained? Restitution as a remedy for human rights violations in the context of international law, 68 HEIDELBERG J. OF I. L. 129, 134-135 (2008), wherein the author posits as follows: "The ICJ in its Advisory Opinion Reparation for Injuries Suffered in the Service of the United Nations recognized that a nonstate entity - the international organization of the United Nations had the right to claim reparation at the international level from a state. Extending this, one could argue that if other new subjects of international law arise, they too can claim. Individuals have been recognized as being such subjects of international law. To the extent that they are accorded rights under international law, they should therefore have the possibility to claim."
[165] Van Boven Report, supra note 164, par. 45.
[166] ILC Articles, supra note 159, art. 33(2).
[167] UN Commission on Human Rights, Declaration on the Protection of All Persons from Enforced Disappearance, 28 February 1992, E/CN.4/RES/1992/29.
[168] Article 19 of the Declaration provides:
The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependants shall also be entitled to compensation.[169] UN General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power: resolution / adopted by the General Assembly, 29 November 1985, A/RES/40/34.
[170] The Declaration of Basic Principles of Justice for Victims of Crime (par. 4) states:
Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.[171] SHELTON, supra note 141, at 37.
[172] Id.
[173] Diana Contreras-Garduño, Defining Beneficiaries of Collective Reparations: the Experience of the IACtHR, 4 AMSTERDAM LAW FORUM, 43 (2012).
[174] General Comment No. 3, supra note 152, par. 5.
[175] Contreras-Garduño, supra note 173, at 43.
[176] Id.
[177] UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPRJC/21/Rev.1/Add.11, par. 14 [hereinafter General Comment No. 29] which states: "Article 2, paragraph 3, of the Covenant (ICCPR) requires a State party to the Covenant to provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective."
[178] The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, 14 May 2007.
[179] Id., par. 185.
[180] Jeremy Sarkin, Providing reparations in Uganda: Substantive recommendations for implementing reparations in the aftermath of the conflicts that occurred over the last few decades, 14 AHRLJ 526, 534-535 (2014).
[181] Van Boven Report, supra note 164, at 7.
[182] Factory At Chorzow, Germany v Poland, Judgment, Claim for Indemnity, Merits, Judgment No 13, (1928) PCIJ Series A No 17, ICGJ 255 (PCIJ 1928), 13 September 1928.
[183] Id., par. 124.
[184] Sarkin, supra note 180, at 528.
[185] Organization of American States (OAS) Inter-American Commission on Human Rights, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and First Judicial Proceedings, OEA/Ser.L/V/II, Doc. 3, 2 October 2007 [hereinafter Report on the Implementation of the Justice and Peace Law].
[186] Id., par. 98.
[187] Id., par. 110 (6).
[188] UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law: resolution / adopted by the General Assembly, 21 March 2006, A/RES/60/147 [hereinafter UN Reparations Principles].
[189] Sarkin, supra note 180, at 536.
[190] United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution 1989/13 of 31 August 1989.
[191] Van Boven Report, supra note 164, at par. 137, General Principle No.1.
[192] Id., par. 137, General Principle No.2.
[193] UN General Assembly Resolution 60/147, 16 December 2005.
[194] Sarkin, supra note 180, at 546.
[195] Buyse, supra note 164, at 140.
[196] UN Reparations Principles, supra note 188, at 3.
[197] The Preamble of the UN Reparations Principles states in relevant part:
Recalling the provisions providing a right to a remedy for victims of violations of international human rights law found in numerous international instruments. x x x[198] The UN Reparations Principles, supra note 188, Part I, states:
Recalling the provisions providing a right to a remedy for victims of violations of international human rights found in regional conventions. x x x
Recognizing that, in honouring the victims' right to benefit from remedies and reparation, the international community keeps faith with the plight of victims, survivors and future human generations and reaffirms the international legal principles of accountability, justice and the rule of law[.]
[199] The UN Reparations Principles, supra note 188, Part II, provides:
- Obligation to respect, ensure respect for and implement international human rights law and international humanitarian law
- The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law emanates from:
(a) Treaties to which a State is a party;
(b) Customary international law;
(c) The domestic law of each State.- If they have not already done so, States shall, as required under international law, ensure that their domestic law is consistent with their intemational legal obligations by:
II. Scope of the obligation
- The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to:(a)Take appropriate legislative and administrative and other appropriate measures to prevent violations;(b)Investigate violations effectively, promptly, thoroughly and impartially and, where appropriate. take action against those allegedly responsible in accordance with domestic and international law;(c)Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and(d)Provide effective remedies to victims, including reparation, as described below.
[201] Supra note 182.
[202] Contreras-Garduño, supra note 173, at 43.
[203] Van Boven Report, supra note 164, par. 131.
[204] I/A Court H.R., Case of Bulacio v. Argentina. Merits, Reparations and Costs. Judgment of 18 September 2003. Series C No. 100.
[205] Id., Judge A.A. Cancado Trindade (Separate Opinion), Sec. 25.
[206] Sarkin, supra note 180, at 542.
[207] Contreras-Garduño, supra note 173, at 41.
[208] General Comment No. 3, supra note 152, par. 9.
[209] UNHRC General Comment No. 31, supra note 132, par. 16.
[210] The Prosecutor v. Thomas Lubanga Dyilo, supra note 178.
[211] Id., par. 177.
[212] Id., par. 180.
[213] UN Human Rights Committee, Blazek et al. v. The Czech Republic, Communication No. 847/1999, CCPR/C/72/D/857/1999, 12 July 2001, par. 7.
[214] I/A Court H.R., Case of Gonzales Lluy et al. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 01, 2015. Series C No. 298.; Cf Case of the Las Dos Erres Massacre v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of November 24, 2009. Series C No. 211, para 226, and Case of Cruz Sanchez et al. v. Peru, para. 452.
[215] Contreras-Garduño, supra note 173, at 45, citing C. Medina-Quiroga, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System, 1988, p. 369.
[216] Van Boven Report, supra note 164, par. 81 citing the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 50.
[217] Van Boven Report, supra note 164, par. 82, citing European Court of Human Rights, De Wilde, Ooms and Versijp Cases ("Vagrancy" Cases), Judgment of 10 March 1972 (article 50), Series A, vol. 14, par. 16.
[218] Id., par. 20.
[219] RA 10368, Section 2.
[220] Explanatory Note of House Bill 54, introduced by Rep. Lorenzo R. Tañada, III, 15th Congress, First Regular Session.
[221] MDL No. 840, CA No. 86-0390, Human Rights Litigation Against the Estate of Ferdinand E. Marcos.
[222] RA 10368, Section 17.
[223] The Final Judgment in Human Rights Litigation Against the Estate of Ferdinand E. Marcos states in relevant part:
[224] R.A. 10368, Section 4 states:
SECTION 4. Entitlement to Monetary Reparation. Any HRVV qualified under this Act shall receive reparation from the State, free of tax, as herein prescribed x x x.[225] R.A. 10368, Section 5 provides:
SECTION 5. Nonmonetary Reparation. - The Department of Health (DOH), the Department of Social Welfare and Development (DSWD), the Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), and such other government agencies shall render the necessary services a nonmonetary reparation for HRVVs and/or their families, as may be determined by the Board pursuant to the provisions of this Act.[226] Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill 3334 and House Bill No. 5990 (Human Rights Victims Reparation and Compensation Act), 16 January 2013, 1-2, pp. 6-7.
[227] Id. at IV-6, p. 7 and 1-7, p. 1.
[228] See In re Estate of Ferdinand Marcos, Human Rights Litigation Hilao v. Estate of Ferdinand Marcos, 25 F. 3d 1467.
[229] Frederic Megret, Of Shines, Memorials and Museums: Using the International Criminal Court's Victim Reparation and Assistance Regime to Promote Transitional Justice, 13, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1403929 (last accessed 20 September 2016) [Megret].; Frederic Megret, The International Criminal Court and the Failure to Mention Symbolic Reparations, 12, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1275087 [last accessed 20 September 2016] [Megret II].
[230] Megret II, supra note 229, at 3.
[231] Sarkin, supra note 180, at 547.
[232] Megret II, supra note 229, at 6.
[233] Gina Doñoso, Inter-American Court of Human Rights' reparation judgments: Strengths and challenges for a comprehensive approach, 49 Revista IIDH 29, 58 (2009); Megret II, supra note 229, at 6.
[234] Sarkin, supra note 180, 548 citing the Report of Truth and Reconciliation Commission of South Africa.
[235] UN Sub-Commission on the Promotion and Protectton of Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political), 26 June 1997, E/CN.4/Sub.2/1997/20, par. 40 [hereinafter Joinet Report]; Contreras-Garduño, supra note 173, at 42.
[236] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, supra note 144, at 23.
[237] Thomas Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int'l Law, 279, 284 (2011).
[238] Megret, supra note 229, at 13.
[239] Thomas Antkowiak, supra note 237.
[240] Id.
[241] UN Reparations Principles, supra note 188, Principle 22 (b).
[242] Id., Principle 22 (d).
[243] Id., Principle 22 (e).
[244] Id., Par. 22 (g).
[245] Megret, supra note 229, at 26.
[246] Megret II, supra note 229, at 5.
[247] UN Reparations Principles, supra note 188, Principle 23 (g).
[248] Id., Principle 23 (h).
[249] The Prosecutor v. Thomas Lubanga Dyilo, supra note 178, par. 237.
[250] I/A Court H.R., Case of the Moiwana Community v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of June 15, 2005. Series C No. 124, par. 218.
[251] I/A Court H.R., Case of Trujillo Oroza v. Bolivia. Reparations and Costs. Judgment of February 27, 2002. Series C No. 92, par. 122.
[252] I/A Court H.R., Serrano-Cruz Sisters v. El Salvador, Monitoring Compliance with Judgment, Order of the Court, 2010 Inter-Am. Ct. H.R. (Feb. 3, 2010).
[253] Case of the Moiwana Community v. Suriname, supra note 250, par. 191.
[254] I/A Court H.R., Case of Norin Catriman et al. (Leaders, members and activist of the Mapuche Indigenous People) v. Chile. Merits, Reparations and Costs. Judgment of May 29, 2014. Series C No. 279, par. 432.
[255] I/A Court H.R., Case of Espinoza Gonzales v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 20, 2014. Series C No. 289, par. 327.
[256] UN Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, Memorialization processes, 23 January 2014, par. 5 [hereinafter Shaheed Report].
[257] Id., Summary.
[258] Id., par. 12.
[259] Id ., par. 39-41.
[260] Id., par. 9.
[261] UN Human Rights Council, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mission to Spain, 22 July 2014, par. 5 [hereinafter de Greiff Report].
[262] Id., par. 29-30
[263] Id., par. 32.
[264] Supra note 261.
[265] Ley de Memoria Historica or La Ley por la que se reconocen y amplian derechos y se establecen medidas en favor de quienes padecieron persecucion o violencia durante la Guerra Civil y la Dictadura, Ley 52/2007 de 26 de Diciembre.
[266] De Greiff Report, supra note 261, par. 27.
[267] Id.
[268] Id., par. 30.
[269] Id., par. 33.
[270] Id., par. 62.
[271] Id., par. 63.
[272] Rosales Petition, p. 61.
[273] Id. at 17.
[274] Anja Seibert-Fohr, Reconstruction Through Accountability in MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 559 (A. Von Bogdandy and R. Wolfrum, eds., 2005) citing U.N. GAOR, Hum. Rts. Comm., 52d Sess., 1365th mtg. at 12, para. 54, U.N. Doc. CCPR/C/SR.1365 (1994); U.N. GAOR, Hum. Rts. Comm., 57th Sess. at 5, para. 32, U.N. Doc. CCPR/C/79/Add.65 (1996).
[275] Van Boven Report, supra note 164, par. 126.
[276] Id., par. 127.
[277] Id., par. 130.
[278] UN Human Rights Committee, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, E/CN.4/2005/102/Add.1, 8 February 2005 [hereinafter UN Impunity Principles].
[279] Id., Preamble.
[280] Id., Principle 1.
[281] This report was accomplished pursuant to the request of the UNCHR Sub-Commission on Prevention of Discrimination and Protection of Minorities for Joinet to undertake a study on the impunity of perpetrators of human rights violations.
[282] Joinet Report, supra note 235.
[283] Id., par. 42.
[284] UN Impunity Principles, supra note 278, Preamble.
[285] Id., Principle 24.
[286] Joinet Report, supra note 235, par. 26.
[287] SECTION 2. Declaration of Policy. - Section 11 of Article II of the 1987 Constitution of the Republic of the Philippines declares that the State values the dignity of every human person and guarantees full respect for human rights. Pursuant to this declared policy, Section 12 of Article III of the Constitution prohibits the use of torture, force, violence, threat, intimidation, or any other means which vitiate the free will and mandates the compensation and rehabilitation of victims of torture or similar practices and their families.
By virtue of Section 2 of Article II of the Constitution adopting generally accepted principles of international law as part of the law of the land, the Philippines adheres to international human rights laws and conventions, the Universal Declaration of Human Rights, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity. In fact, the right to a remedy is itself guaranteed under existing human rights treaties and/or customary international law, being peremptory in character (jus cogens) and as such has been recognized as non-derogable.
Consistent with the foregoing, it is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.
Similarly, it is the obligation of the State to acknowledge the sufferings and damages inflicted upon persons whose properties or businesses were forcibly taken over, sequestered or used, or those whose professions were damaged and/or impaired, or those whose freedom of movement was restricted, and/or such other victims of the violations of the Bill of Rights.
[288] Id.
[289] Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, Republic Act No. 9851, 11 December 2009.
[290] Sections 14 and 15 of RA 9851 state:
SECTION 14. Reparations to Victims. - In addition to existing provisions in Philippine law and procedural rules for reparations to victims, the following measures shall be undertaken:[291] Dimapilis-Baldoz v. Commission on Audit, 714 Phil. 171 (2013).
Nothing in this section shall be interpreted as prejudicing the rights of victims under national or international law.
SECTION 15. Applicability of International Law. - In the application and interpretation of this Act, Philippine courts shall be guided by the following sources:
[292] Id.
[293] PRESIDENTIAL DECREE 1445 (1978), Section 4(2); REPUBLIC ACT 7160 (1991), Section 305(b); See Strategic Alliance Development Corp. v. Radstock Securities Ltd., 622 Phil. 431 (2009).
[294] Yap v. Commission on Audit, 633 Phil. 174 (2010).
[295] Binay v. Domingo, 278 Phil. 515 (1991).
[296] See Petitioner-Organizations v. Executive Secretary, 685 Phil. 295 (2012).
[297] 526 Phil. 630 (2006).
[298] Id. at 638.
[299] TSN, 7 September 2016, pp. 220-226.
[300] See REPUBLIC ACT NO. 7160, Section 17.
[301] See PROCLAMATION NO. 425, Balantang Memorial Cemetery National Shrine in Jaro, Iloilo City.
[302] EXECUTIVE ORDER NO. 77, Transferring the remains of war dead interred at Bataan Memorial Cemetery, Bataan Province and at other places in the Philippines to the Republic Memorial Cemetery at Fort WM Mckinley, Rizal Province, 23 October 1954.
[303] PROCLAMATION NO. 86, Changing the "Republic Memorial Cemetery" at Fort WM McKinley, Rizal Province, to "Libingan ng mga Bayani," 27 October 1954.
[304] PRESIDENTIAL DECREE NO. 105, Declaring Naiional Shrines as Sacred (Hallowed) Places and Prohibiting Desecration Thereof, (1973).
[305] Consolidated Comment dated 22 August 2016, pp. 43-44.
[306] Id. at 5.
[307] Id. at 26.
[308] Yap v. Commission on Audit, supra note 294, at 188.
[309] See Albon v. Fernando, supra note 297.
[310] Consolidated Comment dated 22 August 2016, p. 16.
[311] Id., footnote 51.
[312] TSN, 7 September 2016, p. 165, 234.
[313] See Chavez v. Presidential Commission on Good Government, 360 Phil. 133 (1998).
[314] In Presidential Commission on Good Government v. Peña, supra note 103, at 107, the Court stated:
The rationale of the exclusivity of such jurisdiction is readily understood. Given the magnitude of the past regime's "organized pillage" and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market, it is a matter of sheer necessity to restrict access to the lower courts, which would have tied into knots and made impossible the Commission's gigantic task of recovering the plundered wealth of the nation, whom the past regime in the process had saddled and laid prostrate with a huge $27 billion foreign debt that has since ballooned to $28.5 billion.[315] Public Respondents' Memorandum, p. 60.
[316] Ordoñez v. Director of Prisons, G.R. No. 115576, 4 August 1994, 235 SCRA 152.
[317] Id.
[318] Foote, Kenneth E. and Maoz Azaryahu, Toward a Geography of Memory: Geographical Dimensions of Public Memory, Journal of Political and Military Sociology, 2007, Vol. 35, No. 1 (Summer), pp. 125-144.
[319] In Public Respondents' Memorandum (p. 99), it was declared:
Besides, the chapter of Philippine history on Martial Law is not written in ordinary ink. Rather, its every word is written in the blood and tears of recognized and unsung heroes; its every page is a Shroud that has their bloodied but valiant faces on it; and each turn of these pages echoes their cried for freedom.
The point here is simple: the interment of the remains of former President Marcos at the Libingan is not tantamount to a consecretion of his mortal remains or his image for that matter. No amount of heartfelt eulogy, gun salutes, holy anointment, and elaborate procession and rituals can transmogrify the dark pages of history during Martial Law. As it is written now, Philippine history is on the side of petitioners and everybody who fought and died for democracy.
The petitions seek to prevent the interment of the remains of the late President Ferdinand E. Marcos (Marcos) at the Libingan ng mga Bayani (LNMB).
The LNMB was formerly known as the Republic Memorial Cemetery. On 27 October 1954, then President Ramon Magsaysay issued Proclamation No. 86, "changing the Republic Memorial Cemetery at Fort WM McKinley, Rizal Province, to Libingan ng mga Bayani." More than a decade later, then President Marcos issued Proclamation No. 208 on 28 May 1967, excluding approximately 1,428,800 square meters from the Fort Bonifacio Military Reservation for the site of the LNMB, and reserving the same for national shrine purposes under the administration of the National Shrines Commission. The National Shrines Commission was subsequently abolished and its functions transferred to the Military Shrines Service of the Philippine Veterans Affairs Office of the Department of National Defense under Presidential Decree No. 1076, issued by then President Marcos on 26 January 1977.
On 11 September 2000, Acting Armed Forces of the Philippines (AFP) Chief of Staff Jose M. Calimlim, by order of the Secretary of National Defense, issued AFP Regulation 161-375 (AFPR G 161-375),[1] on the allocation of cemetery plots at the LNMB.
Under AFPR G 161-375, the deceased persons who are qualified to be interred at the LNMB are:
a. Medal of Valor Awardees;AFPR G 161-375 also enumerates those not qualified to be interred at the LNMB, namely:
b. Presidents or Commander-in-Chief, AFP;
c. Secretaries of National Defense;
d. Chiefs of Staff, AFP;
e. Generals/Flag Officers of the AFP;
f. Active and retired military personnel of the AFP to include active draftees and trainees who died in line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities;
g. Former members of the AFP who laterally entered or joined the Philippine Coast Guard (PCG) and the Philippine National Police (PNP);
h. Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas;
i. Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or the Secretary of National Defense; and
j. Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief[s] of Staff.
a. Personnel who were dishonorably separated/reverted/discharged from the service; andIn a Memorandum dated 7 August 2016, the Department of National Defense (DND) Secretary Delfin Lorenzana ordered the AFP Chief of Staff Ricardo Visaya to undertake the necessary preparations to facilitate the interment of Marcos at the LNMB, in compliance with the verbal order of President Rodrigo Duterte on 11 July 2016.
b. Authorized personnel who were convicted by final judgment of an offense involving moral turpitude. (Emphasis supplied)
The DND Memorandum resulted in the filing of these petitions, which oppose the implementation of the DND Memorandum for the interment of Marcos at the LNMB.
I vote to grant the petitions on the ground that Marcos is not qualified to be interred at the LNMB, and thus the Memorandum dated 7 August 2016 of DND Secretary Lorenzana was issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
Marcos is disqualified from being interred at the LNMB
Assuming that Marcos was qualified to be interred at the LNMB as a Medal of Valor Awardee, and as a former President of the Philippines and Commander-in-Chief, he ceased to be qualified when he was ousted from the Presidency by the non-violent People Power Revolution on 25 February 1986.
AFPR G 161-375, which respondents rely on to justify the interment of Marcos at the LNMB, specifically provides that "personnel who were dishonorably separated/reverted/discharged from the service" are not qualified to be interred at the LNMB. Marcos, who was forcibly ousted from the Presidency by the sovereign act of the Filipino people, falls under this disqualification.
Dishonorable discharge from office
In Marcos v. Manglapus,[2] the Court described Marcos as "a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country."[3] In short, he was ousted by the Filipino people. Marcos was forcibly removed from the Presidency by what is now referred to as the People Power Revolution. This is the strongest form of dishonorable discharge from office since it is meted out by the direct act of the sovereign people.
The fact of Marcos' ouster is beyond judicial review. This Court has no power to review the legitimacy of the People Power Revolution as it was successfully carried out by the sovereign people who installed the revolutionary government of Corazon C. Aquino. The people have spoken by ratifying the 1987 Constitution, which was drafted under the Aquino government installed by the People Power Revolution. The Court has been steadfast in dismissing challenges to the legitimacy of the Aquino government, and has declared that its legitimacy is not a justiciable matter that can be acted upon by the Court.[4]
As the removal of Marcos from the Presidency is no longer within the purview of judicial review, we must accept this as an incontrovertible fact which has become part of the history of the Philippines. This ouster, which was directly carried out by by the sovereign act of the Filipino people, constitutes dishonorable removal from service. Marcos was forcibly removed from the position as President and Commander-in-Chief by the Filipino people. In Estrada v. Desierto,[5] the Court reiterated the legitimacy of the removal ofMarcos and the establishment of the Aquino government:
No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino people in defiance of the provisions of the 1973 Constitution, as amended. It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop.[6] (Emphasis supplied)The removal of Marcos from the Presidency, therefore, was a direct exercise of the sovereign act of the Filipino people that is "beyond judicial scrutiny." It cannot be said that this removal was an "honorable" one. Truly, there is nothing more dishonorable for a President than being forcibly removed from office by the direct sovereign act of the people.
Respondents argue that because Marcos was not dishonorably discharged in accordance with the procedures and guidelines prescribed in Administrative Discharge Prior to Expiration of Term of Enlistment (Circular 17, dated 2 October 1987, Series of 1987, of the Armed Forces of the Philippines), Marcos was honorably separated from service.
I disagree.
First, Marcos was separated from service with finality, having been forcibly ousted by the Filipino people on 25 February 1986. Circular 17, issued more than one year after such separation from office, cannot be made to apply retroactively to Marcos. When Circular 17 was issued, Marcos had already been finally discharged, terminated, and ousted as President and Commander-in-Chief - by the Filipino people. Circular 17 requires certain administrative procedures and guidelines in the discharge of incumbent or serving military personnel. There is a physical and legal impossibility to apply to Marcos Circular 17 since it was issued long after Marcos had been separated from office.
Second, even assuming that Circular 17 can be given retroactive effect, Marcos was still dishonorably discharged from service since Circular 17 cannot prevail over the sovereign act of the Filipino people. Marcos was ousted by the direct act of the Filipino people. The sovereign people is the ultimate source of all government powers.[7] The Constitution specifically declares that "sovereignty resides in the people and all government authority emanates from them."[8] Thus, the act of the sovereign people in removing Marcos from the Presidency, which is now beyond judicial review, and thus necessarily beyond administrative review, cannot be overturned by a mere administrative circular issued by a department secretary. The reality is, more than one year before Circular 17 was issued, Marcos had already been removed with finality from office by the sovereign people for reasons that are far from honorable.
Circular 17, a mere administrative issuance of a department secretary, cannot be applied retroactively to undo a final act by the sovereign people. The power of all government officials, this Court included, emanates from the people. Thus, any act that runs afoul with the direct exercise of sovereignty by the people, such as the removable of a dictator, plunderer and human rights violator, cannot be countenanced. The sovereign act of the Filipino people obviously prevails over a mere administrative circular issued by a department secretary.
Equal Protection Clause
The respondents assert that the disqualifications under AFPR G 161-375 are inapplicable to former presidents as the disqualifications under AFPR G 161-375 apply only to military personnel and not to non-military personnel.
I disagree.
The disqualifications prescribed under AFPR G 161-375 are reasonable per se considering that the LNMB is a national shrine.[9] Proclamation No. 86 renamed the Republic Memorial Cemetery to LNMB to make it more "symbolic of the cause for which Filipino soldiers have died" and "to truly express the nation's esteem and reverence for her war dead." The disqualifications are safeguards to ensure that those interred at the LNMB indeed deserve such honor and reverence.
However, to submit to respondents' view that the disqualifications under AFPR G 161-375 apply only to military personnel, and that the President, even as Commander-in-Chief, is not a military personnel subject to such disqualifications,[10] negates the purpose for which the LNMB was originally established, which is to honor Filipino soldiers who fought for freedom and democracy for our country. Indeed, Marcos is the very anti thesis of freedom and democracy because he was a dictator as declared by this Court.
Respondents' view will discriminate against military personnel who are subject to the disqualifications. Applying only to military personnel the disqualifications will unduly favor non-military personnel who will always be eligible, regardless of crimes committed against the State or humanity, to be interred at the LNMB as long as they are included in the list of those qualified. This will lead to the absurd situation where a military officer who was dishonorably discharged would be disqualified, while a deposed President who was dishonorably discharged through an act of the sovereign people for committing plunder, human rights violations, and other atrocious acts would still be qualified to be interred at the LNMB.
The term "personnel" is not defined anywhere in Circular 17 and thus, we must refer to its common usage. Personnel is defined as "the people who work for a particular company or organization."[11] The enumeration of the people qualified to be interred at the LNMB includes both military (such as the Generals, Flag Officers and Active and Retired Military personnel of the AFP) and civilian (such as Presidents, Secretaries of National Defense, Government Dignitaries, Statesmen, National Artists and widows of former Presidents) personnel. Thus, the term "personnel" as used in the provision for disqualifications should refer to both military and civilian personnel. Significantly, paragraph 4 of AFPR G 161-375, the provision which enumerates those not qualified to be interred at the LNMB, does not use the word "military" to define personnel, while for other provisions in the regulation, the term "military" is specifically used to classify "personnel."
If as respondents argue, the disqualifications should apply only to military personnel, then AFPR G 161-375 would be a patent violation of the Equal Protection Clause as it would indiscriminately create unreasonable classifications between civilian and military personnel for purposes of interment at the LNMB. Such classification serves no purpose and is not germane to the purpose of interment at the LNMB. The Equal Protection Clause enshrined in Section 1, Article III of the 1987 Constitution states that: "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." The Equal Protection Clause applies not only to statutes or legislative acts but to all official state actions.[12] As explained in Bureau of Customs Employees Associations (BOCEA) v. Hon. Teves:[13]
Equal protection simply provides that all persons or things similarly situated should be treated in a similar manner, both as to rights conferred and responsibilities imposed. The purpose of the equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution through the state's duly constituted authorities. In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.[14]To be valid, a classification must be reasonable and based on real and substantial distinctions. The Court, in the landmark case of Victoriano v. Elizalde Rope Workers' Union,[15] held:
All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences; that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.[16]Thus, for a classification to be valid and compliant with the Equal Protection Clause, it must (1) be based on substantial distinctions, (2) be germane to the purpose of the law, (3) not be limited to existing conditions only, and (4) apply equally to all members of the same class.[17]
In this case, however, there is no substantial distinction between the military and civilian personnel, for purposes of interment at the LNMB, that would warrant applying the disqualifications to military personnel and not to civilian personnel.
In Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,[18] the Court found that the rank-and-file employees of the Bangko Sentral ng Pilipinas (BSP) were unduly discriminated against when all the rank-and-file employees of other Government Financial Institutions (GFIs) were exempted from the Salary Standardization Law (SSL) while the SSL continued to be applied to the rank-and-file employees of the BSP. The Court held that while the exemption from the applicability of the SSL is a privilege that is within the prerogative of the legislature to grant, the validity or legality of the exercise is still subject to judicial review, such that if it is exercised capriciously and arbitrarily, the Court is duty bound to correct it. The Court held:
It bears stressing that the exemption from the SSL is a "privilege" fully within the legislative prerogative to give or deny. However, its subsequent grant to the rank-and-file of the seven other GFIs and continued denial to the BSP rank-and-file employees breached the latter's right to equal protection. In other words, while the granting of a privilege per se is a matter of policy exclusively within the domain and prerogative of Congress, the validity or legality of the exercise of this prerogative is subject to judicial review. So when the distinction made is superficial, and not based on substantial distinctions that make real differences between those included and excluded, it becomes a matter of arbitrariness that this Court has the duty and the power to correct. As held in the United Kingdom case of Hooper v. Secretary of State for Work and Pensions, once the State has chosen to confer benefits, "discrimination" contrary to law may occur where favorable treatment already afforded to one group is refused to another, even though the State is under no obligation to provide that favorable treatment.Therefore, under the Equal Protection Clause, persons who are in like circumstances and conditions must be treated alike both as to the privileges conferred and liabilities imposed. In this case, as those enumerated in the AFPR G 161-375 are all granted the privilege of being interred at the LNMB, consequently, the disqualifications must also be made applicable to all of them. There is no substantial or reasonable basis for the disqualifications to be made applicable to military personnel only when civilians alike may be dishonorably dismissed from service for the same offenses.
The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely bears the unmistakable badge of invidious discrimination - no one can, with candor and fairness, deny the discriminatory character of the subsequent blanket and total exemption of the seven other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis.
Again, it must be emphasized that the equal protection clause does not demand absolute equality but it requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion; whatever restrictions cast on some in the group is equally binding on the rest.[19] (Italicization in the original)
To sustain respondents' view would give rise to an absurd situation where civilians, eligible to be interred at the LNMB would have the absolute and irrevocable right to be interred there, notwithstanding that military personnel, likewise eligible to be interred at the LNMB, may be disqualified. There is no real or substantial basis for this distinction. The conditions for disqualification should likewise be applied to civilian personnel as the privileges conferred on them - interment at the LNMB is the same privilege conferred on military personnel.
Marcos' interment at the LNMB is contrary to public policy
Jurisprudence defines public policy as "that principle of the law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good."[20]
The Constitution grants the Legislative branch the power to enact laws and establish the public policy behind the law. The public policy is prescribed by the Legislature and is implemented by the Executive. The Executive must implement the law by observing the highest standards of promoting the public policy. These standards are embedded in the Constitution, international law and municipal statutes. By these standards, the DND Memorandum ordering the interment of Marcos at the LNMB is contrary to public policy.
Section 11, Article II of the 1987 Constitution provides that the State values the dignity of every human person and guarantees full respect for human rights. This public policy is further established in Section 12 of Article III which prohibits the use of torture, force, violence, threat, intimidation, or any other means which vitiate free will and mandates the rehabilitation of victims of torture or similar practices. Also, following the doctrine of incorporation,[21] the Philippines adheres to the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the Convention Against Torture. Through the provisions of the Constitution and international law, the State binds itself to enact legislation recognizing and upholding the rights of human rights victims.
Congress, by enacting Republic Act No. 10368 or "The Human Rights Victims Reparation and Recognition Act of 2013," established as a "policy of the State" to recognize the heroism and sacrifices of victims of (a) summary execution; (b) torture; (c) enforced or involuntary disappearance; and (d) other gross human rights violations during the Marcos regime. Section 2 of R.A. No. 10368 states:
Consistent with the foregoing, it is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime. (Emphasis supplied)R.A. No. 10368 mandates that it is the "moral and legal obligation" of the State to recognize the sufferings and deprivations of the human rights victims of Marcos' martial law regime. Interring Marcos on the hallowed grounds of the LNMB, which was established to show "the nation's esteem and reverence" for those who fought for freedom and democracy for our country, extols Marcos and exculpates him from human rights violations. This starkly negates the "moral and legal obligation" of the State to recognize the sufferings and deprivations of the human rights victims under the dictatorship of Marcos.
The legislative declarations must be implemented by the Executive who is sworn under the Constitution to "faithfully execute the law." The Executive, in implementing the law, must observe the standard of recognizing the rights of human rights victims. Marcos' interment at the LNMB will cause undue injury particularly to human rights victims of the Marcos regime, as well as the sovereign people who ousted Marcos during the People Power Revolution. Marcos' interment at the LNMB is thus contrary to public policy.
The sufferings and deprivations of the human rights victims during the martial law era are well documented. The United States District Court of Hawaii in In Re Estate of Marcos[22] held Marcos guilty of widespread human rights violations and awarded one billion two hundred million U.S. Dollars ($1,200,000,000) in exemplary damages and seven hundred sixty-six million U.S. Dollars ($766,000,000) in compensatory damages to human rights victims. The judgment of the district court was affirmed by the Ninth Circuit Court of Appeals in Hilao v. Estate of Marcos.[23]
Finally, government funds or property shall be spent or used solely for public purposes.[24] Since Marcos was ousted by the sovereign act of the Filipino people, he was dishonorably discharged from office. Consequently, Marcos' dishonorable discharge serves to convert his burial into a private affair of the Marcos family. Hence, no public purpose is served by interring his remains at the LNMB.
ACCORDINGLY, I vote to GRANT the petitions in G.R. Nos. 225973, 225984, 226097, 226116, 226117, 226120, and 226294 and to DECLARE the DND Memorandum dated 7 August 2016 VOID for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
[1] AFPR G 161-375 superseded AFPR G 161-374 dated 27 March 1998, which in turn superseded AFPR G 161-373 issued on 9 April 1986.
[2] 258 Phil. 479 (1989).
[3] Id. at 492.
[4] Joint Resolution, Lawyers' League for a Better Philippines v. President Aquino, G.R. No. 73748; People's Crusade for the Supremacy of the Constitution v. Aquino, G.R. No. 73972; Ganay v. Aquino, G.R. No. 73990, 22 May 1986 (unsigned Resolution).
[5] 406 Phil. 1 (2001).
[6] Id. at 43-44.
[7] See Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, 239 Phil. 403 (1987).
[8] Article II, Section 1, 1987 Philippine Constitution.
[9] Proclamation No. 208, issued on 28 May 1967.
[10] Consolidated Comment (of public respondents) in G.R. No. 225973, G.R. No. 225984, and G.R. No. 226097, pp. 54-55.
[11] http://www.merriam-webster.com/dictionary/personnel?utm_campaign=sd&utm_medium=serp&utm_source=jsonld (last accessed 14 September 2016).
[12] 1-United Transport Koalisyon (1-UTAK) v. Commission on Elections, G.R. No. 206020, 14 April 2015, 755 SCRA 441; Biraogo v. The Phil. Truth Commission of 2010, 651 Phil. 374 (2010).
[13] 677 Phil. 636 (2011).
[14] Id. at 660.
[15] 158 Phil. 60 (1974).
[16] Id. at 87.
[17] Tiu v. CA, 361 Phil. 229 (1999).
[18] 487 Phil. 531 (2004).
[19] Id. at 582-583. Citations omitted.
[20] Gonzalo v. Tarnate, Jr., 724 Phil. 198, 207 (2014), citing Avon Cosmetics, Inc. v. Luna, 540 Phil. 389, 404 (2006).
[21] Article II, Section 2 states: "The Philippines x x x adopts the generally accepted principles of international law as part of the law of the land x x x."
[22] 910 F. Supp. 1460 (D. Haw. 1995).
[23] 103 F.3d 767 (9th Cir. 1996).
[24] Fort Bonifacio Dev't. Corp. v. Commissioner of Internal Revenue, 694 Phil. 7 (2012).
SEPARATE CONCURRING OPINION
BRION, J.:
I write this Separate Concurring Opinion to express the reasons for my vote to dismiss the petitions assailing President Rodrigo Duterte's order to inter the remains of former President Ferdinand Marcos at the Libingan ng Mga Bayani (LNMB).
I opine that the Court cannot grant the petitions as the petitioners presented issues that are outside our judicial authority - as defined by law and jurisprudence - to resolve.
I am not insensitive to the plight of victims of human rights violations, nor am I unaware of the allegations they raised against the Marcos administration. But their emotions and beliefs cannot and should not influence the faithful discharge of my duties as a Member of this Court.
The judicial power that the Court wields is symbolized by a blindfolded lady carrying a set of scales for a reason: it bases its decision, not on who the litigants are, nor on the clout - political, emotional, or financial - they may carry; judicial adjudication is based on law and evidence alone. Under this standard, I cannot grant the petitions without knowingly crossing the line separating judicial power from judicial overreach.
To my mind, the present petitions, however emotionally charged they might be, do not present an actual case or controversy that calls for the exercise of the power of judicial review.
Without an actual case or controversy, we cannot and should not exercise this exceptional power; even our expanded jurisdiction under the Constitution does not allow exceptions to this deficiency. For us to indulge in this exercise would not only amount to a judicial overreach, but could possibly thrust this Court into a political minefield that could not be traversed without weakening the public's trust and confidence in our institution.
Ours is a power that emanates from the authority, granted to us under the Constitution, to interpret and apply the law in actual and live disputes. We exercise this power through the decisions we render in cases presented before us; without the public's respect and trust in the legal soundness of our decisions, our pronouncements would be no different from meaningless doodles that children write on throw away papers.
Even if we were to exercise our power of judicial review in these petitions, the exercise of our judgment should be limited by the following considerations:
First, judicial review, even under our Court's expanded jurisdiction, does not empower the Court to directly pass upon allegations involving violations of statutes;
Second, the Constitution's "faithful execution" clause cannot be made the basis to question the Executive's manner of implementing our laws;
Third, the petitioners failed to specify any treaty obligation prohibiting Marcos' burial at the LNMB;
Fourth, the Constitution, while built on the ashes of the Marcos regime, should not be interpreted in a way that would prevent reconciliation and the country's move towards national unity; and
Finally, the necessity of Marcos' burial at the LNMB is a political question that the President has decided, and is not without support from the Filipino electorate.
I shall discuss these points in the order posed above.
Judicial review, even under our Court's expanded jurisdiction, does not empower the Court to directly pass upon allegations involving violations of statutes.
The petitions directly assail before this Court the President's decision allowing the interment of the remains of former President Marcos at the LNMB; they impute grave abuse of discretion on President Duterte for this decision and seek, under this Court's expanded jurisdiction, the nullification of his actions. By doing so, the petitioners directly seek the exercise of our power of judicial review.
After due consideration, I find that these petitions failed to establish the necessity of the Court's direct exercise of its power of judicial review, as their cited legal bases and arguments largely involve violations of the law or its misapplication. The remedy available to them, given their objective, is not judicial review under the Court's expanded jurisdiction, but the ordinary remedies available for errors of law under the Rules of Court.
Thus, we cannot grant to the petitioners the remedy they seek, as their desired remedy lies outside this Court's power to directly provide.
The petitions collectively assert that the burial order violates several statutes and implementing rules and regulations, among them: AFP Regulations G 161-373,[1] Republic Act (RA) No. 289,[2] and RA 10368.[3] The petitions further assert that the President's failure to interpret these laws, together or in relation with one another, to bar Marcos' burial at the LNMB,
violates the faithful execution clause and the spirit of the 1987 Constitution.
Indeed, our Court now possesses the duty to determine and to act when "grave abuse of discretion amounting to lack or excess of jurisdiction on the part of ... the government" exists. This is a grant of power under the second paragraph of Article VIII, Section 1 of the 1987 Constitution.
Under the expanded jurisdiction that the Constitution granted this Court, our duty to exercise judicial review runs broad and deep; it exists even when an aspect of the case involves a political question. We have in fact cited this duty to justifY the relaxation of the "standing" requirement for judicial review when the case presents a matter of transcendental importance, a standard that the Court has formulated and self-defined to allow for the exceptional application of our jurisdiction.
Separately from all these, I have also been pushing for an alternative approach in invoking our expanded jurisdiction, by recognizing that a prima facie showing of grave abuse of discretion on the part of the government in cases involving constitutional violations, should be sufficient to give a Filipino citizen the standing to seek judicial remedy.
The Court's expanded jurisdiction, however, affects only the means of invoking judicial review, and does not change the nature of this power at all. The power of judicial review pertains to the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution.[4] As a requirement for its direct exercise by this Court, the "grave abuse of discretion" that triggers the Court's expanded jurisdiction must necessarily involve a violation of the Constitution.
In other words, the Court's direct authority to exercise its expanded jurisdiction is limited to the determination of the constitutionality of a governmental act. Grave abuse of discretion arising from mere violations of statutes cannot, as a rule, be the subject of the Court's direct exercise of its expanded jurisdiction. The petitioners' recourse in this situation lies with other judicial remedies or proceedings, allowed under the Rules of Court, that may arrive in due course at the Court's portals for review.
In the context of the present case, for the Court to directly exercise its expanded jurisdiction, the petitioners carry the burden of proving, prima facie, that the President's decision to inter Marcos at the LNMB violates the Constitution.
This view is not only in accord with existing pronouncements on judicial review and the exercise of judicial power; it is also the more prudent and practicable option for the Court.
Opening the Court's direct exercise of its expanded jurisdiction to acts that violate statutes, however grave the abuse of the statute might be, significantly dilutes the doctrines of hierarchy of courts,[5] primary jurisdiction,[6] and exhaustion of administrative remedies.[7] In short, the necessity for the application of these doctrines diminishes when recourse to the Court is immediately and directly made available.
The practice of directly accessing this Court could also possibly add petitions that are jointly cognizable with the lower courts, to the Court's already clogged dockets, and deluge this Court with matters that are highly technical in nature or are premature for adjudication. Let it be remembered that the Supreme Court is not a trier of facts; this adjudicatory role belongs, as a rule, to the lower courts.
In these lights, I find that the petitioners' allegations equating President Duterte's alleged statutory violations (when he issued his burial order) to grave abuse of discretion, are not the proper subject of judicial review under the Court's direct exercise of its expanded jurisdiction.
Assuming, hypothetically, that several statutes have indeed been erroneously applied by the President, the remedy for the petitioners is not the direct and immediate recourse to this Court for the nullification of the illegal acts committed. Violations of statutes by the Executive may be assailed through administrative bodies that possess the expertise on the applicable laws and that possess as well the technical expertise on the information subject of, or relevant to, the dispute.
For these statutory violations, recourse may be made before the courts through an appeal of the administrative body's ruling, or by filing for a petition for declaratory relief before the lower court with jurisdiction over the matter. Only when these lower courts have rendered their decisions should these matters be elevated to this Court by appeal or certiorari; even then, the issues the petitioners may present are limited to questions of law, not to questions of fact.
The faithful execution clause does not allow the constitutionalization of issues that, if proven to be true, would amount to the violation of statutes.
Neither can I agree that the "faithful execution" clause found in the Constitution may be used to constitutionalize issues that primarily involve the manner by which laws are implemented.
The Constitution vests in the President the power to execute laws under Section 1, Article VII of the 1987 Constitution which provides:
SECTION 1. The executive power shall be vested in the President of the Philippines.The Constitution has apparently left out from this provision a definition of what "executive power" exactly is, in order to give the President sufficient flexibility and leeway in the implementation of laws. We thus have jurisprudence recognizing the vast and plenary nature of executive power,[8] and the President's vast discretion in implementing laws.
This immense executive power, however, is not without limitations. The Constitution provides clear and categorical limits and any violation of these limits could amount to a grave abuse of discretion on the part of the President.
The Constitution has as well defined how the President is to relate to other officials within his own department. Article VI, Section 17 of the 1987 Constitution provides that:
SECTION 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.Through jurisprudence, we have recognized that this provision vests in the President the power of control and supervision over all the executive departments, bureaus, and offices.[9] The first sentence pertains to the President's power of control, while the latter, to his power of supervision. His duty to "ensure that the laws be faithfully executed" pertains to his power (and duty) of supervision over the executive branch, and when read with Section 4, Article X of the 1987 Constitution, over local government units.[10] Notably, the provision on the President's supervision over autonomous regions follows a similar language, thus:
SECTION 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed.How laws are to be "faithfully executed" provides a broad standard generally describing the expectations on how the President is to execute the law. The nature and extent of the constitutionally-granted presidential powers, however, negate the concept that this standard can be used as basis to constitutionally question the manner by which the President exercises executive power.
To hold otherwise is inconsistent with the plenary nature of executive power that the Constitution envisions. The Constitution intends as well a tripartite system of government where each branch is co-equal and supreme in its own sphere.
These intents could be defeated if the standard of "faithfulness" in executing our laws would be a constitutional standard measuring the manner of the President's implementation of the laws. In the first place, it places the Court in the position to pass upon the scope and parameters of the vague and not-easily determinable "faithfulness" standard. Putting the Court in this position (especially when considered with the Court's expanded jurisdiction) amounts to placing it in a higher plane from where it can dictate how laws should be implemented. In fact, it is hard to discern how the Court can apply a standard for the faithful execution of the laws, without determining how the law should be implemented in the first place.
Additionally, characterizing the failure to ensure faithful execution of the laws as a constitutional violation can prove to be an unreasonably restricting interpretation. It could possibly paralyze executive discretion, and expose the Executive to constant lawsuits based on acts of grave abuse of discretion he or she allegedly committed.
Thus, the duty to "ensure that laws are faithfully executed" should not be read as the constitutional standard to test the legality of the President's acts so that a legal error in the implementation of a law becomes a con:stitutional violation of his faithful execution duty.
Incidentally, the interpretation that the faithful execution clause refers to the President's power of control and supervision is in line with US jurisprudence interpreting the "take care" clause of the United States Constitution, which - as everyone knows - served as the 1935 Philippine Constitution's model from which our later constitutions have not departed. Article II, Section 3 of the United States Constitution provides:
Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.In the United States, the take care clause has generally been accepted as imposing a constitutional duty on the President not to suspend or refuse the enforcement of laws, particularly of statutes.[11]
In Kendall v. United States ex rel. Stokes,[12] for instance, the US Supreme Court characterized a provision requiring the Postmaster General to provide back pay to mail courier providers as a ministerial duty that the President had no authority to prevent. The US Court arrived at this ruling in Kendall using the take care clause as basis to prevent the President from stopping the implementation of a ministerial duty that Congress imposed.
On the flipside, the take care clause has likewise been used to invalidate laws that rob the President of his powers of control and supervision over the Executive. In Buckley v. Valeo,[13] for instance, the US Court held that the Congress cannot arrogate unto itself the power to appoint officials to an independent commission that exercises executive powers. The reason for this ruling is the President's duty to ensure that the laws are faithfully executed.
While the two functions of the take care clause in US jurisprudence could at times seem to conflict with each other (one imposes a duty on the President, the other recognizes his authority)[14] it has never been used to question the manner by which the President's executive power is exercised.
Notably, the President's duty to implement laws under the take care clause is judicially enforceable only where the statute in question provides a clear and categorical directive to the President. Where a statute leaves to the executive the details of its implementation, the latter should be given sufficient leeway in exercising its duty.
In sum, the petitioners' insistence that the burial order's violation of various laws amounts to a constitutional violation involving the faithful execution clause, rests on a very tenuous interpretation of this clause that stretches it to its breaking point. The faithful execution clause does not allow litigants to question - as a constitutional violation - the manner by which the President implements a law. The Court, for its part, has no authority to directly resolve the alleged statutory violations that, in this case, allegedly attended the burial order.
The burial order does not violate international law obligations.
The petitioners' international law arguments, in my view, likewise fail to establish the unconstitutionality of the President's burial order.
The petitioners argue that the burial order violates several international law obligations, based on the Philippines' status as a signatory to the Universal Declaration of Human Rights (UDHR), the International Covenant for Civil and Political Rights (ICCPR), the Rome Statute, and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
While I agree that these international agreements (except for the UDHR, which is a non-binding document with provisions attaining the status of customary international law) had been ratified by the Philippine government and hence have the force and effect of law in the Philippines, the petitioners failed to point to any specific treaty obligation prohibiting Marcos' burial at the LNMB or at any other public cemetery.
These treaties prohibit torture or cruel, inhuman or degrading treatment or punishment,[15] and recognize these acts as crimes against humanity[16] falling within the jurisdiction of the International Criminal Court.[17] State parties to CAT are likewise obliged to criminalize torture and take effective legislative, administrative, judicial, and other measures to prevent torture.[18] Parties also have the obligation to investigate claims of torture[19] and ensure that torture victims have an enforceable right to fair and adequate compensation.[20]
Article 14 of the CAT, in particular, requires state parties to "ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation."
The petitioners assert that the burial order amounts to a state sanctioned narrative that violates the Philippines' duty to provide a "full and effective reparation" for human rights violations victims. The petitioners cite as legal bases Principle 22 and Principle 23 of the Basic Principles and Guidelines on the right to a remedy; Reparation for Victims of Gross Violations of International Human Rights Law (IHRL); Serious Violations of International Humanitarian Law (IHL); and Principle 2 and Principle 3 of the Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity.
These principles, however, do not create legally binding obligations. They are not international agreements that states accede to and ratify, as states have not agreed to formally be bound by them. Declarations, principles, plans of action and guidelines are considered "soft law" because they do not bind states, although they may carry considerable political and legal weight. They are considered statements of moral and political intent that, at most, may subsequently ripen into international norms.[21]
Paragraph 7 of the Preamble of The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law (IHRL), for instance, does not create new international or domestic legal obligations, viz:
Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms,That these principles do not create obligation legally binding on the State means that they cannot be interpreted as constraints on the discretion of the President who acts, not only as the government's chief executive, but as its chief architect in foreign affairs.
Without any specific and legally binding prohibition limiting the President's actions, no basis exists to nullify his order and to disregard the presumption of regularity that exists in the performance of his duties.
Lastly, it must be considered that the burial order does not have the effect of rewriting jurisprudence and excusing the ills of the Marcos administration; neither does it amend Republic Act No. 10368 ("Human Rights Victims Reparation and Recognition Act of 2013"), a law that had been enacted as part of the Philippines' compliance with its obligations in the ICCPR and CAT.
RA 10368, among others, creates a Human Rights Victims Claims Board tasked to recognize victims of human rights violations and to recommend their claims for reparation. RA 10368 even recognizes the "heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance, and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986." The law makes it a policy to "restore the victims' honor and dignity" and acknowledge the State's moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations, and damages they suffered under the Marcos regime.
These terms and provisions, however, while critical of the Marcos regime hardly amount to a prohibition barring the interment of his remains in a resting place duly reserved by law for soldiers; former President Marcos indisputably was a soldier during his lifetime and was one long before the human rights violations attributed to him took place. To deny him now, despite the law entitling him to a LNMB resting place, may only lay the petitioners to the charge that they are now doing to another what they have accused former President Marcos of doing - denying another of the rule of law.
Divining the spirit of the Constitution is acceptable only to clarify ambiguities in its provisions, and not to create entirely new provisions.
a. The Spirit of the 1987 Constitution
The petitioners further argue that Marcos' interment at the LNMB violates the spirit of the 1987 Constitution which was crafted as a reaction to the abuses during the Marcos regime. Limitations and restrictions to the President's power, in particular, had been introduced because of former President Marcos' abuses during his regime. Thus, to inter him at the LNMB would amount to a violation of the reasons underlying the Constitution.
In particular, the petitioners assert that former President Marcos' burial at the LNMB violates two other principles enshrined in the 1987 Constitution: first, it violates Section 27, Article II of the Constitution as the burial of a dishonest and disgraced public official will not promote honesty and integrity in public service; second, it violates Section 1, Article XI of the Constitution[22] because it goes against the precept that corruption is never forgotten.
Constitutional provisions, read by themselves for the principles and precepts they embody, hardly reveal the clear intents that drove the constitutional framers to incorporate these provisions in the Constitution. These intents, however, are neither lost nor hidden as they can be gleaned from the deliberations of the Constitutional Commission which drafted the Constitution.
In this Court, we use and have used these deliberations as guides to interpret the Constitution when there exist ambiguous or seemingly conflicting provisions crucial to the resolution of a case. We look to these deliberations to find the intent behind the constitutional provisions to clarify how they should be applied.
While constitutional intent serves as a valuable guide in undertaking our adjudicatory duties, it does not embody a right and, by itself, is not a basis for the enforcement of a right. Neither does it provide a standard on how the President should act and enforce the laws, without prior reference to specific provisions or legislations applying the intent of the Constitution.
In the context of the present petitions, without any specific provision alleged to have been violated by the burial order, the constitutional intents that the petitioners brought to light cannot be used as a measure to resolve the issues that bedevil us in these cases. Specifically, they cannot be used as basis to determine the existence of grave abuse of discretion under the Court's expanded jurisdiction. As we have done by long established practice, we rely on intent only to settle ambiguities that cross our paths in the course of reading and considering constitutional provisions.
To go to the concrete and the specific demands of the issues at hand, we cannot use the faithful execution clause as basis to question the manner by which the Executive implements a law.
Neither can we interpret Article II, Section 27 and Article XI, Section 1 to prohibit former President Marcos' interment at the LNMB. To be sure, these are provisions that cannot be faulted as they enshrine honesty, integrity, and accountability in the public service, and require government officials to exercise their functions "with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives."
Despite their high minded terms, however, these provisions can hardly be claimed as basis, in the absence of clear and concrete legislation embodying actionable standards, for the petitioners' claims; these provisions can only describe our aspirations for our government and government officials, and could not have been meant to dilute the President's prerogatives in making his political moves, among them, his decision on the interment of a previously deposed president.
It should be noted, too, that Article II, Section 27 does not appear to be a self-executing provision. Its location, i.e., under Article II, Declaration of State Principles, strongly hints of its non-self-executing[23] nature. The language itself of the provision obligates the State to "take posttlve and effective measures against graft and corruption." Under these terms and circumstances, this provision merely reflects a statement of an ideal that cannot be realized independently of a concrete congressional enactment. Its goal of maintaining honesty and integrity in the public service cannot likewise be implemented without laws defining and promoting these values.
b. No Express Constitutional Bar to Interment
The Constitution was undeniably forged out of the ashes of the Marcos regime. Its enactment after the Marcos regime collapsed, however, does not suggest and cannot be translated into an implied command preventing his burial at the LNMB or in a shrine of national significance. Had such prohibition been the intent, the Constitution's transitory provisions would have specifically so provided in the manner these provisions incorporated terms that the framers wanted to implement within intended and foreseeable time frames.[24]
c. Historical Perspectives
Unfortunately, both in the pleadings and in the media, the Court majority has been accused of being quick to forget the lessons of the Martial Law Era. I see no point in directly answering this charge as this Opinion has not been written to consider historical perspectives except to the extent that they bear on the immediate business an concern of the Court the interpretation and application of the Constitution.
The Court, of course, is not blind to history but is not a judge of history; it is a judge of the interpretation and application of the terms of the Constitution.[25] When the time comes therefore when we are tested by push and pull of history and those of the Constitution, an answer is not difficult to make even if we are dealing with an exceptional historical figure.
The clear and simple response is that concerns raised by the Constitution must first be addressed; historical considerations follow unless the constitutional concern is so affected or intertwined with history that we cannot consider one without the other. Fortunately for us in the present case, no such consideration requires to be taken as the way is clear: we rule based on the standards of our Constitution.
Based on these considerations, I believe we should not be charged with being blind to the lessons of the past, in partic;ular of what transpired during the martial law era. Rather than being blind, we simply do not look first to history in resolving disputes before us; we look to the law as our primary guide and consideration.
Thus, if we do rule in favor of the burial of former President Marcos at the LNMB, we do not thereby dishonor those who believe they suffered under his regime. Nor are we unmindful of the laws crafted in their favor; we considered these laws but they are simply not the laws primarily relevant and applicable to the issue before us - the interment of former President Marcos at the LNMB.
d. Considerations of Policy
I do know as a matter of law and history that the framers of our Constitution crafted it with the intent of preventing another tyrant from rising to power and from consolidating the State's might for himself. A stronger tripartite government with a system of checks and balances became the cornerstone of our new democracy. Under this system, each of the three branches of government perform specific, distinct, and clearly delineated functions. The intent is to prevent one branch from encroaching on the prerogatives of another and to characterize any usurpation as an act of tyranny. These constitutional principles are the policies that receive primary consideration from us as a Court.
The Constitution vested the Supreme Court with judicial power the power and duty to settle actual controversies involving rights which are legally demandable and enforceable, and 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. Considering that Justices of this Court are not elected by the sovereign people, the framers did not see it fit to give us dominion over matters of policy.
From these perspectives, this Court is clearly not a court of public opinion; we are court of law. With respect to matters of policy, we have no right to substitute our wisdom over that of duly elected political branches. They carry the mandate of the popular will we do not.
Under the impetus of these constitutional realities, the wisdom of or need for the interment of former President Marcos at the LNMB is a political question[26] that our President decided after an assessment of the thoughts and sentiments of the people from all the regions in our country; it is a policy determination that is outside the Court's jurisdiction to pass upon or interfere with as a matter of law.
Separately from our consideration of the Executive and its policy, we are also aware that strong sentiments exist against the burial of former President Marcos at the LNMB. We hear the loud and strident voices that proclaim these sentiments. But we are likewise aware that against the pull by those who voice these sentiments are counterforces pulling into other directions, specifically, the pull of the law and those of policy.
As I have already indicated, I again say that the law must prevail under the unwavering standard we observe. But we recognize at the same time that policy has its own demands. Ultimately, we recognize that vowing to the raucous crowd may temporarily signify harmony, but we do so at the expense of disregarding Executive policy and weakening the political branches, and indeed, the very institution of government itself.
Thus, we have no choice if we are to truly serve as guardians of the Constitution. In the absence of any countervailing legal considerations, we give primacy to the Executive's policy as this is the law - the constitutional separation of power - that we have to fully respect.
As my last point, that the burial of Marcos had been a campaign promise strengthens the nature of former President Marcos' burial at the LNMB as a political question. Voters knew of his plan to bury Marcos at the LNMB at the time he campaigned, and might have voted for him because or regardless of this plan. President Duterte's victory in the polls signifies, at the very least, the electorate's tolerance of his decision and, at most, the electorate's support.
In sum and without hesitation, we must now recognize that the petitioners have failed to establish any clear constitutional breach attendant to the President's burial order. We must therefore respect and abide by the Executive's decision to allow the interment of former President Marcos at theLNMB.
WHEREFORE, I vote to DISMISS the petitions, and to lift the status quo ante order this Court issued to avoid rendering the petitions moot and academic prior to our decision.
[1] AFP Regulations G 161-373 Allocation of Cemetery Plots at the LNMB, issued on 9 April 1986 by then AFP Chief of Staff General Fidel V. Ramos and then President Corazon Aquino.
[2] An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes, and Pantheon for Presidents of the Philippines, National Heroes, and Patriots of the Country, 16 June 1948. "Section 1: To perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn. x x x" (Emphasis by petitioner)
[3] Human Rights Victims Reparation and Recognition Act of 2013.
[4] Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009. Note, at this point, that judicial review is an aspect of judicial power, which the Constitution defines as the power to "settle actual controversies involving rights which are legally demandable and enforceable"; thus the Court necessarily exercises judicial power when engaging in judicial review, but not all exercises of judicial power includes, or needs, the exercise of the judicial review power. Judicial review, when approached through the traditional route, requires the existence of four requirements, viz: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.
[5] Under the principle of hierarchy of courts, direct recourse to this Court is improper because the Supreme Court is a court of last resort and must remain to be so in order for it to satisfactorily perform its constitutional functions, thereby allowing it to devote its time and attention to matters within its exclusive jurisdiction and preventing the overcrowding of its docket. Republic of the Philippines v. Caguioa, G.R. No. 174385, February 20, 2013
[6] The doctrine of primary jurisdiction holds that if a case is such that its determination requires the expertise, specialized training and knowledge of an administrative body, relief must first be obtained in an administrative proceeding before resort to the courts is had even if the matter may well be within their proper jurisdiction. It applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative agency. In such a case, the court in which the claim is sought to be enforced may suspend the judicial process pending referral of such issues to the administrative body for its view or, if the parties would not be unfairly disadvantaged, dismiss the case without prejudice. Euro-med Laboratories Phil v. Province of Batangas, G.R. No. 148106, July 17, 2006.
[7] The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. Republic v. Lacap, G.R. No. 158253, March 2, 2007, 517 SCRA 255, 265.
[8] In Sanalakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, for instance, the Court noted:
In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R. Cortes, proposed that the Philippine President was vested with residual power and that this is even greater than that of the U.S. President. She attributed this distinction to the "unitary and highly centralized" nature of the Philippine government. She noted that, "There is no counterpart of the several states of the American union which have reserved powers under the United States constitution." Elaborating on the constitutional basis for her argument, she wrote:
.... The [1935] Philippine [C]onstitution establishes the three departments of the government in this manner: "The legislative power shall be vested in a Congress of the Philippines which shall consist of a Senate and a House of Representatives." "The executive power shall be vested in a President of the Philippines." The judicial powers shall be vested in one Supreme Court and in such inferior courts as may be provided by law. These provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive, and judicial powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, "a grant of legislative power means a grant of all the legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government." If this is true of the legislative power which is exercised by two chambers with a combined membership [at that time] of more than 120 and of the judicial power which is vested in a hierarchy of courts, it can equally if not more appropriately apply to the executive power which is vested in one official - the president. He personifies the executive branch. There is a unity in the executive branch absent from the two other branches of government. The president is not the chief of many executives. He is the executive. His direction of the executive branch can be more immediate and direct than the United States president because he is given by express provision of the constitution control over all executive departments, bureaus and offices.55
The esteemed Justice conducted her study against the backdrop of the 1935 Constitution, the framers of which, early on, arrived at a general opinion in favor of a strong Executive in the Philippines."56 Since then, reeling from the aftermath of martial law, our most recent Charter has restricted the President's powers as Commander-in-Chief. The same, however, cannot be said of the President's powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's
... 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.57 [Underscoring supplied. Italics in the original.]
[9] See de Leon v. Carpio, G.R. No. 85243, October 12, 1989, 178 SCRA 457, Blaquera, et. al. v. Alcasid, G.R. No. 109406, September 11, 1998.
[10] See Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000, 336 SCRA 201, Taule v. Santos, Dadole et. al. v. COA, G.R. No. 90336, August 12, 1991, 200 SCRA 512.
[11] See Todd Garvey, The Take Care Clause and Executive Discretion in the Enforcement of Law, September 4, 2014, available at https://www.fas.org/sgp/crs/misc/R43708.pdf.
[12] 37 U.S. 524 (1838).
[13] 424 U.S. 1 (1970).
[14] Supra note 6.
[15] Article 7 of the ICCPR provides:
Article 7 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
[16] Article 7, Section 1, (g) of the Rome Statute.
[17] Article 5, Section 1 (b) of the Rome Statute.
[18] Article 2, CAT.
[19] Article 12 and 13, CAT.
[20] Article 14, CAT.
[21] See The International Council on Human Rights Policy, Human Rights Standards: Learning from Experience, (2006) pp. 11, 14-18, available at http://www.ichrp.org/files/reports/31/120b_report_en.pdf
[22] "Public office is a public trust. x x x"
[23] In Manila Prince Hotel v. GSIS, G.R. No. 122156, February 3, 1997, the Court has distinguished between self-executing and non-self-executing provisions of the Constitution, viz:
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action.
[24] The transitory provisions, for example, specifically laid down the rule that after the expiration of the Military Bases Agreement, military bases, troops and facilities shall not be introduced into the Philippines except through a treaty concurred in by the Senate.
[25] Gudani v. Senga Corona, G.R. No. 170165, August 15, 2006.
[26] A political question refers to "those questions which, under the Constitution, are to be decided by the people in theic soveceign capacity, or in regard to which full disccetionacy authocity has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure." Tañada v. Cuenco, G.R. No. L-10520, February 28, 1957.
SEPARATE OPINION
MENDOZA, J.:
The Court should not take sides in this political controversy.
The questions being truly political, there is simply no justiciable controversy. Hence, the petitions should be dismissed.
Ferdinand Edralin Marcos (President Marcos) was not, and will never be, a hero. His interment in the Libingan Ng Mga Bayani (LNMB) will not erase the atrocities committed during his authoritarian rule. His place in history will ultimately be judged by the people.
His worthiness as a hero, however, is not the issue at hand. The current controversy revolves around the decision of the administration of President Rodrigo Roa Duterte (President Duterte) to allow the burial of the remains of President Marcos in the LNMB in the exercise of his discretion as Chief Executive.
In the course of his campaign for the May 2016 national elections, President Duterte promised to have the remains of the late president buried in the LNMB as a step towards national conciliation or healing. After winning the elections, he followed through on his campaign promise. Pursuant thereto, the public respondents began to take steps to implement his verbal order.
Herein petitioners, majority of whom are either victims or kin of victims of human rights violations committed during the regime of the deposed dictator, assert that the interment is contrary to the Constitution, laws and regulations, and international law. The petitioners claim that a recognized dictator, plunderer and human rights violator has no place in the LNMB, which is reserved for persons who are worthy of emulation or a source of inspiration.
Issues involved are truly political questions which are non-justiciable
The Court has refused to take cognizance of cases which do not present any justiciable controversy, such as when the issue presented is a truly political question. In the landmark case of Tañada v. Cuenco,[1] the Court expounded on the concept of political question, viz:
As already adverted to, the objection to our jurisdiction hinges on the question whether the issue before us is political or not. In this connection, Willoughby lucidly states:It is true that under the present constitutional milieu, the scope of judicial power has been expanded. Under Section 1, Article VIII of the Constitution, "[j]udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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 government.""Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers.x x x
In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. [Emphases supplied]
The expanded judicial power bestowed by the Constitution is an offshoot of the prevalence, during the Marcos regime, of invoking the political question doctrine every time government acts were questioned before the courts. The present Constitution, thus, empowered the courts to settle controversies if there would be grave abuse of discretion.
Notwithstanding the expanded power of the courts, the political question doctrine remains operative. The present provision on judicial power does not mean to do away with the political question doctrine itself, and so "truly political questions" are still recognized.[2] In Francisco v. HRET,[3] the Court explicitly recognized the political question doctrine and explained how the same was determined:
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with truly political questions. From this clarification it is gathered that there are two species of political questions: (1) truly political questions and (2) those which "are not truly political questions."Thus, a political question will not be considered justiciable if there are no constitutionally imposed limits on powers or functions conferred upon the political bodies.[5] Nonetheless, even in cases where matters of policy may be brought before the courts, there must be a showing of grave abuse of discretion on the part of any branch or instrumentality of the government before the questioned act may be struck down. "If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide."[6] "We cannot, for example, question the President's recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people."[7]
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature.
x x x
Section 1, Article VIII of the Constitution does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr attempts to provide some:. . . Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits.[4] X x x.[Emphases and underscoring supplied]
Guided by the foregoing, it is my considered view that the decision of President Duterte to allow President Marcos to be interred in the LNMB is beyond the ambit of judicial review.
Interment of President Marcos in the LNMB is a discretionary act of President Duterte
Executive power is vested in the President of the Philippines.[8] Inherent in the executive power is the duty to faithfully execute the laws of the land and is intimately related to the other executive functions.[9] Section 17, Article VII of the Constitution[10] embodies the faithful execution clause. The Executive is given much leeway in ensuring that our laws are faithfully executed.[11] Thus, any act pursuant to the faithful execution clause should be deemed a political question as the President is merely executing the law as it is. There is no question as to the legality of the act but on its wisdom or propriety.
Indeed, the duty to execute the laws of the land is not discretionary on the part of the President, in the same manner that it is not discretionary on the part of the citizens to obey the laws. In Spouses Marquez v. Spouses Alindog,[12] the Court drew a fine line between a discretionary act and a ministerial one.
A clear line demarcates a discretionary act from a ministerial one. Thus:The President may also exercise his judgment in the manner of implementing the laws. For as long as he faithfully executes the law, any issue on the wisdom or propriety of his acts is deemed a political question.
The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment. [Emphasis and underscoring supplied]
Moreover, the authority of President Duterte to allow the interment of President Marcos in the LNMB is derived from the residual powers of the executive. In the landmark case of Marcos v. Manglapus,[13] the Court had expounded on the residual powers of the President, to wit:
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. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President].To reiterate, President Duterte's rationale in allowing the interment of President Marcos in the LNMB was for national healing, reconciliation and forgiveness amidst our fragmented society, so that the country could move forward in unity far from the spectre of the martial law regime.
More particularly, this case calls for the exercise of the President's powers as protector of the peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquillity in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. [Emphases and underscoring supplied]
To this, however, the petitioners vehemently disagree. Thus, in their petitions, they challenge the wisdom of the decision of the President. They bewail, and understandably so, that Marcos was not a hero who deserved to be buried in the hallowed grounds of the LNMB. They view him as not worthy of being buried alongside those who were true heroes, as they hold him responsible for the illegal detention, arrest, torture, disappearances, and summary executions of those who opposed his regime.
The Court should not comment on those points for now. It is not unaware of the sufferings of the victims of human rights during martial law. The Court, however, should defer exercising jurisdiction when the acts of the State are challenged based on their wisdom or propriety. It should be stressed, however, that the interment of President Marcos in the LNMB will not bestow upon him the title of a hero. It will not erase from the memories of the victims what have been etched in their minds - that President Marcos was a heartless dictator and rapacious plunderer of our national economy and patrimony.
No Grave Abuse of Discretion
Granting that the discretionary act of President Duterte was covered by the expanded scope of judicial power, the petitions would still lack merit. There is absolutely no showing that the acts of the public respondents are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.
Grave abuse of discretion is a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility.[14]
In the situation at hand, no grave abuse of discretion is manifest as there is no violation of any constitutional provision or law. In fact, the public respondents were guided by, and complied with, the law. Under AFP Regulation G 161-375, the following are eligible for interment in the LNMB:
In the absence of any law to the contrary, AFP Regulation G 161-375 remains to be the sole legal basis in determining who are qualified to be buried in the LNMB.
- Medal of Valor Awardees;
- Presidents or Commanders-in-Chief;
- Secretaries of National Defense;
- Chiefs of Staff;
- General/Flag Officers of the AFP;
- Active and retired military personnel of the AFP to include active draftees and trainees who died in line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities;
- Former members of the AFP who laterally entered or joined the PCG and the PNP;
- Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerrillas;
- Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress, or the Secretary of National Defense; and
- Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National defense and Chief of Staff.
When the public respondents based their decision on the applicable laws and regulations, they cannot be said to have committed grave abuse of discretion. Besides, it is not for the Court to determine who is worthy of inspiration or emulation.
It is true that the present Constitution was crafted to prevent the occurrence of abuse prevalent during the Marcos Regime. This is evident in numerous provisions of the Constitution such as the Bill of Rights and the provisions under the Executive Department limiting the power to declare Martial Law. Nevertheless, the Constitution neither expressly nor impliedly prohibits the interment of President Marcos in the LNMB.
Moreover, the decision to allow the interment of President Marcos in the LNMB is not contrary to R.A. No. 289 and R.A. No. 10368. As explained by the public respondents, the National Pantheon mentioned in R.A. No. 289 was quite different from the LNMB. As such, the standards claimed by the petitioners in R.A. No. 289 are not applicable to the LNMB.
Likewise, the interment of President Marcos in the LNMB is not repugnant to the avowed policy of R.A. No. 10368, which seeks to recognize the heroism of human rights violation victims (HRVV) during martial law. First, R.A. No. 10368 neither expressly nor impliedly prohibits his burial in the LNMB. Second, his interment is not incongruous with honoring HRVVs considering that the burial is not intended to confer upon him the title of a hero. Third, the State can continue to comply with its obligation under R.A. No. 10368 to provide recognition and reparation, monetary or non-monetary, to the HRVVs, notwithstanding his burial in the LNMB.
A Final Note
Lest it be misunderstood, the Court is not passing judgment on whether President Marcos truly deserves to be buried in the LNMB. It is merely exercising judicial restraint as the issues at hand are truly political in nature and, therefore, are best left to the discretion of the President.
The Court sympathizes with the HRVVs and acknowledges the harrowing ordeals they suffered in the hands of government forces during martial law. The stigma left by the martial law regime will never be forgotten by the Filipino people and the burial of President Marcos in the LNMB will not re-write history.
On the matter, however, the Supreme Court should not have a hand. It should not resolve the issues in this truly political controversy.
Accordingly, I vote to dismiss these petitions and move on.
[1] G.R. No. L-10520, February 28, 1957.
[2] Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003).
[3] 460 Phil. 830 ((2003).
[4] Id. at 910-912.
[5] The Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015.
[6] Marcos v. Manglapus, 258 Phil. 479, 506-507 (1989)
[7] Id. at 506.
[8] Section 1, Article VII of the Constitution.
[9] Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January 12, 2016.
[10] The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
[11] Biraogo v. The Philippine Truth Commission, 651 Phil. 394, 449 (2010).
[12] G.R. No. 184045, January 22, 2014.
[13] 258 Phil. 479, 504-505 (1989).
[14] Intec Cebu, Inc., v. CA, G.R. No. 189851, June 22, 2016.
These consolidated special civil actions (variously seeking the writs of certiorari, mandamus and prohibition)[1] concern the question of whether or not the Chief Executive, in verbally authorizing the interment of the remains of the late President Ferdinand E. Marcos in the Libingan ng mga Bayani (LNMB), gravely abused his discretion.
I CONCUR with the MAIN OPINION so eruditely penned for the Majority by Justice Diosdado M. Peralta. I hereby only express my reasons for voting to dismiss the petitions, and thus to allow the interment to proceed.
President Rodrigo Roa Duterte was sworn to office and assumed the Presidency at noontime of June 30, 2016. In his campaign for the Presidency, he had promised, among others, that if elected he would authorize the interment of the remains of the late President Marcos in the LNMB. To deliver on this promise, he verbally directed Secretary Delfin N. Lorenzana of the Department of National Defense (DND) on July 11, 2016 to prepare the groundwork for the interment. Secretary Lorenzana thus issued on August 7, 2016 the assailed Memorandum directing General Ricardo R. Visaya, Chief of Staff of the Armed Forces of the Philippines (AFP), to "kindly undertake the necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security requirements" for the interment, and to "[c]oordinate closely with the Marcos family regarding the date of interment and the transport of the late former President's remains from Ilocos Norte to the LNMB." In turn, General Visaya commanded Deputy Chief of Staff of the AFP Rear Admiral Emesto C. Enriquez to implement the Memorandum, and this Rear Admiral Enriquez did by transmitting on August 9, 2016 his own directive to the Commanding General of the Philippine Army to proceed with the interment and to provide "all necessary military honors accorded for a President."
These events expectedly invited protests from various sectors. The petitioners herein then initiated these consolidated special civil actions in this Court to advance a common cause to prevent the interment of the remains of President Marcos in LNMB because of the many human rights violations committed during his long regime that included the period when he placed the whole country under Martial Law. They mainly insisted that interring the remains of President Marcos in the LNMB would desecrate the shrine that was intended only for heroes.
The following should explain my vote.
First of all, the foregoing antecedents render it quite evident to me that the interment of the remains of President Marcos in the LMNB is a matter that exclusively pertains to the discretion of President Duterte as the Chief Executive. The character of the LMNB as the resting place for the war dead and other military personnel under the care and control of the AFP has placed the LMNB under the control of the President. Plainly enough, the President thereby exercised such control through the AFP Chief of Staff.
In the context of the LNMB being a military facility, the AFP has issued AFP Regulations G 161-375 to prescribe guidelines that enumerate the persons whose remains may be interred therein, to wit:
Based on the foregoing, the exercise by President Duterte of his discretion upon a matter under his control like the interment of the remains of President Marcos in the LNMB is beyond review by the Court. He has not thereby transgressed any legal boundaries. President Marcos being a former President of the Philippines, a Medal of Valor awardee, a veteran of World War II, a former Senator and Senate President, and a former Congressman is one of those whose remains are entitled to be interred in the LNMB under the terms of AFP Regulations G 161-375. President Duterte was far from whimsical or arbitrary in his exercise of discretion. I believe that interment of any remains in the LNMB is a political question within the exclusive domain of the Chief Executive. The Court must defer to his wisdom and must respect his exercise of discretion. In other words, his directive to Secretary Lorenzana is unassailable.
- Medal of Valor Awardees
- Presidents or Commander-in-Chief, AFP
- Secretaries of National Defense
- Chiefs of Staff, AFP
- Generals/Flag Officers of the AFP
- Active and retired military personnel of the AFP to include active draftees and trainees who died in the line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities.
- Former members of the AFP who laterally entered or joined the Philippine Coast Guard (PCG) and the Philippine National Police (PNP).
- Veterans of Philippine Revolution of 1890, WWI, WWII, and recognized guerillas.
- Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinternment has been approved by the Commander-in-Chief, Congress or the Secretary of National Defense.
- Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff are authorized to be interred at the LNMB.
I must observe that the factual milieu in these cases is different from that in the case in which the Court addressed and decided the question of whether or not the President of the Philippines had validly acted in prohibiting the return of the family of President Marcos to the country. In the latter case, the Court ruled that when political questions were involved, the Constitution limited the determination to whether or not grave abuse of respondent public official.[2] The foremost consideration then was that the return of the Marcoses could dangerously impact on the nation's peace and security. That impact is not imminent today.
Secondly, the several laws the petitioner have invoked to prevent the interment are not relevant to the LNMB. The main opinion fully explains why this is so. I agree.
For instance, Republic Act No. 289, which all the petitioners except the petitioners in G.R. No. 226120 rely upon, stipulated the establishment of the National Pantheon as the final resting place for former Presidents of the Philippines, national heroes and patriots to perpetuate their memory as sources of inspiration and emulation for the future generations. On the basis of this law, the petitioners concerned quickly assert that the remains of the late President Marcos do not deserve to be interred in the LNMB because his gross human rights violations, massive corruption and plunder of the government coffers, and other abuses during his regime rendered his memory unworthy of perpetuation and because he could not be a source of inspiration and emulation for future generations. Yet, the Solicitor General has clarified that the LNMB is not the National Pantheon referred to by Republic Act No. 289. Indeed, Proclamation No. 431 (Reserving as Site for the Construction of the National Pantheon a Certain Parcel of Land Situated in Quezon City) would locate the National Pantheon in East Avenue, Quezon City, but the establishment of the National Pantheon was later on discontinued. In contrast, the LNMB is the former Republic Memorial Cemetery as expressly provided in Executive Order No. 77 (Transferring the Remains of War Dead Interred at Bataan Memorial Cemetery, Bataan Province and at the Other Places in the Philippines to the Republic Memorial Cemetery at Port WM MicKinley, Rizal Province). The Republic Memorial Cemetery was reserved as the final resting place for the war dead of World War II, but President Magsaysay renamed it to LNMB on October 27, 1954. The history of the LNMB refutes the petitioners' reliance on Republic Act No. 289. Verily, the LNMB is not the same as the National Pantheon.
Republic Act No. 10368 has also been cited by the petitioners. This law recognizes the victims of Martial Law and makes reparations for their sufferings by appropriating P10,000,000,000.00 as compensation for them. How such law impacts on the interment of the remains of President Marcos has not been persuasively shown.
The petitioners have not laid out any legal foundation for directly testing the issuance of the challenged executive issuances. They have not cited any specific provision of either the Constitution or other existing laws that would expressly prohibit the interment in the LNMB of the remains of one like President Marcos.
And, thirdly, AFP Regulations G 161-375 lists those who are disqualified to have their remains interred in the LNMB, to wit:
a. Personnel who were dishonorably separated/reverted/discharged from the service.None of the disqualifications can apply to the late President Marcos. He had not been dishonorably separated or discharged from military service, or convicted by final judgment of any offense involving moral turpitude. The contention that he had been ousted from the Presidency by the 1986 People Power revolution was not the same as being dishonorably discharged because the discharge must be from the military service. In contrast, and at the risk of being redundant, I remind that he had been a two-term President of the Philippines, a Medal of Valor awardee, a veteran of World War II, a former Senator and Senate President, and a former Congressman, by any of which he was qualified to have his remains be interred in the LNMB.
b. Authorized personnel who were convicted by final judgment of an offense involving moral turpitude.
[1] G.R. No. 225973, G.R. No. 226117,and G.R. No. 226120 are petitions for certiorari and prohibition; G.R. No. 225984 and G.R. No. 226097 are petitions for prohibition; and G.R. No. 226116 prays for the issuance of the writs of mandamus and prohibition.
[2] Marcos v. Manglapus, G.R. No. 88211 September 15, 1989, 177 SCRA 668, 696.
The factual and procedural antecedents are not in dispute.
On 25 February 1986, during the snap election term of Ferdinand Marcos Sr., the EDSA People Power Revolution transpired. With US aid, the Former President, together with his family, was forced into exile. On 28 September 1989, he died in Honolulu, Hawaii. Two weeks before his death, the Supreme Court upheld then sitting President Corazon Aquino's firm decision to bar the return of the Marcos family.[1] 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."[2]Pursuant to a written agreement executed between the Philippine Government, then represented by Former President Fidel V. Ramos, and the Marcos family, the remains of the late strongman was returned to the Philippines on 5 September 1993. The mortal remains of Former President Marcos was allowed to be returned to the Philippines, under the following conditions:
The Former President was eventually interred in a Mausoleum, with his remains currently kept in a refrigerated crypt in Batac, Ilocos Norte.
- The body of President Marcos would be flown straight from Hawaii to Ilocos Norte province without any fanfare;[3]
- President Marcos would be given honors befitting a major, his last rank in the AFP;[4] and
- The body of President Marcos will be buried in Ilocos.[5]
During his campaign for president in the 2016 national elections, candidate Rodrigo R. Duterte publicly declared that he will cause the burial of the former President in the Libingan ng mga Bayani (LNMB). After his election as president, President Rodrigo R. Duterte ordered the implementation of his campaign declaration. On 11 July 2016, President Duterte verbally directed Marcos' burial in the LNMB. In compliance with the verbal order, Secretary of National Defense Delfin N. Lorenzana issued a Memorandum dated 7 August 2016, addressed to General Ricardo R. Visaya, Chief of Staff of the AFP, directing him to "undertake the necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security requirements"[6] and to "coordinate closely with the Marcos family regarding the date of interment and the ransport of the late former President's remains from Ilocos Norte to the LNMB."[7] Conforming to the 7 August 2016 Memorandum, AFP Chief of Staff General Visaya instructed Deputy Chief of Staff for Reservist and Retiree Affairs Rear Admiral Ernesto C. Enriquez to issue a directive addressed to the Philippine Army.[8] According to the 9 August 2016 Directive, the Army is required to provide vigil, bugler/drummer, firing party, military host/pallbearers, escort and transportation, and arrival and departure honors.[9]
Five different petitions, praying for a Temporary Restraining Order to restrain respondents from proceeding with the burial were filed and consolidated. Petitioners likewise sought the nullification of the 7 August 2016 Memorandum and the 9 August 2016 Directive, and a permanent prohibition from allowing the interment of the remains of Former President Marcos at the Libingan ng mga Bayani.
The first petition (Ocampo petition) was filed on 15 August 2016 by Saturnino C. Ocampo, Trinidad G. Repuno, Bienvenido Lumbera, Bonifacio P. Hagan, Neri Javier Colmenares, Maria Carolina P. Araullo, all of whom alleged that they were human rights violations victims and members of the class suit in the human rights litigation against the Estate of Ferdinand Marcos in MDL No. 840, CA No. 88-0390 in the US Federal District Court of Honolulu, Hawaii. The Samahan ng Ex-Detainees Laban sa Detensyon at Aresto (SELDA), an organization of political prisoners and former political detainees in the country, also took part in the petition.
The second petition (Lagman petition) was also filed on 15 August 2016 by Rep. Edcel C. Lagman, Rep. Teddy Brawner Baguilat, Jr., Rep. Tomasito S. Villarin, Rep. Edgar R. Erice, Rep. Emmanuel A. Billones, and the Families of Victims of Involuntary Disappearance (FIND). The incumbent members of the House of Representatives sued as legislators with duties including the protection of appropriated funds from being misused for void, illegal and improvident activities.
The third petition (Rosales petition) was filed on 19 August 2016 by the former chairperson of the Commission on Human Rights, Loretta Ann Paragas-Rosales; Hilda B. Narciso; Aida F. Santos-Maranan; Jo-Ann Q. Maglipon; Zenaida S. Mique; Fe B. Mangahas; Ma. Cristina P. Bawagan; Mila D. Aguilar; Minerva G. Gonzales; Ma. Cristina V. Rodriguez; Francisco E. Rodrigo, Jr.; Louie G. Crismo; Abdulmari De Leon Imao, Jr.; and Liwayway D. Arce. All the petitioners sued as victims of allegedly State sanctioned human rights violations during Martial Law.
The fourth petition (Alvarez petition) was filed on 22 August 2016 by Former Senator Heherson T. Alvarez; Joel C. Lamangan, a martial law victim; Francis X. Manglapus; Edilberto C. De Jesus; Belinda O. Cunanan; Cecilia G. Alvarez; Rex De Garcia Lores; Arnold Marie Noel Sr.; Carlos Manuel; Edmund S. Tayao; Danilo P. Olivares; Noel F. Trinidad; Jesus Dela Fuente; Rebecca M. Quijano; Fr. Benigno Beltran, SVD; Roberto S. Verzola; Augusto A. Legasto, Jr.; Julia Kristina P. Legasto, all of whom came to court Filipino citizens and tax payers.
The fifth petition (Baniaga petition) was filed on 22 August 2016 by Zaira Patricia B. Baniaga, John Arvin Buenaagua, Joanne Rose Sace Lim, and Juan Antonio, also as Filipino citizens and taxpayers.
The Respondents are Honorable Salvador C. Medialdea, in his capacity as the Executive Secretary of the Republic of the Philippines; Honorable Delfin N. Lorenzana, in his capacity as the Secretary of the Department of National Defense; General Ricardo R. Visaya, in his capacity as Chief of Staff of the Armed Forces of the Philippines; Rear Admiral Ernesto C. Enriquez, in his capacity as Deputy Chief of Staff for Reservist and Retiree Affairs of the Armed Forces of the Philippines; Lt. Gen. Ernesto G. Carolina (Ret.), in his capacity as Administrator of the Philippine Veterans Affairs Office (PVAO); and the heirs of Marcos.
All the contentions espoused by the five petitions pivot around the alleged grave abuse of discretion committed by public respondents when they allowed the burial of the remains of the Former President Marcos at the Libingan ng mga Bayani.
All the petitioners argue that the Memorandum and Directive for the burial mock and are in contravention of Republic Act No. 289 (An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes and Patriots of the Country), which petitioners argue created the Libingan ng mga Bayani. They cite Section 1 of the statute that the purpose of the construction of the National Pantheon is "to perpetuate the memory of all presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn."[10] The petitioners contend that the Former President's transgressions against the Filipino people hardly make him an inspiration and do not make him worthy of emulation by this generation and the next.[11] The petitioners further aver that the public respondents had no authority to allow the burial, considering that only members of the Board of the National Pantheon may cause to be interred therein the mortal remains of all presidents, national heroes, and patriots.[12] The Board is composed of the Secretary of Interior, Secretary of Public Works and Communications, and the Secretary of Education, and two private citizens to be appointed by the President of the Philippines with the consent of the Commission on Appointments.[13]
Petitioners who took part in the Ocampo, Lagman and Rosales petitions maintain that the Memorandum and the Directive are inconsistent with Republic Act No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013), a law which serves as an indubitable validation by the Legislative and Executive departments of the widespread human rights violations attributable to the late President Marcos under his martial law regime.[14] In their petitions, great weight is attributed to Section 2 of the law, which reads:
"x x x [I]t is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime."[15]Thus, for petitioners, allowing the burial is inconsistent with the declared policy of the State. The Lagman Petition in particular, espouses the view that R.A. No. 10368 amended the burial requirements and entitlements issued by the Armed Forces of the Philippines respecting the Libingan ng mga Bayani by excluding the Former President from being interred therein.[16] Similarly, those who took part in the Ocampo and the Lagman petitions assert that a hero's burial at the Libingan ng mga Bayani for the Former President is contrary to public policy, premised on the fact that he committed crimes involving moral turpitude against the Filipino People.[17]
The Ocampo, Rosales, and Alvarez petitions attack the constitutionality of the Memorandum and Directive. Petitioners therein contend that a burial at the Libingan ng mga Bayani will amount to a denial of the history of authoritarian rule and a condonation of the abuses committed by the Marcos Regime.[18] For those who took part in the Rosales petition, burying the Former President at the Libingan ng mga Bayani, a place supposedly for heroes and patriots, is to desecrate the raison d'etre of the 1987 Constitution.[19] That the burial of the Former President at the Libingan ng Bayan runs counter to judicial pronouncements is another argument raised in the Rosales and the Lagman petitions. In support of such argument, judicial decisions of the Philippine Supreme Court, as well as foreign courts, which established the culpability of Former President Marcos for human rights atrocities and plunder were cited.[20]
The Baniaga and the Alvarez petitions advance a related argument, with petitioners therein maintaining that the Memorandum and Directive are violative of the Faithful Execution Clause of the 1987 Constitution.[21] Citing Article VII Section 17 of the Constitution, petitioners argue that President Duterte, acting through his alter ego, respondent Sec. Lorenzana, would not be faithfully executing R.A. No. 10368 and R.A. No. 289 by burying Former President Marcos in the Libingan ng mga Bayani.[22] The Baniaga petition likewise argues that the Memorandum and Directive violate the equal protection guaranteed by the Constitution,[23] given that the Former President is in a different class from the other Presidents already buried in the Libingan ng mga Bayani.
Tackling the issue from a broader perspective, the parties who took part in the Rosales petition maintain that a burial at the Libingan ng mga Bayani violates the international duties of the Philippines to combat impunity and to guarantee non-repetition of violations of international human rights law.[24] Petitioners insist that allowing the burial could potentially hinder and violate human rights victims' remedies and could lead to a distortion of the findings of previous authorities thus, creating an injustice to the victims rightly afforded a remedy from the Former President's actions.[25] For the petitioners, such injustice would put the Philippines in violation of the International Covenant on Civil and Political Rights, specifically Section 2 thereof, viz:
At the core of all the controversy is AFP Regulation G 161-373: Allocation of Cemetery Plots at the LNMB, as amended by AFP Regulation G 161-375. The regulation was issued on 9 April 1986 by then AFP Chief of Staff Fidel V. Ramos and then President Corazon Aquino. The said Regulation provides that the following deceased persons are qualified to be interred in the Libingan ng mga Bayani:
In the same vein, the regulation disallows the interment in the Libingan ng mga Bayani of the following:
- Medal of Valor awardees
- Presidents or commanders-in-chief AFP
- Secretaries of National Defense
- Chiefs of staff, AFP
- Generals/ flag officers of the AFP
- Active and retired military personnel of the AFP
- Former AFP members who laterally entered/joined the Philippine National Police and the Philippine Coast Guard
- Veterans of Philippine Revolution of 1896, World War I, World War II and recognized guerillas
- Government dignitaries, statesmen, national artists and other deceased persons whose interment or re-interment has been approved by the Commander-in-chief, Congress, or the Secretary of National Defense
- Former Presidents, secretaries of defense, CSAFP, generals/flag officers, dignitaries, statesmen, national artists, widows of former presidents, secretaries of national defense and chief of staff
Petitioners who took part in the Ocampo, Rosales, and Baniaga petitions submit that notwithstanding the fact that Ferdinand E. Marcos was a Former President, he is disqualified from being buried in the Libingan ng mga Bayani because he falls under the category of "personnel who were dishonorably separated or discharged from the service".[26] Therein petitioners emphasize that the Former President was deposed and removed from the presidency because of the atrocities he committed during his tenure. Insisting that such facts are matters of judicial notice, petitioners maintain that such removal through revolution is tantamount to being dishonorably separated or discharged from the service, thereby effectively disqualifying him from being buried at the Libingan ng mga Bayani. Alternatively, the Ocampo petition attacks the legality and constitutionality of the AFP Regulation. Petitioners therein submit that the AFP Regulation unduly expands the parameters of R.A. No. 289 by allowing one unworthy to be considered an inspiration and unworthy of emulation by generations to be buried at the Libingan ng mga Bayani.[27]
- Personnel who were dishonorably separated, reverted, and/or discharged from the service
- Authorized personnel who were convicted by final judgment of an offense involving moral turpitude
Finally, for those who took part in the Ocampo, Lagman, and Rosales petitions, even if it be conceded that Former President Marcos is qualified under the law and the AFP Regulation, whatever benefits and courtesies due him have already been waived and contracted away by the Marcos family when they agreed to bury him in Batac, Ilocos Norte pursuant to their agreement with then President Fidel V. Ramos. It was likewise submitted that the 1993 Agreement should be treated as a compromise agreement that was voluntarily entered into by the Philippine Government and the Marcos family, making it the law between the parties.[28] Stated otherwise, petitioners contend that respondents are bound to observe the terms of the Agreement as it is a binding contract between the parties. Petitioners insist that the High Court should take judicial notice of such Agreement as it was an official act of the Executive Department.[29] Moreover, it is averred that an abandonment of the Agreement, a reboot of the entire process, by allowing the burial at the Libingan ng mga Bayani is tantamount to reliving the terror and horrors of the victims.[30]
I join the opinion to dismiss the consolidated petitions for the issuance in their favor and against the respondents, of the special writ of certiorari. President Rodrigo R. Duterte did not gravely abuse his discretion, was neither whimsical nor capricious when upon assumption of the office to which he was elected he forthwith proceeded to implement his election promise to have the remains of the late President Ferdinand E. Marcos buried in the Libingan ng mga Bayani.
This position is fixed and firmed by the ongms of the petitions so impressively presented in the petition itself in G.R. No. 225973:
"10. During the campaign period for the 2016 Presidential Elections then candidate Rodrigo Duterte publicly announced that he will allow the burial of former President Ferdinand Marcos at the Libingan ng mga Bayani. He reiterated this public pronouncement when he became president without giving details on how this will be implemented, leaving the Marcoses to process the same with the proper authorities.As judicial admissions,[31] petitioners state as fact that the burial of former President Marcos as the Libingan ng mga Bayani is a matter about which the Filipino public was consulted as a campaign promise of candidate Duterte who, when he became president redeemed the pledge.
"11. These pronouncements were met with opposition by various sectors including victims or relatives of human rights violations of torture, illegal arrest, arbitrary detention, disappearances and summary executions during martial law. Family members of the thousands who died during martial law also protested these public pronouncements with the hope that the plan will not push through."
Significantly, petitioners further admitted that they, as "the various sectors" participated in the election of options and met with opposition the pronouncements favoring the Libingan as burial of Marcos' remains and protested the public pronouncements of the promisor.
Thus did the petitioners admit that the determination of the issue can be, if not ought to be, left to the will of the people. True to the admission, petitioners sought to forge that will into the shape they hoped for. The petitioners objected against the publicly announced Marcos Libingan burial; they protested the pronouncement. Indeed the issue was made public and was resolved through a most political process, a most appropriate process: the election of the President of the Republic.[32] A juxtaposition of two concepts, people and suffrage, show this. In his treatise, as old as it is respected, Dean Vicente Sinco expounds:
The same meaning, that of all the Citizens considered as a collective unit acting under a majority rule, is given to the term people in an Illinois decision which states that "in a representative government all powers of government belong ultimately to the people in their sovereign corporate capacity." Obviously it is in this sense that the term people is used in the Constitution of the Philippines when it declares in its Article II thus: The Philippines is a republican state. Sovereignty resides in the people and all governmental authority from them.[33]The people or the qualified voters elected as president of the Philippines the candidate who made the election pronouncement, objected to by the persons who are now the petitioners, that he will allow the burial of former President Ferdinand Marcos at the Libingan ng mga Bayani.
x x x x
Suffrage, or the right to vote, is a political right. Different views have been expressed about its nature. One is that it is merely a privilege to be given or withheld by the law-making power in the absence of constitutional limitations. Another view considers it as a natural right included among the liberties guaranteed to 'every citizen in a republican form of government, and may not therefore be taken away from him except by due process of law. A third view maintains that the right of suffrage is one reserved by the people to a definite portion of the population possessing the qualifications prescribed in the constitution. This view is based on the theory that the sovereign political power in a democratic state remains with the people and is to be exercised only in the manner indicated by the constitution. Consequently, a person who belongs to the class to whom the constitution grants this right may not be deprived of it by any legislative act except by due process of law. It is in this sense that suffrage may be understood in the Philippines at present.[34] (Underscoring supplied)
As things are, it is hardly debatable that, by word and deed, petitioners have accepted that the issue they now, after losing the vote, present before the Court is a political issue, defined over and over again, by variations of phrases that have one meaning:
"... What is generally meant, when it is, said that a question is political, and not judicial, is that it is a matter which, is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37N. E. 683,25 L. R. A. 143,42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political question, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to the end that the government may be one of laws and not men'-words which Webster said were the greatest contained in any written constitutional document." (pp. 411, 417; emphasis supplied.).There were ripostes. They were feeble though; and, notably they concern not the political nature of the issue but rather the indications of the electoral response.
In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.[35]
There was reference to the nitpicked significance of "majority" in the definition of "people" the argument being that the 16,601,997 votes in favor of the promising candidate is not the majority of the total number of those who voted for the position. What makes the observation specious is the fact that it was only candidate Duterte who made the serious and specific promise of a Libingan burial for Marcos. The other four candidates for president were unclear about their preference. The votes for the four cannot be definitely counted as against the burial.
Referring to the variety of the electoral issues, there were those who submit that not all those who voted for Duterte did so because they favored the burial of Marcos at the Libingan. It is contended that the votes for Duterte were determined by items in his platform other than the burial issue. That may be plausible; but what cannot be questioned is that Duterte did not lose because of his burial pronouncement.
It was urged that the Libingan allowance was not a commitment to the nation, not a principled promise, a mere propaganda pitch. Thus, was the issue sought to be reduced as a promise made to be broken, treacherous trap for undiscerning electors. That the allegations are unfounded is clearly shown by the prefatory phrase in the memorandum[36] of respondent Secretary of National Defense Delfin N. Lorenzana to respondent Gen. Ricardo R. Visaya, AFP:
In compliance to the verbal order of the President to implement his election campaign promise to have the remains of the late former President Ferdinand E. Marcos be interred at the Libangan ng mga Bayani, kindly undertake the necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security requirements. Coordinate closely with the Marcos family regarding the date of interment and the transport of the late former President's remains from Ilocos Norte to the LNMB.The Marcos internment at Libingan, borrowing the petitioners' words, was a principled commitment which President Duterte firmly believed was so when he offered it to the Filipino voters whom he considered capable of intelligent choice such that upon election he had to "implement his election promise." That, precisely, resulted in the filing of the consolidated petitions before the Court.
The overall OPR for this activity will the PVAO since the LNMB is under its supervision and administration. PVAO shall designate the focal person for this activity who shall be the overall overseer of the event.
Submit your Implementing Plan to my office as soon as possible.
Quite obviously, the petitions were submitted because the petitioners did not prevail in the political exercise that was the National Elections of 2016. Right away, we have the reason why the petitions should be dismissed. The petitions with premises and prayer no different from those that were publicly debated, for or against, between and among the people including petitioners themselves proceeding to a conclusion unacceptable to them, cannot be pursued in lieu of the failed public submission.
Adamant in their position, petitioners nonetheless went to Court with their cause now in legal clothing. Still, petitioners cannot thereby bring the matter within the adjudication of the Court.
There was heavy reference to R.A. No. 10368, titled "An Act Providing for Reparation and Recognition of Victims of Human Rights Violations during the Marcos Regime, Documentations of Said Violations, Appropriating Funds Therefor And For Other Purposes." Notably, the petitioners, as they described themselves, are the same persons for whose favor the statute was enacted; the reasons they mention in their petition consisting of the provisions of the Constitution and of the international agreement are the same reasons mentioned in Section 2 of the statute in the "Declaration Policy." Quite specifically the statute defines "Human Rights Violation" as any act or omission committed during the period from September 21, 1972 to February 25, 1986 carried out pursuant to the declaration of Martial Law by former President Ferdinand E. Marcos including warrantless arrest, ASSO, PCO, PDA, torture, killing, involuntary disappearances, illegal takeover of business, confiscation of property, sexual offenses and "analogous" abuses. And, it is provided that Human Rights Violations Victim (HRVV) refers to a person whose human rights were violated by persons acting in an official capacity and to qualify for reparations "the human rights violation must have been committed during the period from September 21, 1972 to February 25, 1986".
Clearly, as proclaimed human rights victims, they squarely fall under the definition of R.A. No.10368. For the same reasons and basis that they are now before this Court, petitioners have already, by the proper political body, been given the recognition and reparation due them, in specific, direct and detailed provisions that even include the creation of a Human Rights Victims' Claims Board to implement the recognition and reparation granted to them by statute.
R.A. No. 10368 is a complete law. It has defined their rights, not just for reparation for damages suffered as HRV's but also they will have by the law their names enshrined in a Roll of Human Rights Victims. A Memorial/Museum/Library shall be established in their Honor. A compendum of their sacrifice shall be prepared and be readily viewed in the internet. There will even be a Human Rights Violations Victims' Memorial Commission. The definition of what their rights are limits any further inclusions except, perhaps, through the same legislative action. There too is significance in the "sunset clause" of the law which states that the Human Rights Victims' Claims Board shall complete its work within two years from the effectivity of the IRR promulgated by it, after which it shall become functus officio. By its concrete and definite terms, R.A. No. 10368 is a completed exercise of legislative wisdom. The Court cannot allow the collected petitions at bar to interfere with that wisdom.
The urgings for judicial action inspite of the limits of R.A. No. 10368 can be gleaned from the presentation by petitioners during the oral arguments. They testified on the details of their suffering during the term of President Ferdinand E. Marcos and pleaded that the burial of Marcos at the Libingan ng mga Bayani would "retraumatize" them. They supported the claim and prayer with the submission that their suffering accompanied by the other commission of Marcos, was a national experience that became sovereign contempt culminating in a revolt against Marcos and eventually the "constitutionalization" of both sin and sinner. Hence, the prayer that the allowance of the burial at the Libingan ng mga Bayani of the constitutionalized offender is in grave abuse of discretion.
Relative to the petitioners' prayer, an explanation was made by the Solicitor General:
Justice Caguioa:Was this a unilateral act on the part of the President or was this a request from the Marcos family?
Solicitor General Calida:I do not know the circumstances in which this promise was made, Your Honor, but if I know President Duterte, he already had a plan for the Philippines, a plan to unite all the Filipinos of different persuasions, ideologist, in fact, this policy of reconciliation is now manifested in the recent Oslo, Norway talks, Your Honor. He wants an inclusive government, Your Honor.
Justice Caguioa:So, what are we saying here that the testimonials made by human rights victims and other people like them which the Claims Board has numbered at around seventy-five thousand (75), those pain, the pain that they feel they do not reflect the national phyche today, is that what you're saying?
Solicitor General Calida:Your Honor, I'm human being I feel their pain, but we are in a Court of law, Your Honor. And there are venues where that pain will be expressed by the victims, and as far as I know, making them recount their horrible experience is a form of retraumatization.
Justice Caguioa:I understand from their testimonies and the summation made by the human rights, what is retraumatizing them is the act of burying President Marcos, do you dispute that?
Solicitor General Calida:I do not agree with that, Your Honor.
Justice Caguioa:When the President made this decision to allow the interment of President Marcos in the Libingan, did they also considered the injury that the Marcos family would suffer if the burial did not take place?x x x x
Solicitor General Calida:Well, the urgency, Your Honor, is that President Duterte has already stated that among his policies, Your Honor, is the policy of reconciliation, national healing, and any day that is, shall I rephrase if Your Honor. This is the policy that he has adopted: the remains of Marcos should now be interred at the Libingan even the 218 Congressmen, Your Honor, of the 15th Congress agreed that this place is the most fitting place where former President Marcos will be buried, Your Honor.
Justice Caguioa:And this wisdom, this decision is over and above the pain and sufferings of the human rights victims do I understand that correctly as a political decision that he made?
Solicitor General Calida:Well, the President will take every matter into consideration, Your Honor, and I assume he considered that too.
Justice Caguioa:Alright, thank you.[37]
All in all, the redemp ion of an election pledge and the policy which has basis in the result of the election, cannot be tainted with grave abuse of discretion. As things are the issue presented by the petitioners should not even be touched by the Court since it is a political question already resolved politically.
I vote to DISMISS the consolidated petitions before this Court.
[1] Marcos v. Manglapus, G.R. No. 88211, 27 October 1989.
[2] Id.
[3] Alvarez petition, p. 10
[4] Id.
[5] Ocampo petition, p. 6.
[6] Memorandum issued by Secretary of National Defense Delfin N. Lorenzana dated 7 August 2016.
[7] Id.
[8] Ocampo petition, p. 8.
[9] Id.
[10] Section 1 of R.A. No. 289 (An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National heroes and Patriots of the Country).
[11] Lagman Petition, p. 12; Alvarez Petition, p. 31.
[12] Baniaga Petition, p. 10.
[13] Sec. 2, R.A. No. 289.
[14] Lagman Petition, p. 15.
[15] Sec. 2 R.A. No. 10368.
[16] Lagman Petition, p. 16.
[17] Ocampo Petition, p. 21, Lagman Petition, p. 12.
[18] Rosales Petition, p. 20.
[19] Id. at 29.
[20] Lagman Petition, p. 17; Rosales Petition, p. 37, Rosales Petition, pp. 37-44.
[21] Baniaga Petition, p. 14.
[22] Id. at 14; Alvarez Petition, p. 11.
[23] Id. at 13.
[24] Rosales Petition, p. 60.
[25] Id. at 62.
[26] Baniaga Petition, p. 11; Rosales Petition, p. 37; Ocampo Petition, p. 15.
[27] Ocampo Petition, p. 25.
[28] Rosales Petition, p. 68.
[29] Id. at 67.
[30] Ocampo Petition, p. 26.
[31] Section 4, Rule 129 of the Revised Rules of Court:
Section 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.
A party may take judicial admissions in (a) the pleadings, (b) during the trial, either by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding. (Spouses Binarao v. Plus Builders, Inc., G.R. No. 154430, June 16, 2006).
[32] Rodrigo R. Duterte garnered a total of 16,601,997 votes; 6,623,822 votes more than his closest rival Mar Roxas who got 9,978,175 votes. The rest of the candidates got the following votes:
Jojo Binay - 5,416,140 votes[33] Sinco, Philippine Political Law: Principles and Concepts, 10th Edition, pp. 8-9; Article II in the 1935 Constitution is now Sec. 1 of Article II of the 1987 Constitution.
Miriam Defensor Santiago - 1,455,532 votes
Grace Poe - 9,100,991 votes
Roy Señeres - 25,779 votes
[34] Id. at 402-403.
[35] Tañada v. Cuenco, G.R. No. L-10520, 28 February 1957.
[36] Annex "A" (Petition in G.R. 225984).
[37] TSN of Oral Arguments, Wednesday 7 September 2016 10:00 a.m.
DISSENTING OPINION
". . . They tore my dress and then eventually they let me lay down to sleep but then early in the morning the two soldiers who stayed near me started torturing me again and by today's definition, it is rape because they fondled my breast and they inserted a long object into my vagina and although I screamed and screamed with all my might, no one seemed to hear except that I heard the train pass by . . ." | |
- Ma. Cristina Pargas Bawagan, Petitioner and Human Rights Victim of the Marcos Regime | |
"My mother is still alive but she was also ... she also undergone ... she underwent torture and sexual abuse and I hope my sister is not listening right now because she does not know this." | |
- Liwayway Arce, Petitioner and Human Rights Victim of the Marcos Regime |
LEONEN, J:
I dissent.
Under our constitutional order, Presidents, unlike kings, earn their honors. As Presidents are public servants, their position in itself should not be the basis to glorify them. Neither should their place in history be determined by a succeeding President. Only the sovereign Filipino People deserve to determine a President's place in history.
Given the present state of our Constitution, our laws, and our jurisprudence, it is illegal for the remains of Ferdinand E. Marcos to be interred at the Libingan ng mga Bayani. The Filipino People do not deserve such a symbolism.
Former President Ferdinand E. Marcos presided over a regime that caused untold sufferings for millions of Filipinos. Gross violations of human rights were suffered by thousands. The public coffers contributed to by impoverished Filipinos were raided. Ferdinand E. Marcos stood by as his family, associates, and cronies engaged in systematic plunder. The national debt ballooned during his regime.
He was eventually ousted by a public uprising. His regime and the abuses he committed during that time led to a complete rethinking of our constitutional order. The 1987 Constitution embeds most of our experiences during Martial Law. It was a reaction to the failures of governance of Ferdinand E. Marcos and his cohorts.
Ferdinand E. Marcos is no hero. He was not even an exemplary public officer. He is not worthy of emulation and inspiration by those who suffer poverty as a result of the opportunity lost during his administration, by those who continue to suffer the trauma of the violations to the human dignity of their persons and of their families. He is certainly not worthy of emulation and inspiration by those in public service, including the lawyers, judges, and justices who simply want to do what is right, protect others, and conscientiously and diligently protect public funds entrusted to them.
If we are true to the text and spirit of our Constitution and our laws as well as our history, Ferdinand E. Marcos cannot be buried at the Libingan ng mga Bayani. The proposal that he be accorded public honor is contrary to law. It is a betrayal of the Filipino spirit.
Rodrigo Roa Duterte's discretion as President is "not unconfined and vagrant" but always "canalized within banks that keep it from overflowing."[1] His alleged verbal orders to cause the interment of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani were whimsical, capricious, a grave abuse of discretion, and issued only to please a single family. Ferdinand E. Marcos invented most of his medals as a soldier. He was one of our worst Presidents.
National healing cannot simply come when the President pronounces it. It can only come through a process that leads to social justice. Justice requires accountability. Justice does not come with just forgetting. Accountability involves the recognition of the place of the perpetrator and the victim.
The victims of Martial Law, who stood by their principles and spoke to power, who were detained, made to disappear, tortured, killed, molested, and raped, were the heroes. They are the "bayani." By law, they are our heroes.
Ferdinand E. Marcos was the perpetrator. He is not the "bayani." The perpetrator cannot be a hero at the same time that his victims are heroes. This is cruel and illogical. This is impunity. This is an assurance that our People will suffer the same gross violations of human rights and plunder.
Our laws are not illogical. If they are, then they will be the cause of injustice. If our laws are unreasonable, then they will violate the "due process of law." Certainly, this Court cannot be party to an illogical and unreasonable interpretation of the law.
Our laws do not allow the burial of the remains of the perpetrator at the Libingan ng mga Bayani for any or all of the following reasons:
First, the President's verbal orders, which were the basis for the issuance of the questioned orders of public respondents, are invalid because they violate Republic Act No. 289. Republic Act No. 289 was never repealed. The law covers the subject of AFP Regulations No. 161-373 (1986),[2] AFP Regulations No. 161-374 (1998),[3] and AFP Regulations No. 161-375 (2000) (collectively, AFP Regulations).[4] Yet, these AFP Regulations ignore the requirements of Republic Act No. 289. Therefore, the basis of the Memorandum[5] of Secretary of National Defense Delfin Lorenzana (Lorenzana Memorandum) and the Directive[6] of Rear Admiral Emesto Enriquez (Enriquez Orders) are ultra vires and, therefore, are null, void, and inexistent.
Second, assuming without accepting that AFP Regulations were valid when issued, still President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders all violate the requirement in Section 1 of Republic Act No. 289 that those buried must have led lives worthy of "inspiration and emulation."
Third, assuming without accepting that the AFP Regulations were valid when issued, public respondents gravely abused their discretion when they failed to show that there was an examination of the sufficiency of the facts that would reasonably lead them to believe that the burial of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani would be in accordance with Republic Act No. 289 or the various Proclamations that identified the location of the Libingan, considering the findings of the National Historical Commission of the Philippines (National Historical Commission), the provisions of our laws including Republic Act No. 10368, and this Court's jurisprudence.
The President's verbal orders do not provide for a definite and complete reason for transferring the remains of Former President Ferdinand E. Marcos from its originally intended site as shown in the agreement signed by Former Secretary Rafael Alunan III (Former Secretary Alunan) and Imelda Marcos to the Libingan ng mga Bayani. It was whimsical, capricious, and an abuse of discretion, and could have been done only to accommodate the private interest of the Heirs of Marcos.
Fourth, the President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders were issued with grave abuse of discretion because they violate Republic Act No. 10368, otherwise known as the Human Rights Victims Reparation and Recognition Act of 2013.
Fifth, the President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders cannot be justified even under the provisions of the Administrative Code of 1987. Given the established circumstances of the Marcos regime and the participation of Ferdinand E. Marcos, there remains no public purpose to the interment of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani.
Sixth, the actions of public respondents are contrary to the President's oath of office because they encourage impunity. Impunity is the result of rewarding the person who presided over human rights violations and who personally participated in the plunder of the public treasury.
This case resolves Petitions for certiorari,[7] prohibition,[8] and mandamus:[9] (i) questioning the validity of the verbal orders of President Rodrigo Roa Duterte (President Duterte) to bury Ferdinand E. Marcos at the Libingan ng mga Bayani; (ii) seeking to nullify the Memorandum dated August 7, 2016 issued by Secretary of National Defense Delfin Lorenzana (Secretary Lorenzana) and the Directive dated August 9, 2016 of Rear Admiral Emesto Enriquez (Rear Admiral Enriquez) implementing President Duterte's verbal orders; and (iii) praying for the issuance of a temporary restraining order and/or preliminary injunction.
The facts that frame these consolidated cases are as follows:
After World War II, the Republic Memorial Cemetery was established in Fort William McKinley[10] as a burial place for Filipino soldiers who died during the war.[11] On October 23, 1954, Executive Order No. 77[12] was issued by Former President Ramon Magsaysay (Former President Magsaysay). The Executive Order directed the remains of all Filipino soldiers who died in the war be removed from their places of burial and transferred to the Republic Memorial Cemetery, since "in the national observance of the occasion honoring the memory of those war dead, it is fitting and proper that their remains be interred in one national cemetery."[13]
On October 27, 1954, through Proclamation No. 86, Former President Magsaysay renamed the Republic Memorial Cemetery to Libingan ng mga Bayani as the name "Republic Memorial Cemetery ... is not symbolic of the cause for which our soldiers have died, and does not truly express the nation's esteem and reverence for her war dead."[14]
On May 28, 1967, Former President Ferdinand E. Marcos issued Proclamation No. 208, reserving a portion of land in the Fort Bonifacio Military Reservation for national shrine purposes.[15]
On January 24, 1973, Ferdinand E. Marcos issued Presidential Decree No. 105, declaring national shrines to be hallowed places and punishing their desecration, which included the acts of "disturbing their peace and serenity by digging, excavating, defacing, causing unnecessary noise and committing unbecoming acts within the premises of said National Shrines[.]"[16]
On April 9, 1986, the Armed Forces of the Philippines issued AFP Regulations No. 161-373,[17] which prescribed the allocation of cemetery plots at the Libingan ng mga Bayani. This was amended on March 27, 1998 by AFP Regulations No. 161-374,[18] and then again on September 11, 2000 by AFP Regulations No. 161-375.[19] Both amendments were issued by the Former Secretaries of National Defense.[20]
In 1989, Ferdinand E. Marcos passed away in Hawaii while in exile.[21] Thereafter, in 1992, Former President Fidel V. Ramos (Former President Ramos), on behalf of government, signed an agreement with the Marcos Family pertaining to the return of Ferdinand E. Marcos' remains.[22] Under this agreement, the Marcos Family was allowed to fly Ferdinand E. Marcos' remains to the Philippines from Hawaii, subject to the following conditions: (1) that Ferdinand E. Marcos' remains would be flown straight from Hawaii to Ilocos Norte; (2) that Ferdinand E. Marcos would only be given honors befitting a major of the Armed Forces of the Philippines; (3) that his remains would not be permitted to be paraded around Metro Manila; and (4) that the burial would be done in Ilocos Norte, and not at the Libingan ng mga Bayani.[23]
However, before signing the agreement, and without informing any representative of government, Imelda R. Marcos crossed out the word "buried" and replaced it with the words "temporarily interred."[24] Former Secretary Alunan, during the Oral Arguments on August 31, 2016, stated that this was viewed by Former President Ramos as a sign of bad faith:
SECRETARY ALUN :During a press conference in May 2016, then President-elect Duterte stated he would allow the burial of Marcos at the Libingan ng mga Bayani:
The official agreement is what I personally, I officially submitted to the President of the Philippines on August 19 which was altered by Imelda Marcos. The following day, she sent her version of the Memorandum of Agreement that she signed without my signature but which was disregarded by the President. In fact, if I may share, the comment of the President when he saw the words temporarily interred was that, this was a sign of bad faith.[25]
Look, there is the courts. Pumunta kayo ng korte kasi yung taong hinahabol niyo, cadaver na (Go to the courts because the person you're after is already a cadaver). What do you want more from the guy? Patay nga (He's already dead) . . . . Sabi niyo si Marcos, hindi dapat diyan (ilibing) (You said that Marcos should not be buried there). That is (on) the question of his abuses. It is something that is attached to his persona forever. Marcos might not really be a hero, I accept that proposition, maybe. But certainly he was a soldier, Duterte said.President Duterte reiterated his position on Ferdinand E. Marcos' burial sometime in August 2016, stating that "[a]s a former soldier and former [P]resident of the Philippines, [he] [saw] nothing wrong in having Marcos buried at the Libingan ng mga Bayani."[27]
. . . .
In addition to being a president, he was a soldier. So yung sinabi mo noong dinakip ng martial law, nandiyan ang korte (So those who were arrested during the martial law, the courts are there for you). It's just a matter of distributing the award. So anong problema? Patay na yung tao. Anong gusto niyo? (So what is the problem? The guy is already dead. What do you want?) You want the cadaver to be burned? Will that satisfy your hate? he added.
. . . .
Alam mo kapag nagbitaw ako ng salita, yun na yun. Magpakamatay na ako diyan (If I have already uttered the words, that's it already. I am willing to stake my life on it). I will do things that I promised to do. I will not die if I do not become President. I will stake my honor, my life, and the presidency itself. Bantayan niyo ang salita ko (Pay attention to my words), Duterte said.[26]
On July 11, 2016, President Duterte gave verbal orders to respondent Secretary Lorenzana to carry out the interment of Ferdinand E. Marcos at the Libingan ng mga Bayani.[28]
In response to President Duterte's pronouncements, the National Historical Commission published a study entitled "Why Ferdinand Marcos Should Not Be Buried at the Libingan ng mga Bayani"[29] on July 12, 2016.[30] The National Historical Commission reported that Ferdinand E. Marcos' military records were not deserving of the honors that would be bestowed upon him should he be buried at the Libingan ng mga Bayani as they were "fraught with myths, factual inconsistencies, and lies." In particular, the National Historical Commission found that:
1. Mr. Marcos lied about receiving U.S. medals: Distinguished Service Cross, Silver Star, and Order of the Purple Heart, which he claimed as early as about 1945.Despite the National Historical Commission's report, on August 7, 2016, Secretary Lorenzana issued the Lorenzana Memorandum directing respondent Armed Forces of the Philippines Chief of Staff General Ricardo R. Visaya (General Visaya) "to undertake the necessary planning and preparations to facilitate the coordination of all agencies concerned" and to "coordinate closely with the Marcos family" as to the transfer of Marcos' remains to the Libingan ng mga Bayani.[32] Secretary Lorenzana designated the Philippine Veterans Affairs Office as the office of primary responsibility for the Marcos burial.[33] Reportedly, under this directive, General Visaya gave instructions to Rear Admiral Enriquez, Deputy Chief of Staff for Reservist and Retiree Affairs, pertaining to the Marcos burial.[34]
2. His guerilla unit, the Ang Mga Maharlika, was never officially recognized and neither was his leadership of it.
3. U.S. officials did not recognize Mr. Marcos's rank promotion from Major in 1944 to Lt. Col. By 1947.
4. Some of Mr. Marcos's actions as a soldier were officially called into question by upper echelons of the U.S. military, such as his command over the Alias Intelligence Unit (described as usurpation), his commissioning of officers (without authority), his abandonment of USAFIP-NL presumably to build an airfield for Gen. Roxas, his collection of money for the airfield (described as "illegal"), and his listing of his name on the roster of different units (called a "malicious criminal act").[31]
Thus, on August 12, 2016, the Armed Forces of the Philippines, through its Army Chief of Public Affairs, issued a press release entitled "Army receives interment directive for former Pres. Marcos." The press release stated that the Philippine Army had received a directive from Rear Admiral Enriquez under the command of General Visaya for the Marcos burial at the Libingan ng mga Bayani.[35] It stated that under this directive, the Army was required to provide vigil, bugler/drummer, firing party, military host/pallbearers, escort and transportation, as well as arrival and departure honors.[36] It also stated that the Army had designated a protocol officer to coordinate laterally with the Marcos Family regarding the details of the Marcos burial.[37]
President Duterte confirmed in various interviews that he had allowed Ferdinand E. Marcos' interment at the Libingan ng mga Bayani, as this was a promise he had made during his campaign for the presidency.[38]
Thus, petitioners separately filed the present Petitions for certiorari, prohibition, and mandamus, mainly seeking that the execution of the Executive Department's decision to allow the burial of Ferdinand E. Marcos at the Libingan ng mga Bayani be reversed, set aside, and enjoined.[39] After respondents filed their respective Comments, oral arguments were held on August 31 and September 7, 2016. The parties then filed their respective Memoranda.
The AFP Regulations are ultra vires. They violate Republic Act No. 289, which is still an existing law. Therefore, the verbal orders of the President, the Lorenzana Memorandum, and the Enriquez Orders based on the AFP Regulations are null and void.
Republic Act No. 289[40] creates a National Pantheon "to perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn[.]"[41] The National Pantheon is, by law, intended to be the "burial place of their mortal remains."[42] Thus:
SECTION 1. To perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn, there shall be constructed a National Pantheon which shall be the burial place of their mortal remains.The clear intention of the legislature in enacting Republic Act No. 289 was to create a burial place to perpetuate the memory of the Presidents of the Philippines, national heroes, and patriots, for the inspiration and emulation of generations of the Filipino People.[43] An examination of the evolution of what is now known as the Libingan ng mga Bayani shows that it is precisely the burial ground covered by Republic Act No. 289.
The Libingan ng mga Bayani, similar to the National Pantheon, is there to hold the remains and "perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and generations still unborn."
Republic Act No. 289 does not specify what the name of the National Pantheon shall be. The Libingan ng mga Bayani may not be called the "National Pantheon," but nothing in Republic Act No. 289 prohibits naming the National Pantheon as the Libingan ng mga Bayani.
Republic Act No. 289 does not specify where the National Pantheon is to be located. Under Republic Act No. 289, the suitable site is yet to be determined by a Board, who has the duty:
(a) | To determine the location of a suitable site for the construction of the said National Pantheon, and to have such site acquired, surveyed and fenced for this purpose and to delimit and set aside a portion thereof wherein shall be interred the remains of all Presidents of the Philippines and another portion wherein the remains ofheroes, patriots and other great men of the country shall likewise be interred[.][44] (Emphasis supplied) |
Wherever the mortal remains of Presidents of the Philippines, national heroes, and patriots are buried is, thus, the burial place envisioned by the legislature, subject to the provisions of Republic Act No. 289.
The space where the Libingan ng mga Bayani is now located was once the Republic Memorial Cemetery, which initially served as burial grounds for the war dead.[45]
Prior to the law's enactment, in 1947, the Republic Memorial Cemetery was established as a burial ground for soldiers who died during World War II.
While Republic Act No. 289 was effective and apparently without the action of the Board of National Pantheon, Former President Magsaysay issued Executive Order No. 77, transferring the remains of the war dead to the Republic Memorial Cemetery:
WHEREAS, the Armed Forces of the Philippines is maintaining the Bataan Memorial Cemetery in the province of Bataan and the Republic Memorial Cemetery in Fort Wm McKinley, Rizal province, thereby splitting the expenses of maintenance and upkeep therefor;This change-relocating the nation's war dead to one national cemetery-created a burial ground that, by its express purpose, necessarily glorifies and honors those buried as war heroes. This re-interment of all of the dead war heroes to the Republic Memorial Cemetery transformed it the National Pantheon, covered by Republic Act No. 289.
WHEREAS, there are other remains of our war dead interred at other places throughout the Philippines which are not classified as cemeteries;
WHEREAS, the said cemetery in Bataan province and the other places in the Philippines where our dead war heroes are interred are not easily accessible to their widows, parents, children, relatives and friends; and
WHEREAS, in the national observance of the occasion honoring the memory of those war dead, it is fitting and proper that their remains be interred in one national cemetery;
NOW, THEREFORE, I, RAMON MAGSAYSAY, President of the Philippines, by virtue of the powers vested in me by law, do hereby order that the remains of the war dead interred at the Bataan Memorial Cemetery, Bataan province, and at other places in the Philippines, be transferred to, and reinterred at, the Republic Memorial Cemetery at Fort Wm McKinley, Rizal Province.
On October 27, 1954, Former President Magsaysay issued Proclamation No. 86, changing the name of the Republic Memorial Cemetery to express the nation's esteem and reverence for those buried in the cemetery, the war dead:
WHEREAS, the name "Republic Memorial Cemetery" at Fort Wm McKinley, Rizal province, is not symbolic of the cause for which our soldiers have died, and does not truly express the nation's esteem and reverence for her war dead;Proclamation No. 86 purposefully and expressly altered the nature of the Republic Memorial Cemetery. The name was changed specifically to honor those who died in the war, as "bayani," the heroes of war.
NOW, THEREFORE, I, Ramon Magsaysay, President of the Philippines, by virtue of the powers vested in me by law, do hereby declare that the "Republic Memorial Cemetery" shall henceforth be called "LIBINGAN NG MGA BAYANI".
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
On July 12, 1957, Former President Carlos P. Garcia issued Proclamation No. 423, which reserved for military purposes, under the administration of the Chief of Staff of the Armed Forces of the Philippines, certain parcels of land in Pasig, Taguig, Parañaque, Province of Rizal, and Pasay City.[46] Under this Proclamation, the Armed Forces of the Philippines issued various regulations expanding the scope of the types of individuals who could be buried at the Libingan ng mga Bayani. Thus, the nature of what once was the Republic Memorial Cemetery changed further. The most recent AFP Regulations, AFP Regulations No. 161-375 (2000), invoked by public respondents, reads:
Again, the Republic Memorial Cemetery was created specifically as a burial place for the war dead,[48] and then renamed to Libingan ng mga Bayani with the express purpose of revering the nation's war dead.[49] Now, progressing from the renaming, and under AFP Regulations, the cemetery is no longer primarily a cemetery for the nation's war dead. Remains of individuals who have nothing to do with the military-much less any war have been interred there. This includes, among others, three (3) former Chief Justices of this Court,[50] as well as Former Presidents Elpidio R. Quirino and Diosdado P. Macapagal.[51]
- General: This regulation prescribes the allocation of cemetery plots and construction of grave markers at the Libingan Ng Mga Bayani (LNMB).
. . . .
- Who are qualified to be interred in the Libingan Ng Mga Bayani: The remains of the following deceased persons are qualified and, therefore, authorized to be interred in the Libingan Ng Mga Bayani:
- Medal of Valor Awardees
- Presidents of Commander-in-Chief, AFP
- Secretaries of National Defense
- Chiefs of Staff, AFP
- Generals/Flag Officers of the AFP
- Active and retired military personnel of the AFP to include active draftees and trainees who died in line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities.
- Former members of the AFP who laterally entered or joined the Philippine Coast Guard (PCG) and the Philippine National Police (PNP).
- Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerrillas.
- Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or the Secretary of National Defense.
- Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff are authorized to be interred at the LNMB.[47]
As admitted by the Solicitor General, the Armed Forces of the Philippines has determined that those who have contributed to society, despite not having served as soldiers, may be buried at the Libingan ng mga Bayani:
JUSTICE LEONEN:If the Libingan ng mga Bayani is a military cemetery, why is it that there is "national artist" also included in the order?
SOLICITOR GENERAL CALIDA:Because they fall under the classification of probably dignitaries, Your Honors.
JUSTICE LEONEN:Why single out national artists?
SOLICITOR GENERAL CALIDA:Because they have contributed something to society, Your Honor.
JUSTICE LEONEN:Maybe I will tell you because there is a law that actually allows national artists to be interred in the Libingan ng mga Bayani, is that not correct?[52]
The change of its name from Republic Memorial Cemetery to Libingan ng mga Bayani and the scope of individuals that could be buried through subsequent AFP Regulations are operative facts that put the cemetery under the coverage of Republic Act No. 289. What once may have been a military cemetery has been converted, over time, into what is the National Pantheon envisioned by the legislature when it passed Republic Act No. 289.
It is true that in 1953, Proclamation No. 431, entitled Reserving as Site for the National Pantheon a Certain Parcel of Land Situated in Quezon City, reserved a parcel of land in Quezon City for the construction of the National Pantheon. However, this was subsequently revoked by Proclamation No. 42, entitled Revoking Proclamation Nos. 422 and 431, Both Series of 1953, and Reserving the Parcels of Land Embraced Therein Situated in Quezon City for National Park Purposes to be Known as Quezon Memorial Park. There is no National Pantheon in Quezon City.
The revoked attempt to locate the National Pantheon in Quezon City does not amend Republic Act No. 289. Quezon City is not a definitive part of the National Pantheon, and Proclamation No. 431 is wholly irrelevant to the validity of Republic Act No. 289.
The ponencia suggests that the lack of appropriation from Congress for the creation of a National Pantheon shows a "legislative will not to pursue" the establishment of a National Pantheon. It further suggests that "[p]erhaps, the Manila North Cemetery, the Manila South Cemetery, and other equally distinguished private cemeteries already serve the noble purpose but without cost to the limited funds of the government."[53]
The failure to provide appropriation for a law does not repeal the law. Moreover, the failure to provide the appropriate budget for the execution of a law is a violation of the President's duty to faithfully execute all laws. Certainly, the lack of appropriation does not suspend standards laid down by the legislature in a valid and subsisting law.
The legislative policy in Republic Act No. 289 includes delegating the powers related to the National Pantheon to a specially constituted board composed of the Secretary of the Interior, the Secretary of Public Works and Communications, the Secretary of Education, and two (2) private citizens appointed by the President, with the consent of the Commission on Appointments (Board).[54] Under Republic Act No. 289, it is the Board-not the President directly nor the Secretary of National Defense-that has the power to perform all the functions necessary to carry out the purposes of the law.[55]
The Board is statutorily empowered to, among others:
However, the Lorenzana Memorandum and the Enriquez Orders to have the remains of Ferdinand E. Marcos transferred to the Libingan ng mga Bayani, today's National Pantheon, were made without the authority of the Board. Consequently, the Lorenzana Memorandum and the Enriquez Orders are void for being ultra vires. There is no showing that the Board recommended to the President the burial of the remains of Ferdinand E. Marcos at the Libingan. The issuances of public respondents are ultra vires and have no effect whatsoever. The continued implementation of these issuances would be an act beyond their jurisdiction, or grave abuse of discretion, because they violate existing law.
In public respondents' opening statement, the Solicitor General argues that the provisions of Republic Act No. 289 do not apply to the Libingan ng mga Bayani because Republic Act No. 289 is a "defunct law," established by the clear expressions of the legislative and executive will to abandon Republic Act No. 289 altogether, namely: (1) the inaction on the part of Congress, (2) the withdrawal of the reservation of land for the Pantheon by President Magsaysay.[56]
This is not a valid legal argument.
A law cannot be repealed by inaction or tradition. Neither can a law be repealed by a President. A President who does not follow a law is a President that violates his or her duties under the Constitution.
Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, custom, or practice to the contrary. This Court has repeatedly held that only a law can repeal another law,[57] and a law subsists when it has not been repealed nor expressly amended by any other law.[58] Likewise, "repeals by implication are not favored and will not be decreed, unless it is manifest that the legislature so intended."[59]
No law has been passed amending or repealing Republic Act No. 289, and no manifest intention on the part of the legislature to repeal Republic Act No. 289 has been shown. It cannot be disputed; therefore, Republic Act No. 289 is a valid and binding law.
Further, the effectivity of a law cannot be made to depend on a future event or act. Otherwise, it would "rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know." In Securities and Exchange Commission v. Interport Resources Corporation:[60]
It is well settled that every law has in its favor the presumption of validity. Unless and until a specific provision of the law is declared invalid and unconstitutional, the same is valid and binding for all intents and purposes. The mere absence of implementing rules cannot effectively invalidate provisions of law, where a reasonable construction that will support the law may be given. In People v. Rosenthal, this Court ruled that:The effectivity of Republic Act No. 289 does not depend on a Board being constituted or on the naming of a plot of land as the ''National Pantheon." If a government agency creates a burial place that clearly and factually comprises the burial place contemplated in Republic Act No. 289, the legislative policy must still govern.In this connection we cannot pretermit reference to the rule that "legislation should not be held invalid on the ground of uncertainty if susceptible of any reasonable construction that will support and give it effect. An Act will not be declared inoperative and ineffectual on the ground that it furnishes no adequate means to secure the purpose for which it is passed, if men of common sense and reason can devise and provide the means, and all the instrumentalities necessary for its execution are within the reach of those intrusted therewith."In Garcia v. Executive Secretary, the Court underlined the importance of the presumption of validity of laws and the careful consideration with which the judiciary strikes down as invalid acts of the legislature:The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.The necessity for vesting administrative authorities with power to make rules and regulations is based on the impracticability of lawmakers' providing general regulations for various and varying details of management. To rule that the absence of implementing rules can render ineffective an act of Congress, such as the Revised Securities Act, would empower the administrative bodies to defeat the legislative will by delaying the implementing rules. To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know. It is well established that administrative authorities have the power to promulgate rules and regulations to implement a given statute and to effectuate its policies, provided such rules and regulations conform to the terms and standards prescribed by the statute as well as purport to carry into effect its general policies. Nevertheless, it is undisputable that the rules and regulations cannot assert for themselves a more extensive prerogative or deviate from the mandate of the statute. Moreover, where the statute contains sufficient standards and an unmistakable intent, as in the case of Sections 30 and 36 of the Revised Securities Act, there should be no impediment to its implementation.[61] (Emphasis supplied)
The majority's position is that Republic Act No. 289 can be simply ignored by the President. The President, however, will gravely abuse his discretion when he does.
The Solicitor General insists that the disparate histories of the site of the Libingan ng mga Bayani and Republic Act No. 289 reveal that the two are unrelated. Hence, the provisions of Republic Act No. 289 do not apply to the Libingan ng mga Bayani.[62]
The Solicitor General starts with a narration of the history of the land where the Libingan ng mga Bayani, as nothing but a renamed Republic Memorial Cemetery,[63] intended only to be a national military cemetery for the interment of those who died during the war.[64] He then proceeds to insist that the Libingan ng mga Bayani has been operating as a military shrine and cemetery.[65] In his view, the National Pantheon, on the other hand, was never constructed.[66] Its intended site was in Quezon City under Proclamation No. 431.[67] However, in 1954, this site was later withdrawn under Proclamation No. 42.[68]
The Solicitor General implies that simply because Proclamation No. 431 was later withdrawn by another presidential proclamation, the law has ceased to become effective.
The Solicitor General then argues that the standards laid down in Republic Act No. 289 do not apply to the Libingan ng mga Bayani. Public respondents point out that the standards under Republic Act No. 289 are not stated in any of the issuances pertinent to the Libingan ng mga Bayani, namely: Proclamation No. 208, Presidential Decree No. 1076, or Executive Order No. 292.[69] Thus, as the National Pantheon was never constructed, public respondents claim that "the clear inference is that former President Marcos and President Corazon Aquino did not intend to adopt said standards for those to be interred at the Libingan ng mga Bayani."[70]
The position of the Solicitor General is legally untenable and logically unsound. Presidents who do not follow the law do not repeal that law. Laws can only be repealed by a subsequent law. Again, that Republic Act No. 289 was ignored in the past does not give legal justification for the present administration to likewise violate the law.
Republic Act No. 289 does not specify the location of the National Pantheon. It could be anywhere. The defining characteristic of the National Pantheon is that it shall be the burial place of the Presidents of the Philippines, national heroes, and patriots.[71]
The AFP Regulations, on the other hand, provide that the remains of the following may be buried at the Libingan ng mga Bayani: (1) Medal of Valor Awardees; (2) Presidents or Commanders-in-Chief of the Armed Forces of the Philippines; (3) Secretaries of National Defense; (4) Chiefs of Staff of the Armed Forces of the Philippines; (5) General flag officers of the Armed Forces of the Philippines; (6) Active and retired military personnel of the Armed Forces of the Philippines; (7) Veterans of the Philippine Revolution of 1896, World War I, World War II, and recognized guerrillas; (8) government dignitaries, statesmen, national artists, and other deceased persons whose interment or re-interment has been approved by the Commander-in-Chief, Congress, or the Secretary of National Defense; and (9) Former Presidents, Secretaries of Defense, CSAFP, generals/flag officers, dignitaries, statesmen, national artists, widows of former Presidents, Secretaries of National Defense, and Chiefs of Staff.[72]
A plain reading of the AFP Regulations reveals that although it does not refer to Republic Act No. 289, it nonetheless provides for the burial of individuals who would properly be covered by Republic Act No. 289. The AFP Regulations define a burial place, which is the burial place provided for under Republic Act No. 289.
The executive cannot avoid carrying out a valid and subsisting law by passing regulations substantially covering a matter that is already a law and excuse itself from complying with the law on the premise that it-a law that the executive never implemented-is now defunct.
Under Republic Act No. 289, only the Board is authorized to set aside portions of the National Pantheon where the remains of the Presidents of the Philippines, national heroes, and patriots shall be interred,[73] to cause to be interred in the National Pantheon the mortal remains of Presidents of the Philippines, national heroes, and patriots,[74] and to perform such other functions as may be necessary to carry out the purposes of this law.[75]
Having been issued by Secretary Lorenzana, General Visaya, and Rear Admiral Enriquez without the authority of the Board, the General Lorenzana Memorandum and the Enriquez Orders are void for being ultra vires.
Assuming without accepting that respondents Secretary Lorenzana, General Visaya, and Rear Admiral Emiquez had the authority to determine who may be interred at Libingan ng mga Bayani, the Lorenzana Memorandum and the Enriquez Orders are nonetheless invalid.
Under Section 1 of Republic Act No. 289, those buried at the Libingan ng mga Bayani must have led lives worthy of "inspiration and emulation."
Ferdinand E. Marcos does not meet this standard.
Our jurisprudence clearly shows that Ferdinand E. Marcos does not even come close to being one who will inspire. His example should not be emulated by this generation, or by generations yet to come.
Ferdinand E. Marcos has been characterized as an authoritarian by this Court in nine (9) Decisions[76] and 9 Separate Opinions.[77] He was called a dictator in 19 Decisions[78] and 16 Separate Opinions.[79] That he was unceremoniously deposed as President or dictator by a direct act of the People was stressed in 16 Decisions[80] and six (6) Separate Opinions.[81] This Court has also declared that the amount of US$658,175,373.60, in Swiss deposits under the name of the Marcoses, was ill-gotten wealth that should be forfeited in favor of the State.[82]
For instance, a powerful portrait of the despotic power exercised by Marcos during Martial Law was presented in Dizon v. Eduardo:[83]
Senator Diokno passed away a year ago last February 27th. He, together with the martyred Senator Benigno "Ninoy" Aquino Jr. were the first victims of martial law imposed in September 1972 by then President Ferdinand E. Marcos, destroying in one fell swoop the Philippines' 75 years of stable democratic traditions and established reputation as the showcase of democracy in Asia. They were the first to be arrested in the dark of the night of September 22, 1972, as the military authorities spread out through the metropolis upon orders of the President-turned-dictator to lock up the opposition together with newspaper editors, journalists and columnists and detain them at various army camps. What was the martial law government's justification for the arrest and detention of Diokno and Aquino? The government's return to their petitions for habeas corpus claimed that they were "regarded as participants or as having given aid and comfort 'in the conspiracy to seize political and state power and to take over the government by force.'" The fact is that they just happened to be the foremost contenders for the Presidency of the Republic in the scheduled November 1973 presidential elections, at which time Mr. Marcos would have finished his second 4-year term and barred under the prevailing 1935 Constitution from running for a third term....In Mijares v. Ranada,[85] despite the passing of years, this Court acknowledged the continuing difficulties caused by the dark years of the Marcos regime:
. . . .
Senator Ninoy Aquino underwent an even more tortuous ordeal. He was charged on August 11, 1973 with murder, subversion and illegal possession of firearms and found guilty and sentenced to death by a military commission, notwithstanding his being a civilian and the fact that said general offenses were allegedly committed before the imposition of martial law, and could not fall within the jurisdiction of military commissions, which are not courts but mere adjuncts of the Commanderin-Chief to enforce military discipline. Mr. Marcos had publicly pronounced the evidence against Ninoy as "not only strong but overwhelming" in a nation-wide press conference on August 24, 1971 following the Plaza Miranda bombing three days earlier of the LP proclamation meeting, yet had not charged him before the civil courts. Ninoy had contended correctly but in vain that he had been publicly indicted and his guilt prejudged by Mr. Marcos, and he could not possibly get due process and a fair trial before a group of Mr. Marcos' military subordinates[.][84]
Our martial law experience bore strange unwanted fruits, and we have yet to fmish weeding out its bitter crop. While the restoration of freedom and the fundamental structures and processes of democracy have been much lauded, according to a significant number, the changes, however, have not sufficiently healed the colossal damage wrought under the oppressive conditions of the martial law period. The cries of justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fairminded, yet the dispensation of the appropriate relief due them cannot be extended through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of reparations due within the confmes of the restored rule of law.In Presidential Commission on Good Governance v. Peña,[87] this Court recognized the gargantuan task of the Philippine Commission on Good Governance in recovering the ill-gotten wealth of the Marcoses and the "organized pillage" of his regime:
The petitioners in this case are prominent victims of human rights violations who, deprived of the opportunity to directly confront the man who once held absolute rule over this country, have chosen to do battle instead with the earthly representative, his estate[.][86]
Having been charged with the herculean task of bailing the country out of the fmancial bankruptcy and morass of the previous regime and returning to the people what is rightfully theirs, the Commission could ill-afford to be impeded or restrained in the performance of its functions by writs or injunctions emanating from tribunals co-equal to it and inferior to this Court. Public policy dictates that the Commission be not embroiled in and swamped by legal suits before inferior courts all over the land, since the loss of time and energy required to defend against such suits would defeat the very purpose of its creation.The many martyrs produced by Martial Law were recognized in Bisig ng Manggagawa sa Concrete Aggregates, Inc v. National Labor Relations Commission:[89]
. . . .
The rationale of the exclusivity of such jurisdiction is readily understood. Given the magnitude of the past regime's 'organized pillage' and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market, it is a matter of sheer necessity to restrict access to the lower courts, which would have tied into knots and made impossible the Commission's gigantic task of recovering the plundered wealth of the nation, whom the past regime in the process had saddled and laid prostrate with a huge $27 billion foreign debt that has since ballooned to $28.5 billion.[88]
Hence, on June 17, 1953, Congress gave statutory recognition to the right to strike when it enacted RA 875, otherwise known as the Industrial Peace Act. For nearly two (2) decades, labor enjoyed the right to strike until it was prohibited on September 12, 1972 upon the declaration of martial law in the country. The 14-year battle to end martial rule produced many martyrs and foremost among them were the radicals of the labor movement. It was not a mere happenstance, therefore, that after the final battle against martial rule was fought at EDSA in 1986, the new government treated labor with a favored eye. Among those chosen by then President Corazon C. Aquino to draft the 1987 Constitution were recognized labor leaders like Eulogio Lerum, Jose D. Calderon, Bias D. Ople and Jaime S. L. Tadeo. These delegates helped craft into the 1987 Constitution its Article XIII entitled Social Justice and Human Rights. For the first time in our constitutional history, the fundamental law of our land mandated the State to "... guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law." This Constitutional imprimatur given to the right to strike constitutes signal victory for labor. Our Constitutions of 1935 and 1973 did not accord constitutional status to the right to strike. Even the liberal US Federal Constitution did not elevate the right to strike to a constitutional level[.][90]Widespread "acts of torture, summary execution, disappearance, arbitrary detention, and numerous other atrocities" were also recognized in other jurisdictions. In a class action suit that served as a serious precedent for other jurisdictions, the United States District Court of Hawaii in In Re Estate of Marcos Human Rights Litigation[91] pronounced:
"Proclamation 1081 not only declared martial law, but also set the stage for what plaintiffs alleged, and the jury found, to be acts of torture, summary execution, disappearance, arbitrary detention, and numerous other atrocities for which the jury found MARCOS personally responsible.US$1.2 billion in exemplary damages, as well as US$770 million in compensatory damages, was awarded to the victims of the Marcos regime.[93] The federal appeals court upheld the Decision of the Honolulu court and held the estate of Marcos liable for the gross and massie human rights abuses committed. In Hilao v. Marcos,[94] the United States 9th Circuit Court of Appeals used the principle of "command responsibility" for the violations committed by the agents of a political leader, thus:
MARCOS gradually increased his own power to such an extent that there were no limits to his orders of the human rights violations suffered by plaintiffs in this action. MARCOS promulgated General Order No. 1 which stated he was the Commander in Chief of the Armed Forces of the Philippines. The order also stated that MARCOS was to govern the nation and direct the operation of the entire Government, including all its agencies and instrumentalities. By General Orders 2 and 2-A, signed by MARCOS immediately after proclaiming martial law, MARCOS authorized the arrest, by the military, of a long list of dissidents. By General Order 3, MARCOS maintained, as captive, the executive and judicial branches of all political entities in the Philippines until otherwise ordered by himself personally.
. . . .
Immediately after the declaration of martial law the issuance of General Orders 1, 2, 2A, 3 and 3A caused arrests ofpersons accused of subversion, apparently because of their real or apparent opposition to the MARCOS government. These arrests were made pursuant to orders issued by the Secretary of defense Juan Ponce Emile ('ENRILE') or MARCOS himself.
The arrest orders were means for detention of each of the representatives of the plaintiff class as well as each of the individual plaintiffs. During those detentions the plaintiffs experienced human rights violations including, but not limited to the following:1. Beatings while blindfolded by punching, kicking and hitting with the butts of rifles;All these forms of torture were used during 'tactical interrogation', attempting to elicit information from detainees concerning opposition to the MARCOS government. The more the detainees resisted, whether purposefully or out of lack of knowledge, the more serious the torture used.[92]
2. The 'telephone' where a detainee's ears were clapped simultaneously, producing a ringing sound in the head;
3. Insertion of bullets between the fingers of a detainee and squeezing the hand;
4. The 'wet submarine', where a detainee's head was submerged in a toilet bowl full of excrement;
5. The 'water cure' where a cloth was placed over the detainee's mouth and nose, and water poured over it producing a drowning sensation;
6. The 'dry submarine', where a plastic bag was placed over the detainee's head producing suffocation;
7. Use of a detainee's hands for putting out lighted cigarettes;
8. Use of flat-irons on the soles of a detainee's feet;
9. Forcing a detainee while wet and naked to sit before an air conditioner often while sitting on a block of ice;
10. Injection of a clear substance into the body of a detainee believed to be truth serum;
11. Stripping, sexually molesting and raping female detainees; one male plaintiff testified he was threatened with rape;
12. Electric shock where one electrode is attached to the genitals of males or the breast of females and another electrode to some other part of the body, usually a finger, and electrical energy produced from a military field telephone is sent through the body;
13. Russian roulette; and
14. Solitary confinement while handcuffed or tied to a bed.
"The district court had jurisdiction over Hilao's cause of action. Hilao's claims were neither barred by the statute of limitations nor abated by Marcos' death. The district court did not abuse its discretion in certifying the class. The challenged evidentiary rulings of the district court were not in error. The district court properly held Marcos liable for human rights abuses which occurred and which he knew about and failed to use his power to prevent. The jury instructions on the Torture Victim Protection Act and on proximate cause were not erroneous. The award of exemplary damages against the Estate was allowed under Philippine law and the Estate's due process rights were not violated in either the determination of those damages or of compensatory damages."[95]The Federal Supreme Court of Switzerland, through the Decision dated December 10, 1997,[96] affirmed the ruling of the District Attorney of Zurich granting the Philippine government's request for transfer of funds held in multiple accounts by various foreign foundations in Swiss banks. This was transferred to an escrow account.
Then, in Republic v. Sandiganbayan,[97] this Court declared that the funds were proven to belong to the Marcos Family and were consequently ill-gotten wealth:
We agree with petitioner that respondent Marcoses made judicial admissions of their ownership of the subject Swiss bank deposits in their answer, the General Supplemental Agreements, Mrs. Marcos' Manifestation and Constancia dated May 5, 1999, and the Undertaking dated February 10, 1999. We take note of the fact that the Associate Justices of the Sandiganbayan were unanimous in holding that respondents had made judicial admissions of their ownership of the Swiss funds.This cursory review of our jurisprudence relating to the consequences of the Marcos regime establishes a climate of gross human rights violations and unabated pillage of the public coffers. It also reveals his direct participation, leadership, and complicity.
In their answer, aside from admitting the existence of the subject funds, respondent likewise admitted ownership thereof. Paragraph 22 of respondents' answer stated:
22. Respondents specifically DENY PARAGRAPH 23 insofar as it alleges that respondents clandestinely stashed the country's wealth in Switzerland and hid the same under layers and layers of foundations and corporate entities for being false, the truth being that respondents' aforesaid properties were lawfully acquired.
By qualifying their acqmsttion of the Swiss bank deposits as lawful, respondents unwittingly admitted their ownership thereof.
. . . .
Petitioner Republic presented not only a schedule indicating the lawful income of the Marcos spouses during their incumbency but also evidence that they had huge deposits beyond such lawful income in Swiss banks under the names of five different foundations. We believe petitioner was able to establish the prima facie presumption that the assets and properties acquired by the Marcoses were manifestly and patently disproportionate to their aggregate salaries as public officials. Otherwise stated, petitioner presented enough evidence to convince us that the Marcoses had dollar deposits amounting to US $356 million representing the balance of the Swiss accounts of the five foundations, an amount way, way beyond their aggregate legitimate income of only $304,372.43 during their incumbency as government officials.
Considering, therefore, that the total amount of the Swiss deposits was considerably out of proportion to the known lawful income of the Marcoses, the presumption that said dollar deposits were unlawfully acquired was duly established.[98] (Emphasis supplied)
In Republic Act No. 10368, a legislative determination was made regarding the gross human rights violations committed during the Marcos regime:
Section 2. Declaration of Policy. - ....Section 17 even declares a conclusive presumption as to particular victims and, at the same time, recognizes the complicity of Ferdinand E. Marcos:
Consistent with the foregoing, it is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.
Similarly, it is the obligation of the State to acknowledge the sufferings and damages inflicted upon persons whose properties or businesses were forcibly taken over, sequestered or used, or those whose professions were damaged and/or impaired, or those whose freedom of movement was restricted, and/or such other victims of the violations of the Bill of Rights.
Sec. 17. Conclusive Presumption That One is an HRVV Under This Act. - The claimants in the class suit and direct action plaintiffs in the Human Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 88-0390) in the US Federal District Court of Honolulu, Hawaii wherein a favorable judgment has been rendered, shall be extended the conclusive presumption that they are [victims of human rights violations]: Provided, That the [victims of human rights violations] recognized by the Bantayog Ng Mga Bayani Foundation shall also be accorded the same conclusive presumption[.]Conclusive presumptions are "inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong."[99] Thus, the existence of human rights violations committed during the Marcos regime and the recognition of victims explicitly stated in the provision cannot be denied.
The human rights victims and the violations under the Marcos regime are so numerous that the legislature created a Human Rights Victims' Claims Board, dedicated to effectively attain the objectives of Republic Act No. 10368. The Board is now adjudicating 75,730 claims of human rights victims for reparation and/or recognition under Republic Act No. 10368.[100]
Petitioner Algamar A. Latiph points out that among the many gross human rights violations perpetrated under the Marcos regime were those inflicted on the Moro civilian population. These atrocities were committed by government forces, as well as by state-affiliated armed groups. The more infamous of these are: (1) the Jabidah Massacre, where government forces allegedly executed at least 23 Muslim recruits;[101] (2) the Burning of Jolo, where the massive aerial and naval bombardments and a ground offensive against the MNLF forces resulted in the destruction of two-thirds of Jolo and, thus, thousands of refugees;[102] (3) the Malisbong Massacre, where paramilitary forces were responsible for killing about 1,500 Moro men and boys who were held in a local mosque and killed, an unknown number of women and girls were raped offshore on a naval vessel, and around 300 houses were burned.[103]
Lesser known but equally deplorable atrocities alleged to have been committed by government forces during the Marcos regime included the Tran Incident and the Tong Umapuy Massacre. These were reported by the Transitional Justice and Reconciliation Commission:[104]
The "Tran Incident" refers to a large-scale military campaign against the MNLF in central Mindanao in June-August 1973. In the Listening Process session, participants spoke of the massacre of Moro civilians from the Barangay Populacion in the town of Kalamansig, Sultan Kudarat province by military forces during that campaign. The soldiers separated the men and women; the men were confined in a military camp, interrogated, and tortured, while the women with their children were taken aboard naval vessels and raped. In the end, the men as well as the women and children were killed. At a Listening Process session in Tawi-Tawi, participants shared their memory of what they called the "Tong Umapuy massacre." In 1983, a Philippine Navy ship allegedly opened fire on a passenger boat and killed 57 persons on board. The passengers were reportedly on their way to an athletic event in Bongao.[105]As regards the atrocities committed by groups that maintained ties with the government under Marcos, the Transitional Justice and Reconciliation Commission reports:
The campaign of the Ilaga in Mindanao in 1970-1971 involved indiscriminate killings and burning of houses with the intention of terrorizing and expelling the Moro and indigenous population from their homes and ancestral territories. Violent incidents took place chronologically in a progressive fashion over a widespread area, occurring among other places in Upi, Maguindanao (March and September 1970); Polomok, South Cotabato (August 1970); Alamada, Midsayap, and Datu Piang, Cotabato (December 1970); Bagumbayan and Alamada, Cotabato (January 1971); Wao, Lanao del Sur (July and August 1971); Ampatuan, Cotabato (August 1971); Kisolan, Bukidnon (October 1971); Siay, Zamboanga del Sur (November 1971); Ipil, Zamboanga del Sur (December 1971); and Palembang, South Cotabato (January 1972).Petitioners also gave this Court their first-hand accounts of the human rights violations they suffered under the Marcos regime. Petitioner Loretta Ann P. Rosales recounted that she was raped and tortured with the Russian roulette and a modified water cure, among others:
The armed bands of Christian paramilitaries, primarily Ilongga settlers, that comprised the Ilaga, maintained ties with state authorities, including local and national politicians, the Philippine Constabulary, and the military. In most cases, the paramilitaries acted on their own initiative; on other occasions, however, it is believed that their attacks were conducted in close coordination with government authorities. This was allegedly the circumstance in the case of the mass killings of Moro villagers that took place in a mosque and outlying houses in a rural Barangay of Carmen, (North) Cotabato on June 19, 1971. Known as the "Manili massacre," this event spurred the Moro armed resistance and was one of the few incidents that received attention in international media.
. . . .
. . . During the height of Ilaga atrocities, women's bodies were mutilated by cutting off their nipples and breasts, ripping babies out of pregnant women's wombs, and disfiguring their reproductive organs....
. . . [D]uring the TJRC Listening Process, there were accounts of women being raped by Ilaga and soldiers in front of their families or of women forced to have sex with their husbands in front of and for the amusement of soldiers. Many Moro women and young girls who were abducted and raped were never seen again; others were allowed to return home. According to the TJRC Listening Process report, incidents of sexual violence took place during the period of Martial Law that amount to military sexual slavery:
. . . [B]etween 1972 and 1974, Ilaga and soldiers alike made Bangsamoro women in Labangan and Ipil, Sibugay become "sex slaves" of navy men, whose boat was docked at Labangan and Ipil ports. For more than a week, soldiers rounded up a group of at least ten women from Labangan and forced them to the naval boats to serve the "sexual needs" of the navy men. The following day, they were released; only to be replaced with another group of women, and so on. . . . More than 200 women were [believed to be] enslaved in this way.[106]
MRS. ROSALES:My name is Loretta Ann P. Rosales. I am a torture victim under the Marcos regime. I was sexually molested and according to the latest Rape Act, I was actually raped, that is the definition. I had electric shock; I suffered from Russian roulette, modified water cure and several other ways of harassing me. So I'm a torture victim and so I applied before the Claims Board compensation for the violations committed by the Marcos regime during my time.
CHIEF JUSTICE SERENO:By Russian roulette, what is it, Ms. Rosales?
MRS. ROSALES:They had a gun and they threatened me to answer the questions otherwise they would shoot. So that was a psywar. So I said if I would give in to them, they'll shoot me then they won't ... then they won't be able to get confession from me cause I'll be dead by then. So that was all psywar so I just kept on with my position and they finally gave up. So they went into other methods of torture in order to try to draw confession, exact confession from me. And the worst part, of course, was that sexual molestation and electric shock and the modified water cure.
CHIEF JUSTICE SERENO:How long did these incidents transpire, the entire duration? You don't have to count the number of days ... (interrupted)
MRS. ROSALES:No, no, in fact, I don't know. I mean it was just a continuing thing like twenty-four (24) hours continuing torture. There was no sleeping, there was no eating. It just went on and on because until ... such time, it was after the electric shock I suffered . . . I was traumatized, physically traumatized so I couldn't control the tremor in my body and they finally stop[ped]. I pretended I was dying but they knew I wasn't dying. So that's all psywar throughout. Anyway, after the electric part, which was the worst part, that was the last part, they finally pushed me and put me somewhere and I don't know how long that took.[107]
MS. BAWAGAN:I am Ma. Cristina Pargas Bawagan. I am the sister of Etta. I was arrested May 27, 1981 in Munoz, Nueva Ecija on charges of possession of subversive documents. There was no arrest order; I was simply arrested, handcuffed and blindfolded, my mouth gagged then they brought me to a safe house. And in the safe house they started interrogating and torturing me and they hit on my thighs until my thighs turned black and blue; and they also threatened me with so many things, pinompyang ako, that's what they call sa ears and then they put a sharp object over my breast, etcetera. They tore my dress and then eventually they let me lay down to sleep but then early in the morning the two soldiers who stayed near me started torturing me again and by today's definition, it is rape because they fondled my breast and they inserted a long object into my vagina and although I screamed and screamed with all my might, no one seemed to hear except that I heard the train pass by ...[108]
MS. NARCISO:I am Hilda Narciso. I was incarcerated in Davao City in 1983. It was a rape, multiple rape that I have undergone through my captures. I was placed in a safe house where the militaries are safe and I was actually being sexually abused for about two days. It's quite difficult to me in the hands of the militaries because I was handcuffed, blindfolded and actually they have mashed all my body. And ... (At this juncture, Ms. Narciso is already in tears) they handcuffed me and then a lot of hands were all over my body and they also put their penises one at a time on my mouth, fmger your vagina and all that for several hours without . . . you have been even taken your food. Actually it was quite a long period of time under the safe house for about two days with all those kinds of process that I have gone through ...[109]
MS. ARCE:I'm Liwayway Arce, Your Honors. I'm the daughter of Merardo Tuazon-Arce; he was a UP student and he founded Panday Sining, which was a cultural group. Later on he fought for his beliefs and on February 5, 1985, he was gunned down in Mabolo Street in Cebu City. In 2005, he was heralded as one of the martyrs at the Bantayog ng mga Bayani Foundation and his name is inscribed also together with two hundred sixty plus martyrs and heroes in Bantayog ng mga Bayani. I am a claimant-beneficiary under the Republic Act 10368. And my mother is also a claimant; she was incarcerated also in a camp in Fort Bonifacio. I don't really know much details about my parents because I was not raised by them and there are many other beneficiaries like me who were orphaned. My mother is still alive but she was also . . . she also undergone . . . she underwent torture and sexual abuse and I hope my sister is not listening right now because she does not know this. Thank you.[110]
ATTY. COLMENARES:And for the record, Your Honor, I'm also conclusively presumed under the law as a human rights victim being in the Hawaii case for my torture of seven days and four years of imprisonment when I was eighteen years old, Your Honor. Thank You.
CHIEF JUSTICE SERENO:You were eighteen years old. You were a student leader at that time, Congressman ... ?
ATTY. COLMENARES:Yes, I was the chairman of the student catholic action and we were demanding the return of student council and student papers when I was arrested. And I was tortured, Your Honor, the usual, they ... cigarette butts, the electric shocks, the M16 bullets in between your fingers, the Russian roulette and so on, Your Honor. So under the law, human rights victims who are in Hawaii, the Hawaii case are conclusively presumed to be human rights violation victims your Honor.[111]
Magandang hapon po sa inyong lahat mga Justices. Ako po si Trinidad Herrera Repuno. Ako ay isang biktima ng kapanahunan ng martial law. Ako po ay isang leader ng organisasyon ng mga mahirap sa Tondo. Ang pinaglalaban po namin ay merong batas para doon sa magkaroon kami ng lupa at yung iba pang mga karapatan namin. Subalit noong nagdeklara si Marcos ng martial law, nawala ho lahat ng saysay iyon. . . . Ako po'y isa sa mga judges na pupunta sana sa international competition para architectural competition sa Vancouver para doon sa pabahayan na gagawin dito sa Pilipinas. Subalit hindi po ako binigyan nang pagkakataon na makaalis. Sa halip na ako'y makaalis, ako po ay hinuli noong April 27, 1977 at ako'y dinala dooon sa ... ang humuli ho sa akin intelligence ng Manila Police. At ako y kinahapunan tinurn-over sa Crame sa pangunguna po ni Eduardo Matillano. Nang ako'y napasok doon sa maliit na kuwarto, ako'y tinanong kung ano ang pangalan ko, sinabi ko ang pangalan ko at ako'y . . . pinaalis ang aking sapatos, pinaalis lahat iyong aking bag at sinabi sa akin na tumayo ako. Merong parang telepono doon sa may lamesa na meroong kuryente. lyon po ang inilagay dito sa aking dalawang daliri at inumpisahan ho nila akong tinatanong kung sinu-sino ang nalalaman ko. Ang alam ko lang ho ang pinaglalaban namin, na karapatan namin para sa aming mga maralita. Subalit hindi naniniwala si Matillano at sinasabi nya na meron akong kinalaman sa mga kumunista na wala naman akong kinalaman. Iyon ang pinipilit po nila hanggang dumudugo na po ang dalawang daliri ko dito sa ... iyong mga malalaking daliri ko, tumutulo na po ang dugo, hindi pa ho nila tinatantanan. Mamaya-maya nang hindi na po nila naanuhan, pinaalis ho ang aking blusa at iyong wire po inilagay po dito sa aking dalawang suso at muli inulit-ulit pagtuturn po nang parang telepono pumapasok po ang kuryente sa katawan ko na hindi ko na ho nakakayanan hanggang sa ako y sumigaw nang sumigaw subalit wala naman hong nakakarinig sapagkat maliit na kwarto, nilagyan pa ho ng tubig iyong sahig para iyong kuryente lalong pumasok sa aking katawan. . . Nairelease po ako subalit naghina po ako hanggang sa ngayon. Nang ako'y medyo may edad na nararamdaman ko na ho iyong mga pampahirap, iyong pukpok dito sa likod ko habang ako'y inaano, lagi po nilang ... pagkatapos nang pagpaikot ng kuryente, pukpukin ho ako dito sa likod. Sabi nya pampalakas daw iyon. Pero masakit na masakit po talaga hanggang sa ngayon nararamdaman po namin ngayon ang ano. Kaya ako, sumama ako sa U.S. para ako'y tumestigo laban kay Marcos[.][112]Petitioner Carmencita Florentino, also from the informal settlers' sector, testified as to her forcible abduction, torture, and detention:
Magandang hapon po sa inyo. Aka po si Cannencita Florentino. Isa po akong leader ng urban poor. Ipinaglalaban naming iyong karapatan namin sa paninirahan doon na expropriation law. April 1977 po dumating po iyong mga Metrocom may mga kasamang pulis ng Quezon City may mga armalite po sila, sapilitan po nila . . . marami po sila, siguro hindi lang isang daan. Pinasok po nang sapilitan iyong bahay naming, kasalukuyan po alas syete ng gabi. . . . Niransack po iyong bahay naming pagkatapos kinaladkad po iyong asawa ko. lyong anak ko po na siyam na taong babae na nag iisa. Aka po, halos nahubaran na aka dahil pinipilit po akong arestuhin, kaming mag-asawa . . . At sinasabing ako'y leader ng komunista na hindi ko naman po naiintindihan iyon. Ang alam ko po pinaglalaban lang namin karapatan namin sa paninirahan sa Barangay Tatalon. Sapilitan po halos napunit na po iyong damit ko. Ibinalibag aka doon sa ... palabas po ng pinto dahil hinahabol ko iyong asawa ko na hinampas po ng armalite nung mga Metrocom na iyon. Tumama po ang likod ko sa pintuan namin, iyong kanto namin na halos mapilay na po ako. Pagkatapos po dinala kami sa Camp Crame, iyong asawa ko hindi ko na po nakita. lyong anak ko nasa custody daw ng mga sundalo. Ako pinaglipat-lipat kung saan saan doon 'di ko na matandaan e, may ESV, JAGO, na iniiterrogate aka, tinatanong sino iyong pinuno, sino iyong pinuno namin. Hindi ko po alam, wala akong maisagot. Kaya po sa pagkakataon na iyon, tumutulo na po iyong, akala ko po sipon lang, dugo na pala ang lumalabas sa bibig ko saka sa ilong ko po dahil, hindi ko alam kung anong nangyari doon sa siyam na taong anak ko na babae, nahiwalay sa akin. Masyado po ang pahirap na ginawa nita doon, na kulang na lang na ma-rape ako. Inaasa ko na lang po ang aking sarili sa Panginoong Diyos kung anuman ang mangyari sa akin, tatanggapin ko na. Pero iyong anak ko, iyong babae, hindi ko siya makita, dahil aka nakabukod, bukod-bukod kami. Natawanan ko iyong aking mga officer, buntis ho, ikinulong din pala. Kaya sobra ho ang hirap na inabot naming noong panahon ng martial law, na masyado na kaming ... hanggang ngayon taglay ko pa rin po ... sa baga ko may pilat, hindi nawawala, sinusumpong po paminsan minsan lalo pa nga pag naalala ko ang ganito na iniinterview kami kung maaari ayaw ko nang magpainterview dahil ano po e mahirap, napakasakit pong tanggapin. Pinalaya po kami pansamantala ng anak ko, nagkita kami ng anak ko. Isang buwan po kami sa Camp Crame, pansamantala pinalaya kaming mag-ina dahil sa humanitarian daw po pero binabantayan pa rin kami sa bahay namin, hindi kami makalayong mag-ina. At tuwing Sabado nagrereport po kami dyan sa Camp Crame. Ang asawa ko po nakakulong sa Bicutan kasama po nila Ka Trining. Hanggang ngayon po trauma na rin po iyong anak ko kahit nga po may pamilya na ayaw nang tumira dito sa Pilipinas dahil baka po makulong uli kami. Iyon lang po.[113]Petitioner Felix Dalisay testified as to the lifelong trauma of the Martial Law years:
Magandang hapon po sa ating lahat. Felix Dalisay po, 64 years old. Sapilitan po akong hinuli, kinulong ng mga panahon ng Martial Law sometime '73, '74. Almost, kung tututalin po lahat nang pagkakakulong ko hindi naman tuloy-tuloy, almost three years po. ... Sa Kampo Crame po sa panahon ng interrogation, nakaranas po ako nang ibat-ibang klase nang pagmaltrato. Nandyan po iyong pagka hindi maganda ang sagot mo sa mga tanong nila, nakakatanggap po ako ng karate chop, mga suntok po sa tagiliran na alam nyo naman ang katawan ko maliit lang noong araw, ang pakiramdam ko e bale na ata iyong tadyang ko rito e. Andyan rin po iyong ipitan nang bala ng 45 ang kamay mo, didiinan ng ganyan po. Meron din pong mga suntok sa iba't ibang parte ng katawan. May pagkakataon po na minsan natadyakan po ako, tinadyakan po ako, bumagsak sa isang parting mabato kaya hanggang ngayon po may pilat po ako dito. Ang pinakamabigat po kasi na nangyari sa akin sa panahon nang interrogation, kung minsan kasi kami pag ka iniinterrogate hindi na ho naming matiis ang mga sakit so nakakapagsalita kami nang mga taong nakasama namin. So, noong panahon po na iyon, gabi noon, so may mga nabanggit ako during interrogation ng mga tao na mga nakasama ko so niraid po namin iyon, sinamahan ko sila. E marahil siguro iyong mga dati kong kasama e nabalitaang nahuli na ako, nagtakbuhan na po siguro so wala kaming inabot. Ang mabigat na parte po noon galit nag alit ang mga sundalo ng FIFSEC po iyon. Ang FIFSEC po Fifth Constabulary Security iyon e pinaka notorious na torturer noong panahon ng Martial Law, marami po iyan. So ang pinakamabigat po roon kasi sa totoo po ngayon mabuti pa iyong LALU victim may mga counseling pero kami po ang mga biktima (crying) hanggang ngayon po wala pa ho kaming natatanggap (sniffiing) maski hustisya, mga counseling na yan. At ang masakit sa akin ako po nagiging emotional po ako hindi lang po sa sarili ko. . . . Marami pa pong mga biktima dyan ma'am na talagang maaawa ka. Grabe po. lyong sa akin po ang pinaka matindi po akala ko isasalvage na po ako. Dinala po ako sa isang madilim na lugar dyan sa Libis, Quezon City sa Eastwood, noong panahon pong iyun medyo gubatan po iyun pinaihi kami sabi naiihi ako nakarinig na lang po ako ng putok sa kaliwang bahagi ng tenga ko. Akala ko patay na ako. Tapos mga pompyang, pompyang po na iyan pag sinabi pong pompyang na mga ganyan. Hanggang ngayon po sa totoo po humina po ang aking pandinig. Hindi naman ako tuluyang nabingi, mahina po kaya pagka may tumatawag sa akin sa cellphone sabi ko pakitext mo na lang, naulinigan ko ang hoses nyo pero ahhh hindi ko maintindihan. So pakiusap lang sana sa totoo lang po Ma'am dito maaring nagsasabi ang iba forget about the past ilibing na natin yan dyan. Sa amin pong mga naging biktima. Hindi po ganun kadali iyon. Ang trauma po hanggang ngayon dala-dala namin. Tuwing maaalala naming ang sinapit namin, naiiyak kami, naaawa kami sa sarili namin. Tapos ngayon sasabihin nila forget about the past. Paano kaming mga naging biktima. Hanggang ngayon nga wala pa kaming katarungan e. Andyan nga may Ten Billion, ang human rights ... mga nauna naman yan e. Hindi ba nirecover natin yan. Tapos ngayon ang sasabihin nila Marcos is a hero. No, hindi po. Hindi po matatapos yan. So hanggang doon na lang po, sana. Sana po pagbigyan nyo kami. Dahil kami sa parte ng mga biktima payagan man ng Supreme Court nailibing yan diyan, di po kami titigil sa pakikipaglaban namin sapagkat kami nagkaranas nang lupit ng Martial Law hanggang, habang buhay po naming dala yan. Salamat po.[114]All these accounts occurred during the Marcos regime. By no stretch of the imagination, then, can Ferdinand E. Marcos' memory serve as an inspiration, to be emulated by generations of Filipinos.
Contemporarily, even the National Historical Commission took a clear position against the interment of Ferdinand E. Marcos at the Libingan ng mga Bayani.
The National Historical Commission was established by law as "the primary government agency responsible for history"[115] given the mandate "to determine all factual matters relating to official Philippine history."[116]
Among others, it is given the task to:
(a) conduct and support all kinds of research relating to Philippine national and local history;The National Historical Commission's Board is given the power to "discuss and resolve, with finality, issues or conflicts on Philippine History."[118] The Chair of the National Historical Commission is mandated to "advise the President and Congress on matters relating to Philippine history."[119]
(b) develop educational materials in various media, implement historical educational activities for the popularization of Philippine history, and disseminate information regarding Philippine historical events, dates, places and personages;
(c) undertake and prescribe the manner of restoration, conservation and protection of the country's historical movable and immovable objects;
(d) manage, maintain and administer national shrines, monuments, historical sites, edifices and landmarks of significant historico-cultural value; and
(e) actively engage in the settlement or resolution of controversies or issues relative to historical personages, p1aces, dates and events.[117]
In these statutory capacities, the National Historical Commission published its study entitled "Why Ferdinand Marcos Should not be Buried at the Libingan ng mga Bayani" on July 12, 2016.[120]
The study was based on the declassified documents in the Philippine Archives Collection of the United States National Archives/National Archives and Records Administration and the websites of pertinent United States government agencies and some officially sanctioned biographies of Ferdinand E. Marcos. It concluded that:
"With regard to Mr. Marcos' war medals, we have established that Mr. Marcos did not receive, as the wartime history of the Ang Mga Maharlika and Marcos' authorized biography claim, the Distinguished Service Cross, the Silver Medal, and the Order of the Purple Heart. In the hierarchy of primary sources, official biographies and memoirs do not rank at the top and are never taken at face value because of their self serving orientation, as it is abundantly palpable in Mr. Marcos' sanctioned biographies. In a leader's earnestness to project himself to present and succeeding generations as strong and heroic, personally authorized accounts tend to suffer from a shortage of facts and a bounty of embellishment."The Court's findings in a catena of cases in its jurisprudence, a legislative determination in Republic Act No. 10368, the findings of the National Historical Commission, and the actual testimony of petitioners during the Oral Arguments clearly show that the life of Ferdinand E. Marcos either as President or as a soldier is bereft of inspiration. Ferdinand E. Marcos should not be the subject of emulation of this generation, or of generations yet to come.
"With respect to Mr. Marcos' guerilla unit, the Ang Mga Maharlika was never recognized during the war and neither was Mr. Marcos' leadership of it. Note that other guerilla units in northern Luzon were recognized, such as:
103rd Regiment, East Central Luzon
Pangasinan Anti-Crime Service, Pangasinan Military Area, LGAF
100th Bn/100th Inf. Regiment LGAFA
Southern Pangasinan Guerilla Forces (Gonzalo C. Mendoza Commander).
"Furthermore, grave doubts expressed in the military records about Mr. Marcos' actions and character as a soldier do not provide sound, unassailable basis for the recognition of a soldier who deserves to be buried at the LNMB.
"On these grounds, coupled with Mr. Marcos' lies about his medals, the NATIONAL HISTORICAL COMMISSION OF THE PHILIPPINES opposes the plan to bury Mr. Marcos at the Libingan ng mga Bayani."[121]
Assuming without accepting that Republic Act No. 289 authorized public respondents to determine who has led a life worthy of "inspiration and emulation," and assuming further that it was under this authority that they directed Ferdinand E. Marcos' interment, the President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders were still issued with grave abuse of discretion because they were whimsical and capricious.
Considering the state of existing law and jurisprudence as well as the findings of the National Historical Commission, there was no showing that respondents conducted any evaluation process to determine whether Ferdinand E. Marcos deserved to be buried at the Libingan ng mga Bayani.
Respondents' actions were based upon the President's verbal orders, devoid of any assessment of fact that would overcome what had already been established by law and jurisprudence.
The Solicitor General can only state that:
41. During the campaign period leading to the May 2016 elections, President Duterte, then only a candidate to the highest executive post in the land, openly expressed his desire to have the remains of former President Marcos interred at the Libingan.President Duterte himself publicly admitted that Ferdinand E. Marcos was no hero.[123] This much was also admitted by the Solicitor General:[124]
42. On 9 May 2016, more than 16 million voters elected President Duterte to the position.
43. True to his campaign promise of unifying the nation, President Duterte gave verbal orders on 11 July 2016 to Defense Secretary Lorenzana to effect the interment of the remains of former President Marcos at the Libingan.
44. On 7 August 2016, and pursuant to the verbal orders of the President, Defense Secretary Lorenzana issued a Memorandum addressed to AFP Chief of Staff General Ricardo R. Visaya informing him of the verbal orders of the President, and for this purpose, to "undertake the necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security requirements."
45. In the same Memorandum, Defense Secretary Lorenzana tasked the PVAO as the "OPR" (Office of Primary Responsibility) for the interment of the remains of former President Marcos, as the Libingan is under the PVAO's supervision and administration. Defense Secretary Lorenzana likewise directed the Administrator of the PVAO to designate the focal person for and overseer of the event.
46. On 9 August 2016, Rear Admiral Emesto Enriquez, by command of General Visaya, issued a Directive to the Commanding General of the Philippine Army to prepare a grave for former President Marcos at the Libingan.[122]
SOLICITOR GENERAL CALIDA:Honorable Chief Justice and Associate Justices: At this moment in our history, I recall a scene from Julius Caesar where Marc Anthony spoke to his countrymen: "I come to bury Caesar, not to praise him, The evil that men do lives after them, the good is oft interred in their bones." Inspired by these lines, I now come to your honors to allow the State to bury the remains of former President Ferdinand Marcos at the Libingan ng Mga Bayani, not to honor him as a hero even if by military standards he is. But to accord him the simple mortuary rites befitting a former president, commander-in-chief, war veteran and soldier.[125]
The Filipino People themselves deemed Marcos an unfit President and discharged him from office through a direct exercise of their sovereign power. This has been repeatedly recognized by this Court.
In Lawyers League for a Better Philippines v. Aquino:[126]
The three petitions obviously are not impressed with merit. Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but is in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government.
Moreover, the sentiment of the sovereign People, reacting to the blight that was the Marcos dictatorship, was enunciated in Proclamation No. 3:
WHEREAS, the new government was installed through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of the Philippines;Further, in articulating the mandate of the People, Article 2, Section I of Proclamation No. 3 enumerated the many evils perpetuated during the Marcos regime, which the new government would be charged to dismantle:
WHEREAS, the heroic action of the people was done in defiance of the provisions of the 1973 Constitution, as amended;
WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the complete reorganization of the government, restoration of democracy, protection of basic rights, rebuilding of confidence in the entire governmental system, eradication of graft and corruption, restoration of peace and order, maintenance of the supremacy of civilian authority over the military, and the transition to a government under a New Constitution in the shortest time possible;
Public respondents neglect to examine the entirety of Ferdinand E. Marcos' life, despite the notoriety of his latter years. The willful ignorance of the pronouncements from all three branches of government and of the judgment of the People themselves can only be characterized as so arbitrary and whimsical as to constitute grave abuse of discretion.Article II
The President, the Vice-President, and the Cabinet
SECTION 1. Until a legislature is elected and convened under a new Constitution, the President shall continue to exercise legislative power.
The President shall give priority to measures to achieve the mandate of the people to:
Republic Act No. 10368, otherwise known as the Human Rights Victims Reparation and Recognition Act of 2013, contains a legislative finding that gross human rights violations were committed during the Marcos regime. It provides for both the recognition of the sufferings of human rights victims as well as the provision for effective remedies.
Recognition of human rights and of the goal of achieving social justice is a primordial shift in our constitutional order. This shift was occasioned by the experiences of our society during Martial Law. This is evident in some discussions in the Constitutional Convention.
Commissioner Edmundo Garcia, speaking on the necessity of a Commission on Human Rights, emphasized:
Precisely, one of the reasons why it is important for this body to be constitutionalized is the fact that regardless of who is the President or who holds the executive power, the human rights issue is of such importance that it should be safeguarded and it should be independent of political parties or power that are actually holding the reins of government. Our experience during the martial law period made us realize how precious those rights are and, therefore, these must be safeguarded at all times.Commissioner Jose Nolledo, sponsoring the provision that declares an independent foreign policy for the Philippines, also stated:
Hence, Section 11, Article II of the 1987 Constitution thus reads, "(t)he State values the dignity of every human person and guarantees full respect for human rights." To breathe life into this State policy, the Commission on Human Rights was created and was envisioned as an independent office, free from political interference.[127]
The Marcos regime has wrought great havoc to our country. It has intensified insurgency and is guilty of rampant violations of human rights and and injustices it has committed. It has brought about economic turmoil. It has institutionalized widespread graft and corruption in all levels of government and it has bled the National treasury, resulting in great financial hemorrhage of our country.[128]Former Associate Justice Cecilia Muñoz Palma, the 1986 Constitutional Commission President, in her closing speech, alluded to the experience during Martial Law as a motivating force operating in the background of the crafting of the new Constitution:
A beautiful irony which cannot be overlooked is the fact that this new Constitution was discussed, debated, and fmally written within the walls of this hall which saw the emergence of what was called by its author a "constitutional authoritarianism", but which, in effect, was a dictatorship, pure and simple. This hall was the seat of a combined executive and legislative power skillfully placed in the hands of one man for more than a decade. However, the miracle of prayer and of a people's faith and determined struggle to break the shackles of dictatorship toppled down the structure of despotism and converted this hall into hallowed grounds where the seeds of a newly found freedom have been sown and have borne fruit.
My countrymen, we open the new Charter with a Preamble which is the beacon light that shines and brightens the path in building a new structure of government for our people. In that Preamble is expounded in positive terms our goals and aspirations. Thus, imploring the aid of Almighty God, we shall establish a just and humane society, a social order that upholds the dignity of man, for as a Christian nation, we adhere to the principle that, and I quote: "the dignity of man and the common good of society demand that society must be based on justice." We uphold our independence and a democratic way of life and, abhorring despotism and tyranny, we bind ourselves to live under the rule of law where no man is above the law, and where truth, justice, freedom, equality, love and peace will prevail.
For the first time in the history of constitution making in this country, the word "love" is enshrined in the fundamental law. This is most significant at this period in our national life when the nation is bleeding under the forces of hatred and violence. Love which begets understanding is necessary if reconciliation is to be achieved among the warring factions and conflicting ideologies now gripping the country. Love is imperative if peace is to be restored in our nativeland, for without love there can be no peace.
We have established a republican democratic form of government where sovereignty resides in the people and civilian supremacy over the military is upheld.
For the first time, the Charter contains an all-embracing expanded Bill of Rights which constitutes the cornerstone of the structure of government. Traditional rights and freedoms which are hallmarks of our democratic way of life are reaffirmed. The right to life, liberty and property, due process, equal protection of the laws, freedom of religion, speech, the press, peaceful assembly, among others, are reasserted and guaranteed. The Marcos provision that search warrants or warrants of arrest may [be] issued not only by a judge but by any responsible officer authorized by law is discarded. Never again will the Filipino people be victims of the much-condemned presidential detention action or PDA or presidential commitment orders, the PCOs, which desecrate the rights to life and liberty, for under the new provision a search warrant or warrant of arrest may be issued only by a judge. Mention must be made of some new features in the Bill of Rights, such as the privilege of the writ of habeas corpus can be suspended only in cases of invasion or rebellion, and the right to bail is not impaired during such suspension, thereby discarding jurisprudence laid down by the Supreme Court under the Marcos dispensation that the suspension of the privilege of the writ carried with it the suspension of the right to bail. The death penalty is abolished, and physical, psychological or degrading punishment against prisoners or detainees, substandard and subhuman conditions in penitentiaries are condemned.
For the first time, the Constitution provides for the creation of a Commission on Human Rights entrusted with the grave responsibility of investigating violations of civil and political rights by any party or groups and recommending remedies therefor.
From the Bill of Rights we proceed to the structure of government established in the new Charter.
We have established the presidential system of government with three branches the legislative, executive, and judicial each separate and independent of each other, but affording an effective check and balance of one over the other.
All legislative power is returned and exclusively vested in a bicameral legislature where the Members are elected by the people for a definite term, subject to limitations for reelection, disqualification to hold any other office or employment in the government including government-owned or controlled cotporations and, among others, they may not even appear as counsel before any court of justice.
For the first time in our Constitution, 20 percent of Members the Lower House are to be elected through a party list system and, for three consecutive terms after the ratification of the Constitution, 25 of the seats shall be allocated to sectoral representatives from labor, peasant, urban poor, indigenous cultural communities, women, youth and other sectors as may be provided by law. This innovation is a product of the signs of the times when there is an intensive clamor for expanding the horizons of participatory democracy among the people.
The executive power is vested in the President of the Philippines elected by the people for a six-year term with no reelection for the duration of his/her life. While traditional powers inherent in the office of the President are granted, nonetheless for the first time, there are specific provisions which curtail the extent of such powers. Most significant is the power of the Chief Executive to suspend the privilege of the writ of habeas cotpus or proclaim martial law.
The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the imposition of martial law for more than eight years and the suspension of the privilege of the writ even after the lifting of martial law in 1981. The new Constitution now provides that those powers can be exercised only in two cases, invasion or rebellion when public safety demands it, only for a period not exceeding 60 days, and reserving to Congress the power to revoke such suspension or proclamation of martial law which congressional action may not be revoked by the President. More importantly, the action of the President is made subject to judicial review thereby again discarding jurisprudence which render the executive action a political question and beyond the jurisdiction of the courts to adjudicate.
For the first time, there is a provision that the state of martial law does not suspend the operation of the Constitution nor abolish civil courts or legislative assemblies, or vest jurisdiction to military tribunals over civilians, or suspend the privilege of the writ. Please forgive me if, at this point, I state that this constitutional provision vindicates the dissenting opinions I have written during my tenure in the Supreme Court in the martial law cases.[129]
In part, to implement these safeguards for human rights, Republic Act No. 10368 was passed. Its statement of policy is found in Section 2:
Section 2. Declaration of Policy. - Section 11 of Article II of the 1987 Constitution of the Republic of the Philippines declares that the State values the dignity of every human person and guarantees full respect for human rights. Pursuant to this declared policy, Section 12 of Article III of the Constitution prohibits the use of torture, force, violence, threat, intimidation or any other means which vitiate the free will and mandates the compensation and rehabilitation of victims of torture or similar practices and their families.Thus, Section 2 of Republic Act No. 10368 states (2) two state policies: (i) "to acknowledge the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations" committed from September 21, 1972 to February 25, 1986 during the Marcos regime; and (ii) to restore their honor and dignity.[130]
By virtue of Section 2 of Article II of the Constitution adopting generally accepted principles of international law as part of the law of the land, the Philippines adheres to international human rights laws and conventions, the Universal Declaration of Human Rights, including the International Convenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, and even if the violation is committed by persons acting in an official capacity. In fact, the right to a remedy is itself guaranteed under existing human rights treaties and/or customary international law, being peremptory in character (jus cogens) and as such has been recognized as non-derogable.
Consistent with the foregoing, it is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.
Similarly, it is the obligation of the State to acknowledge the sufferings and damages inflicted upon persons whose properties or businesses were forcibly taken over, sequestered or used, or those whose professions were damaged and/or impaired, or those whose freedom of movement was restricted and/or impaired, and/or such other victims of the violations of the Bill of Rights.
Section 2 of Republic Act No. 10368 likewise acknowledges the State's moral and legal obligation to recognize and provide reparation to the victims and/or their families for the deaths, injuries, sufferings, deprivations, and damages they suffered under the Marcos regime. The State also expressly acknowledged the sufferings and damages inflicted upon: (i) persons whose properties or businesses were forcibly taken over, sequestered or used; (ii) those whose professions were damaged and/or impaired; (iii) those whose freedom of movement was restricted; and/or (iv) such other victims of the violations of the Bill ofRights.[131]
The bases of these policies[132] are found in the Constitution. Section 11 of Article II of the 1987 Constitution provides:
Related to Article II, Section 11 is Section 9, which provides:ARTICLE II . . . .
. . . .
State Policies
SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.
SECTION 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.Article II, Section 10 goes further:
SECTION 10. The State shall promote social justice in all phases of national development.These enhance the rights that are already enshrined in the Bill of Rights.[133]
Under the Bill of Rights, Article III, Section 12 (2) and (4) of the Constitution provides:[134]
Republic Act No. 10368 provides for both government policy in relation to the treatment of Martial Law victims as well as these victims' reparation and recognition. It creates a Human Rights Victims' Claims Board[135] and provides for its powers.[136] Among the powers of the Board is to "approve with finality all eligible claims"[137] under the law.ARTICLE III
Bill of Rights
. . . .
SECTION 12....
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
. . . .
(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.
This law provides for the process of recognition of Martial Law victims.[138] There are victims who are allowed to initiate their petitions,[139] those who are conclusively presumed,[140] and those who may be motu proprio be recognized by the Board[141] even without an initiatory petition.
Republic Act No. 10368 codifies four (4) obligations of the State in relation to the Martial Law regime of Ferdinand E. Marcos:
First, to recognize the heroism and sacrifices of victims of summary execution, torture, enforced or involuntary disappearance, and other gross violations of human rights;
Second, to restore the honor and dignity of human rights victims;
Third, to provide reparation to human rights victims and their families; and
Fourth, to ensure that there are effective remedies to these human rights violations.
Based on the text of this law, human rights violations during the "regime of former President Ferdinand E. Marcos covering the period from September 21, 1072 to February 25, 1986" are recognized. Despite his claim of having won the snap elections for President in 1985, Ferdinand E. Marcos was unceremoniously spirited away from Malacanang to Hawaii as a result of the People's uprising now known as "People Power." The legitimacy of his ouster from power was subsequently acknowledged by this Court in Lawyers' League for a Better Philippines and in In re Saturnino Bernardez, which were both decided in 1986.
This recognition of human rights violations is even clearer m the law's definition of terms in Republic Act No. 10368, Section 3(b):
(b) Human rights violation refers to any act or omission committed during the period from September 21, 1972 to February 25, 1986 by persons acting in an official capacity and/or agents of the State, but shall not be limited to the following:Human rights violations during Martial Law were state-sponsored. Thus, Republic Act No. 10368, Section 3(c) defines Human Rights Victims as:(1) Any search, arrest and/or detention without a valid search warrant or warrant of arrest issued by a civilian court of law, including any warrantless arrest or detention carried out pursuant to the declaration of Martial Law by former President Ferdinand E. Marcos as well as any arrest, detention or deprivation of liberty carried out during the covered period on the basis of an Arrest, Search and Seizure Order (ASSO), a Presidential Commitment Order (PCO), or a Preventive Detention Action (PDA) and such other similar executive issuances as defined by decrees of former President Ferdinand E. Marcos, or in ay manner that the arrest, detention or deprivation ofliberty was effected;
(2) The infliction by a person acting in an official capacity and or an agent of the State of physical injury, torture, killing, or violation of other human rights, of any person exercising civil or political rights, including but not limited to the freedom of speech, assembly or organization; and/or the right to petition the government for redress of grievances, even if such violation took place during or in the course of what the authorities at the time deemed an illegal assembly or demonstration: Provided, That torture in any form or under any circumstance shall be considered a human rights violation;
(3) Any enforced or involuntary disappearance caused upon a person who was arrested, detained or abducted against one's will or otherwise deprived of one's liberty, as defined in Republic Act No. 10350, otherwise known as the Anti-Enforced or Involuntary Disappearance Act of 2012;
(4) Any force or intimidation causing the involuntary exile of a person from the Philippines;
(5) Any act of force, intimidation or deceit causing unjust or illegal takeover of a business, confiscation of property, detention of owner/s and or their families, deprivation of livelihood of a person by agents of the State, including those caused by Ferdinand E. Marcos, his spouse Imelda R. Marcos, their immediate relatives by consanguinity or affmity, as well as those persons considered as among their close relatives, associates, cronies and subordinates under Executive Order No. 1, issued on February 28, 1986 by then President Corazon C. Aquino in the exercise of her legislative powers under the Freedom Constitution;'
(6) Any act or series of acts causing, committing and/or conducting the following:"(i) Kidnapping or otherwise exploiting children of persons suspected of committing acts against the Marcos regime;
"(ii) Committing sexual offenses against human rights victims who are detained and/or in the course of conducting military and/or police operations; and
"(iii) Other violations and/or abuses similar or analogous to the above, including those recognized by international law."[142]
(c) Human Rights Violations Victim (HRVV) refers to a person whose human rights were violated by persons acting in an official capacity and/or agents of the State as defined herein. In order to qualifY for reparation under this Act, the human rights violation must have been committed during the period from September 21, 1972 to February 25, 1986: Provided however, That victims of human rights violations that were committed one (1) month before September 21, 1972 and one (1) month after February 25, 1986 shall be entitled to reparation under this Act if they can establish that the violation was committed:Section 3(d) of this law defines the violators to include persons acting in an official capacity and/or agents of the State:(1) By agents of the State and/or persons acting in an official capacity as defined hereunder;
(2) For the purpose of preserving, maintaining, supporting or promoting the said regime; or
(3) To conceal abuses during the Marcos regime and/or the effects of Martial Law.[143]
(d) Persons Acting in an Official Capacity and/or Agents of the State. - The following persons shall be deemed persons acting in an official capacity and/or agents of the State under this Act:In clear and unmistakable terms, the law recognizes the culpability of Ferdinand E. Marcos for acts of summary execution, torture, enforced or involuntary disappearances, and other gross violations of human rights. The law likewise implies that not only was he the President that presided over those violations, but that he and his spouse, relatives, associates, cronies, and subordinates were active participants.(1) Any member of the former Philippine Constabulary (PC), the former Integrated National Policy (INP), the Armed Forces of the Philippines (AFP) and the Civilian Home Defense Force (CHDF) from September 21, 1972 to February 25, 1986 as well as any civilian agent attached thereto: and any member of a paramilitary group even if one is not organically part of the PC, the INP, the AFP or the CHDF so long as it is shown that the group was organized, funded, supplied with equipment, facilities and/or resources, and/or indoctrinated, controlled and/or supervised by any person acting in an official capacity and/or agent of the State as herein defined;
(2) Any member of the civil service, including persons who held elective or appointive public office at any time from September 21, 1972 to February 25, 1986;
(3) Persons referred to in Section 2 (a) of Executive Order No. 1, creating the Presidential Commission on Good Government (PCGG), issued on February 28, 1986 and related laws by then President Corazon C. Aquino in the exercise of her legislative powers under the Freedom Constitution, including former President Ferdinand E. Marcos, spouse Imelda R. Marcos, their immediate relatives by consanguinity or affinity, as well as their close relatives, associates, cronies and subordinates; and
(4) Any person or group/s of persons acting with the authorization, support or acquiescence of the State during the Marcos regime.[144]
Burying the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani violates Republic Act No. 10368 as the act may be considered as an effort "to conceal abuses during the Marcos regime" or to "conceal ... the effects of Martial Law."[145] Its symbolism is unmistakable. It undermines the recognition of his complicity. Clearly, it is illegal.
"Libingan ng mga Bayani" is a label created by a presidential proclamation. The Libingan ng mga Bayani was formerly known as the Republic Memorial Cemetery. In 1954, under Proclamation No. 86, the Republic Memorial Cemetery was renamed to Libingan ng mga Bayani for symbolic purposes, to express esteem and reverence for those buried there:
WHEREAS, the name "Republic Memorial Cemetery" at Fort Wm McKinley, Rizal province, is not symbolic of the cause for which our soldiers have died, and does not truly express the nation's esteem and reverence for her war dead;Thus, Proclamation No. 86 is a recognition of the nation's intent to honor, esteem, and revere its war dead. To further this intention, it changed the name of the cemetery to the Libingan ng mga Bayani. From this act alone, it is clear that the name of the cemetery conveys meaning. The Libingan ng mga Bayani was named as such to honor and esteem those who are and will be buried there.
NOW, THEREFORE, I, Ramon Magsaysay, President of the Philippines, by virtue of the powers vested in me by law, do hereby declare that the "Republic Memorial Cemetery" shall henceforth be called "LIBINGAN NG MGA BAYANI".
If there was no intention to bestow any recognition upon Ferdinand E. Marcos as a hero, then he should not be buried at the Libingan ng mga Bayani. If the President wanted to allot a portion of public property to bury Ferdinand E. Marcos without according him the title of a hero, the President had other options. The President had the power to select a different cemetery where Marcos was to be buried.
Likewise, before ordering the interment, the President did not amend the name through his own presidential proclamation. Therefore, the intent to bury him with honors is clearly legible, totally unequivocal, and dangerously palpable.
Having the remains of Ferdinand E. Marcos in a national shrine called the Libingan ng mga Bayani undeniably elevates his status. It produces an indelible remark on our history. It commingles his name and his notorious legacy with the distinctively heroic and exemplary actions of all those privileged to be buried there.
The transfer of Ferdinand E. Marcos' remains violates the policy of full and public disclosure of the truth. It produces an inaccurate account of the violations committed. It will fail to educate all sectors of society and all generations of the human rights violations committed under his watch. It is a violation of the fundamental statutory policy of recognition of the human rights violations committed during the Marcos regime.
As pointed out by the Commission on Human Rights:
17. Crucial to the Satisfaction component of effective reparation is the official acknowledgement of the truth of the abuses and violations that the victim suffered, including an acknowledgement of the responsibility of the perpetrator as well as a public apology.The interment of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani necessarily implies two (2) things: the honoring of Ferdinand E. Marcos; and the allotting of a portion of public property for this act.
18. Burying the remains of Ferdinand Marcos at the LNMB with the pomp and pageantry accorded to a hero is the complete antithesis of any such apology, and would constitute a denial or reversal of any previous acknowledgement of his many sins against the victims of human rights violations under his government. It is an act that, for all of the discussion as to what "bayani" means, will inevitably extol him and his actions in government for all future generations....
19. Moreover, the burial of Mr. Marcos' remains at the LNMB sends a very dangerous message to Philippine society and even to the world by treating him as a hero, and violates the Guarantee of NonRepetition component of effective reparations....
20. To bury a legally confirmed human rights violator as hero would fly in the face of any effort to educate the Filipino people on the importance of human rights, and would, rather than promote reform in favor of respect for human rights, tend to promote impunity by honoring a man known all over the world for having perpetrated human rights violations for nearly two decades in order to perpetuate his hold on power;
21. Worse still, this would even send a message to other leaders that adopting a similar path of abuse and violations that characterized the Marcos dictatorship would ultimately result not in condemnation but instead acknowledgment and accolades of heroism, constituting thereby a set of circumstance not contemplated by the holistic notion of reparation, in particular violating both the standard of Satisfaction and the Guarantee of Non-Repetition. Therefore, this will not only deprive the victims of human rights violations of their right to effective reparations but will place future generations in genuine peril of the real prospect of coming face-to-face once more with authoritarian rule characterized by rampant human rights violations.[146]
The act of burying in itself has always been more than an act of disposing of dead bodies. A burial is a manner of memorializing and paying respects to a deceased person. Implicit in these ceremonies is the preservation of the memory of the person for his good or valiant deeds.
This cultural practice is not limited to private persons. The same practice applies when it is the State burying the deceased person. The act of burying a body under the sanction of the State means that it is the State itself paying its respects to the dead person and memorializing him or her for his or her good and valiant deeds. It is never done to remember past transgressions. Thus, burials are acts of honoring. And when the burial is state-sanctioned, it is the State that honors the deceased person.
This is more emphasized when the place of interment is the Libingan ng mga Bayani. Again, whether or not one subscribes to the idea that the Libingan nga mga Bayani is a cemetery for the country's heroes, from the public's perspective, those buried at the Libingan ng mga Bayani are respected, revered, admired, and seen with high regard. To say otherwise is ridiculous. Although not all who are buried at the Libingan ng mga Bayani are recognized by the public, the public recognizes the distinction of being buried there. Those who are and will be buried there are accorded honors not only by their own families, but by the State itself.
It is impossible for the State to bury Ferdinand E. Marcos at the Libingan ng mga Bayani without according him, or his memory, any honor.
Given these considerations, the transfer of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani violates Republic Act No. 10368. It is inconsistent with the State's public policies as stated in Republic Act No. 10368.
In Avon Cosmetics, Inc. v. Luna,[147] this Court discussed the meaning and relevance of public policy:
And what is public policy? In the words of the eminent Spanish jurist, Don Jose Maria Manresa, in his commentaries of the Codigo Civil, public policy (orden publico):The State's fundamental policies are laid out in the Constitution. The rest are embodied in statutes enacted by the legislature. The determination of policies is a legislative function, consistent with the Congress' power to make, alter, and repeallaws.[149][R]epresents in the law of persons the public, social and legal interest, that which is permanent and essential of the institutions, that which, even if favoring an individual in whom the right lies, cannot be left to his own will. It is an idea which, in cases of the waiver of any right, is manifested with clearness and force.As applied to agreements, Quintus Mucius Scaevola, another distinguished civilist gives the term "public policy" a more defined meaning:Agreements in violation of orden public must be considered as those which conflict with law, whether properly, strictly and wholly a public law (derecho) or whether a law of the person, but law which in certain respects affects the interest of society.Plainly put, public policy is that principle of the law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good. As applied to contracts, in the absence of express legislation or constitutional prohibition, a court, in order to declare a contract void as against public policy, must find that the contract as to the consideration or thing to be done, has a tendency to injure the public, is against the public good, or contravenes some established interests of society, or is inconsistent with sound policy and good morals, or tends clearly to undermine the security of individual rights, whether of personal liability or of private property.[148] (Emphasis supplied, citations omitted)
It is not the President alone who determines the State's policies. The President is always bound by the Constitution and the State's statutes and is constitutionally mandated to "ensure that the laws be faithfully executed."[150] To execute laws, the President must faithfully comply with all of them. He cannot ignore the laws for a particular group of people or for private interests. The President cannot ignore the laws to execute a policy that he determined on his own. He cannot ignore the laws to fulfill a campaign promise that may or may not have been the reason why he won the People's votes. Thus, the President is bound to comply with and execute Republic Act No. 10368.
Republic Act No. 10368's state policies are again as follows:
First, to recognize the heroism and sacrifices of all Filipinos who had been victims of summary execution, torture, enforced or involuntary disappearance, and other gross human rights violations committed during the regime of Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986; and
Second, to restore the victims' honor and dignity.
The nature of Ferdinand E. Marcos' burial at the Libingan ng mga Bayani contravenes these public policies. The State's act of according any honor to Ferdinand E. Marcos grossly contradicts, and is highly irreconcilable with, its own public policies to recognize the heroism and sacrifices of the Martial Law victims and restore these victims' honor and dignity.
To allow Ferdinand E. Marcos' burial is inconsistent with honoring the memory of the Martial Law victims. It conflicts with their recognized heroism and sacrifice, and as most of them testified, it opens an avenue for their re-traumatization. These victims' honor, which the State avowed to restore, is suddenly questionable because the State is also according honor and allotting public property to the person responsible for their victimization. The victims' state recognition is put into doubt when the President decided to act favorably towards the person who victimized them.
Public respondents' contention that Ferdinand E. Marcos will not be buried as a hero, but only as a President, soldier, and Medal of Valor Awardee, fails to convince:
JUSTICE LEONEN:I am not challenging whether the action of the President was regular or not, that's not the point. The point is, you know for a fact that it was a proclamation creating the Libingan ng mga Bayani, and now without changing the name, they are now, the President, according to you, verbally ordered the interment of the remains of the former President. Yet now, you take the position that the intention of government is not to honor the body of Ferdinand Marcos as the body of a hero. Although the Libingan's name is Libingan ng mga Bayani. So, can you explain that?
SOLICITOR GENERAL CALIDA:But, as I said, Your Honor, in my opening statement, that is not the purpose to bury him as a hero. But, by military standards, Your Honor, former President Marcos fits in to the defmition of a hero. As defined by the Lagman's Petition, Your Honor.
JUSTICE LEONEN:Excuse me, Counsel, a while ago, this morning, before we took lunch, you said that there was no intention to honor. In fact, you read from your Comment, that there was no intention to bury the President as a hero.
SOLICITOR GENERAL CALIDA:Yes, we stand by that, Your Honor.
JUSTICE LEONEN:Okay.
SOLICITOR GENERAL CALIDA:However, based on the military standards given to a Medal of Valor awardee, he fits in to the definition which was proposed by Petitioner Lagman, Your Honor.
JUSTICE LEONEN:A Medal of Valor awardee, is he or she a hero?
SOLICITOR GENERAL CALIDA:May I read into the records, Your Honor.
JUSTICE LEONEN:A Medal of Valor, please do not ignore my question.
SOLICITOR GENERAL CALIDA:Yes.
JUSTICE LEONEN:A Medal of Valor awardee, is he a hero or not a hero? Is he or she a hero or not a hero?
SOLICITOR GENERAL CALIDA:Based on the wordings of Presidential Decree 1687, Your Honor, it says here, "The Medal of Valor is the highest award that may be given to a Filipino soldier in recognition of conspicuous acts of gallantry above and beyond a call of duty and in total disregard of personal safety; Whereas, an awardee of the Medal of Valor for his supreme self-sacrifice and distinctive act of gallantry, performed more than ordinarily hazardous service and deserved due recognition from a grateful government and people." ...
JUSTICE LEONEN:Is this a Presidential Decree, Counsel?
SOLICITOR GENERAL CALIDA:... the definition, Your Honor, in the Lagman Petition ...
JUSTICE LEONEN:Is this a Presidential Decree?
SOLICITOR GENERAL CALIDA:Yes, Your Honor.
JUSTICE LEONEN:Who issued the Presidential Decree?
. . . .
SOLICITOR GENERAL CALIDA:Well, a judicial notice can be taken that it was during the term of President Marcos, Your Honor.
JUSTICE LEONEN:Ferdinand Marcos, who is a Medal of Valor awardee, issued this Presidential Decree.
SOLICITOR GENERAL CALIDA:However, Your Honor, the Medal of Valor ...
JUSTICE LEONEN:No, no, no, however, he had the power to issue the Presidential Decree, I'm not questioning that. Okay, my question here, which you ignored, is, is a Medal of Valor awardee a hero?
SOLICITOR GENERAL CALIDA:By the definition, Your Honor, he is a hero.
JUSTICE LEONEN:So, therefore, you are going back against what you said in the Comment ...
SOLICITOR GENERAL CALIDA:But we will set aside that, Your Honor.
JUSTICE LEONEN:How can you set that aside?
SOLICITOR GENERAL CALIDA:We will set it aside because ...
JUSTICE LEONEN:Which part of Marcos will you not bury as a Medal of Valor awardee and which part will you bury?
SOLICITOR GENERAL CALIDA:Because, Your Honor ...
JUSTICE LEONEN:It's the same person.
SOLICITOR GENERAL CALIDA:... President Duterte's announcement is that he will allow the burial not as a hero, but as a former president, a former veteran and a soldier, that's all, Your Honor.[151]
Apart from recogmzmg the normative framework and the acknowledgment of human rights violations during the Marcos regime, the law likewise acknowledges the State's obligation that "any person whose rights or freedoms have been violated shall have an effective remedy."[152]
This right to an "effective remedy" is available even if "the violation is committed by persons acting in an official capacity."[153]
With the recognition of human rights victims of Martial Law, the Board created by Republic Act No. 10368 may provide "awards."[154] Although this award has a monetary value,[155] other duties for government are likewise provided by law. There can be nonmonetary reparation:
Section 5. Nonmonetary Reparation. - The Department of Social Welfare and Development (DSWD), the Department of Education (DepED), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), and such other government agencies shall render the necessary services as nonmonetary reparation for HRVVs and/or their families, as may be determined by the Board pursuant to the provisions of this Act[.][156]The phrase "other government agencies" includes public respondents in these consolidated cases.
The law also requires the documentation of the human rights violations committed during the Marcos regime:
Section 21. Documentation of Human Rights Violations Committed by the Marcos Regime. - In the implementation of this Act and without prejudice to any other documentary or other evidence that may be required for the award of any reparation, any HRVV seeking reparation shall execute a detailed sworn statement narrating the circumstances of the pertinent human rights violation/s committed.[157]Further, memorialization is required under the law:
Section 26. Roll of Victims. - Persons who are HRVVs, regardless of whether they opt to seek reparation or not, shall be given recognition by enshrining their names in a Roll of Human Rights Victims to be prepared by the Board.The Human Rights Violations Victims' Memorial Commission is given the task of making such memory permanent. It is tasked to ensure that the atrocities that happened during the Marcos regime are included in the educational curricula of schools:
A Memorial/Museum/Library shall be established in honor and in memory of the victims of human rights violations whose names shall be inscribed in the Roll. A compendium of their sacrifices shall be prepared and may be readily viewed and accessed in the internet. The Memorial/Museum/Library/Compendium shall have an appropriation of at least Five hundred million pesos (P500,000,000.00) from the accrued interest of Ten billion pesos (P10,000,000,000.00) fund.
The Roll may also be displayed in government agencies as may be designated by the HRVV Memorial Commission as created hereunder.
Section 27. Human Rights Violations Victims' Memorial Commission. - There is hereby created a Commission to be known as the Human Rights Violations Victims' Memorial Commission, hereinafter referred to as the Commission, primarily for the establishment, restoration, preservation and conservation of the Memorial / Museum / Library / Compendium in honor of the HRVVs during the Marcos regime.The concept of an effective remedy can be read from the law.
. . . .
The Commission shall be attached to the CHR solely for budgetary and administrative purposes. The operating budget of the Commission shall be appropriated from the General Appropriations Act.
The Commission shall also coordinate and collaborate with the DepEd and the CHED to ensure that the teaching of Martial Law atrocities, the lives and sacrifices of HRVVs in our history are included in the basic, secondary and tertiary education curricula.
The requirements of effective remedies beyond monetary compensation are also supported by jurisprudence. In Department of Environment and Natural Resources v. United Planners Consultants, Inc.:[158]
[E]very statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege. In Atienza v. Villarosa, the doctrine was explained, thus:Persuasive, as it dovetails with the requirements of our Constitution and our statutes, are international laws and treaties providing for the right to a remedy for victims of international human rights law. This has been recognized in Article 8[160] of the Universal Declaration of Human Rights; Article 2[161] of the International Covenant on Civil and Political Rights; Article 6[162] of the International Convention on the Elimination of All Forms of Racial Discrimination; Article 14[163] of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and Article 39[164] of the Convention on the Rights of the Child. The right to a remedy is also an obligation in Article 3[165] of the Hague Convention Respecting the Laws and Customs of War on Land of 18 October 1907 (Convention IV); Article 91[166] of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977; and Article 68[167] and Article 75[168] of the Rome Statute of the International Criminal Court. Additionally, the Rome Statute of the International Criminal Court requires that the "principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation"[169] be established by state parties.No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication. The doctrine states that what is implied in a statute is as much a part thereof as that which is expressed. Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis. And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege. This is so because the greater includes the lesser, expressed in the maxim, in eo plus sit, simper inest et minus.[159]
Except for the Hague Convention of 1907, the Philippines has ratified all of these international conventions.[170] The contents of the Hague Convention of 1907 already form part of customary international law embodying much of the foundation of international humanitarian law. All the obligations in these treaties are already part of our laws.
We take a closer look at the International Convention on Civil and
Political Rights (ICCPR). Part II, Article 2, Section 3 provides:
PART IIThe United Nations General Assembly later adopted Resolution No. 60/147, which embodied the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles).[171] The Basic Principles was adopted to affirm and expound on the right of victims to a remedy as provided for in the ICCPR and other international laws and treaties. It is persuasive in the ICCPR's interpretation and contributes to achieving the full guarantee for respect of human rights required by the Constitution.
Article 2
. . . .
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted. (Emphasis supplied)
The Basic Principles does not entail new international obligations. The document only identifies "mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary through different as to their norms."[172]
Under the Basic Principles, the dignity of victims must be respected, and their well-being ensured. The State must take measures to safeguard that its laws protect the victims from re-traumatization:
VI. Treatment of victimsThe Basic Principles further elucidates the reparation to which the victims are entitled. It provides that the reparation must be proportional to the harm suffered. The general concept of reparation and effective remedies is found in Principles 15 and 18 of the Basic Principles:
10. Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation.
The victims' right to a remedy under the Basic Principles includes adequate, effective, and prompt reparation for harm suffered:
VII. Victims' right to remedies
11. Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to the following as provided for under international law:
15. Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparations should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.Full and effective reparation includes Restitution, Compensation, Rehabilitation, Satisfaction, and Guarantees of Non-repetition. These are provided for under Principles 19 to 23:
. . . .
18. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
19. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, and return to one's place of residence, restoration of employment and return of property.The Basic Principles requires separate obligations that are complete in themselves, and all these components are necessary for achieving an "effective remedy"[173] against human rights violations.
20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law such as:21. Rehabilitation should include medical and psychological care as well as legal and social services.
22. Satisfaction should include, where applicable, any or all of the following:23. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
Thus, Compensation for violations committed is not enough without the victim's satisfaction. Satisfying and compensating the victim is not enough unless there is a guarantee against non-repetition. This requires a legal order that can address these violations, as well as a cultural and educational system that allows remembrance of its occurrences.[174] It also requires a state that does what it can to guarantee non-repetition of these offenses.
These are essential to "guarantee full respect for human rights."[175] Article 2, Section 11 of the Constitution provides that "[t]he State values the dignity of every human person. It guarantees full respect of human rights."[176]
This provision is not a mere guide or suggestion. It requires the positive act of the State to guarantee full respect of human rights. Moreover, the State, with all its branches and instrumentalities including this Court, must provide this guarantee. When this state policy is invoked, the State cannot shy away from recognizing it as a source of right that may be affected by government actions.
The reparation due to the victims should not be solely monetary. In addition to the compensation provided under Republic Act No. 10368, the State must restitute, rehabilitate, satisfy, and guarantee non-repetition to victims.
Pertinent to issues raised by the victims of the Marcos regime is the reparation in the form of Satisfaction and Guarantee of Non-Repetition. The Basic Principles is clear that Satisfaction must include a "public apology, including acknowledgement of the facts and acceptance of responsibility," "judicial and administrative sanctions against persons liable for the violations," and an "inclusion of an accurate account of the violations that occurred ... in educational material at all levels."
The Guarantee of Non-Repetition requires the State to "provide, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society," and "review and reform laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law."
The transfer of the remains of Ferdinand E. Marcos negates all these aspects of Satisfaction and Guarantee of Non-Repetition. There has been no sufficient public apology, full acknowledgement of facts, or any clear acceptance of responsibility on the part of Ferdinand E. Marcos or his Heirs. Neither was Ferdinand E. Marcos sanctioned specifically for human rights violations. Now that he is dead, the victims can no longer avail themselves of this recourse. To add insult to this injury, the President decided to acknowledge the heroic acts and other favorable aspects of Ferdinand E. Marcos, the person primarily responsible for these human rights violations. This affects the accuracy of the accounts of the violations committed on the victims. It reneges on the State's obligation to provide human rights education and humanitarian law education to the Filipino People. It contributes to allowing violations of international human rights law and encourages impunity. If the State chooses to revere the person responsible for human rights violations, the perception of its People and the rest of the world on the gravity and weight of the violations is necessarily compromised.
Allowing Ferdinand E. Marcos' burial under the pretense of the President's policy of promotion of national healing and forgiveness lowers the victims' dignity and takes away from them their right to heal in their own time. Allowing the Marcos burial on the premise of national healing and forgiveness is a compulsion from the State for the victims and the Filipino People to forgive their transgressor without requiring anything to be done by the transgressor or his successors, and without even allowing the victims to be provided first the reparations granted to them by law.
Despite the conclusive presumption accorded to some of these human rights victims, they have still been unable to claim the reparations explicitly granted to them by Republic Act No. 10368. Meanwhile, Ferdinand E. Marcos is awarded forgiveness and accorded state funds and public property to honor him as a Former President and a military man. This is not the effective remedy contemplated by law.
To allow the Marcos burial is diametrically opposed to Republic Act No. 10368. The stated policies are clear. These must be applied, and applied in its entirety-in accordance with its spirit and intent:
Thus, the literal interpretation of a statute may render it meaningless; and lead to absurdity, injustice, or contradiction. When this happens, and following the rule that the intent or the spirit of the law is the law itself, resort should be had to the principle that the spirit of the law controls its letter. Not to the letter that killeth, but to the spirit that vivifieth. Hindi ang letra na pumapatay, kung hindi ang diwa na nagbibigay buhay.[177] (Emphasis supplied)Likewise, a law is always superior to an administrative regulation, including those issued by the Armed Forces of the Philippines.[178] The latter cannot frevail over the former. In Vide Conte et al. v. Commission on Audit:[179]
It is doctrinal that in case of conflict between a statute and an administrative order, the former must prevail. A rule or regulation must conform to and be consistent with the provisions of the enabling statute in order for such rule or regulation to be valid. The rule-making power of a public administrative body is a delegated legislative power, which it may not use either to abridge the authority given it by the Congress or the Constitution or to enlarge its power beyond the scope intended. Constitutional and statutory provisions control with respect to what rules and regulations may be promulgated by such a body, as well as with respect to what fields are subject to regulation by it. It may not make rules and regulations which are inconsistent with the provisions of the Constitution or a statute, particularly the statute it is administering or which created it, or which are in derogation of, or defeat, the purpose of a statute.[180] (Emphasis supplied)This is especially true when the regulation does not stem from any enabling statute. Administrative regulations stem from the President's administrative power. In Ople v. Tocrres:[181]
Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively.[182]Because regulations are issued under the administrative powers of the President, its function is mostly to properly apply policies and enforce orders. Thus, regulations must be in harmony with the law. The AFP Regulations cannot be given priority by the President over Republic Act No. 10368.
Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations. (Emphasis supplied, citations omitted)
Nonetheless, assuming the AFP Regulations are valid, Republic Act No. 10368 has amended them such that they disallow any governmental act that conflicts with the victims' right to recognition and reparation. Section 31 of Republic Act No. 10368 provides:
Section 31. Repealing Clause. - All laws, decrees, executive orders, rules and regulations or parts thereof inconsistent with any of the provisions of this Act, including Section 63(b) of Republic Act No. 6657, as amended, otherwise known as the Comprehensive Agrarian Reform Law of 1988 and Section 40(a) of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, are hereby repealed, amended or modified accordingly.Since Republic Act No. 10368 should be read into or deemed to have amended the AFP Regulations, the transfer of the remains of Ferdinand E. Marcos is illegal.
Assuming the AFP Regulations remain the governing regulation over the Libingan ng mga Bayani, Ferdinand E. Marcos is still disqualified from being interred there. It can be inferred from the list of disqualifications that those who have committed serious crimes, something inherently immoral, despite having served the country in some way, are not "bayani" deserving to be interred at the Libingan ng mga Bayani.
Associate Justice Diosdado M. Peralta contends that Ferdinand E. Marcos is not disqualified from being interred at the Libingan ng mga Bayani under the AFP Regulations as he was neither convicted of an offense involving moral turpitude nor dishonorably discharged from active military service. This argument is hinged on the constitutional provision that a person shall not be held to answer for a criminal offense without due process of law and the presumption of innocence in all criminal prosecutions.[183]
It is true that the presumption of innocence applies in criminal prosecutions. Nonetheless, relying on the presumption of innocence to allow Ferdinand E. Marcos to escape the consequence of his crimes is flimsy.
First, this is not a criminal prosecution, and the rights of the accused do not apply. Second, Ferdinand E. Marcos' innocence is not in issue here. Even public respondents do not insult petitioners by arguing that Ferdinand E. Marcos is not complicit and responsible for the atrocities committed during his dictatorship. Third, an invocation of the presumption of Ferdinand E. Marcos' innocence is a rejection of the legislative findings of Republic Act No. 10368 and of this Court's own pronouncements in numerous cases.
The issue at hand is whether Ferdinand E. Marcos is someone who should be honored and emulated.
There is no presumption of innocence when it comes to determining one's fitness to be buried at the Libingan ng mga Bayani. Moreover, as Ferdinand E. Marcos is a public officer, the standards are high. Article XI of the Constitution provides the basic rules that must be followed by all public officers:
Not only is Ferdinand E. Marcos responsible for gross human rights violations and, thus, crimes of moral turpitude; he also failed to meet any of the standards imposed on a public officer under the Constitution. On this alone, he is not worthy of being emulated and does not belong at the Libingan ng mga Bayani.ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.
The Solicitor General claims that the provision in the Administrative Code of 1987 is the government's legal basis for the instructions to bury the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani:
Section 14. Power to Reserve Lands of the Public and Private Domain of the Government. - (1) The President shall have the power to reserve for settlement or public use, and for specific public purposes, any of the lands of the public domain, the use of which is not otherwise directed by law. The reserved land shall thereafter remain subject to the specific public purpose indicated until otherwise provided by law or proclamation. (Emphasis supplied)This provision requires two (2) substantive requirements. First, the segregation of land is "for public use and a specific public purpose." Second, the use of public land "is not otherwise directed by law."
The Solicitor General cites Manosca v. Court of Appeals[184] and City of Manila v. Chinese Community of Manila.[185] These cases provide little assistance to their case.
The Solicitor General claims that "recognizing a person's contribution to Philippine history and culture is consistent with the requirement of public use."[186] Yet, he acknowledges on behalf of government that Martial Law was part of the "dark pages" of our history. Thus, in his Consolidated Comment:
No amount of heartfelt eulogy, gun salutes, holy anointment, and elaborate procession and rituals can transmogrify the dark pages of history during Martial Law. As it is written now, Philippine history is on the side of Petitioners and everybody who fought and died for democracy.[187]Ferdinand E. Marcos was ousted from the highest office by the direct sovereign act of the People. His regime was marked by brutality and by the "organized pillaging" that came to pass.
In Marcos v. Manglapus,[188] which was decided in 1989, this Court acknowledged that Ferdinand E. Marcos was "a dictator"[189] who was "forced out of office and into exile after causing twenty years of political, economic and social havoc in the country."[190] This Court recognized the immediate effects of the Marcos regime:
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, we cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit of judicial notice.[191]In 2006, in Yuchengco v. Sandiganbayan:[192]
In PCGG v. Peña, this Court, describing the rule of Marcos as a "well-entrenched plundering regime of twenty years" noted the "magnitude of the past regime's 'organized pillage' and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market." The evidence presented in this case reveals one more instance of this grand scheme. This Court-guardian of the high standards and noble traditions of the legal profession-has thus before it an opportunity to undo, even if only to a certain extent, the damage that has been done.[193] (Citations omitted)In the 2001 case of Estrada v. Desierto,[194] this Court characterized once again the 1986 EDSA Revolution and, in so doing, described the rejection of the Marcos regime:
[T]he government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino Reople in defiance of the provisions of the 1973 Constitution, as amended.[195]The other possible purpose stated by the Solicitor General is to achieve the ambiguous goal of "national healing."[196] During the Oral Arguments, the Solicitor General argues that the aim of the burial is to achieve "changing the national psyche and beginning the painful healing of this country." In doing so, however, respondents rewrite our history to erase the remembrance of Ferdinand E. Marcos as a symbol of the atrocities committed to many of our People. It is an attempt to forget that he was a human rights violator, a dictator, and a plunderer, in the name of "national healing" and at the cost of repetition of the same acts in this or future generations.
Considering Ferdinand E. Marcos' disreputable role in Philippine history, there can be no recognition that serves the public interest for him. There is no legitimate public purpose for setting aside public land at the Libingan ng mga Bayani-definitely a national shrine-for him.
Manosca states the standard that governmental action to favor an individual or his or her memory will only be allowed if it is to recognize the person's laudable and distinctive contribution to Philippine history or culture. Ferdinand E. Marcos' leadership has been discredited both by statutory provisions and jurisprudence. He has contribution that stands out and that should be validly recognized.
It is disturbing that what appears to be the underlying cause for the interment of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani is the fulfillment of a campaign promise by President Duterte to the Heirs of Marcos. This dovetails with petitioners' manifestation that campaign contributions were made by the Heirs of Marcos. Promised acts of a political candidate to a family to further personal political ambition at the cost of the public's welfare cannot be considered as the public purpose required by the Administrative Code of 1987.
The exercise of the President's powers may not be justified by invoking the executive's residual powers.
An exercise of the President's residual powers is appropriate only if there is no law delegating the power to another body, and if there is an exigency that should be addressed immediately or that threatens the existence of government. These involve contingencies that cannot await consideration by the appropriate branches of government.
In Gonzales v. Marcos,[197] this Court recognized the residual power of the President to administer donations specifically in the absence of legislative guidelines. This Court stressed that it was necessary that the executive act promptly, as time was of the essence:
There is impressive juridical support for the stand taken by the lower court. Justice Malcolm in Government of the Philippine Islands v. Springer took pains to emphasize: "Just as surely as the duty of caring for governmental property is neither judicial nor legislative in character is it as surely executive." It would be an unduly narrow or restrictive view of such a principle if the public funds that accrued by way of donation from the United States and financial contributions for the Cultural Center project could not be legally considered as "governmental property." They may be acquired under the concept of dominium, the state as a persona in law not being deprived of such an attribute, thereafter to be administered by virtue of its prerogative of imperium. What is a more appropriate agency for assuring that they be not wasted or frittered away than the Executive, the department precisely entrusted with management functions? It would thus appear that for the President to refrain from taking positive steps and await the action of the then Congress could be tantamount to dereliction of duty. He had to act; time was of the essence. Delay was far from conducive to public interest. It was as simple as that. Certainly then, it could be only under the most strained construction of executive power to conclude that in taking the step he took, he transgressed on terrain constitutionally reserved for Congress.[198] (Emphasis supplied, citations omitted)In Marcos v. Manglapus,[199] the government was unstable and was threatened by various forces, such as elements within the military, who were among the rabid followers of Ferdinand E. Marcos. Thus, the residual power of the President to bar the return of Ferdinand E. Marcos' body was recognized by this Court as borne by the duty to preserve and defend the Constitution and ensure the faithful execution of laws:
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. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed.[200]Further, this Court recognized the President's residual powers for the purpose of, and necessary for, maintaining peace:
More particularly, this case calls for the exercise of the President's powers as protector of the peace. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquillity in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security.[201]In Sanlakas v. Reyes,[202] where several hundred members of the Armed Forces of the Philippines stormed the Oakwood Premiere apartments in Makati City and demanded Former President Gloria Macapagal-Arroyo's resignation, the use of the President's residual power to declare a state of rebellion was allowed. This Court held that although the declaration is a superfluity, her power to declare a state of rebellion arises from her powers as Chief Executive and Commander-in-Chief.[203] This Court examined the history of such powers:
The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office. Thus, the plenitude of the powers of the presidency equips the occupant with the means to address exigencies or threats which undermine the very existence of government or the integrity of the State.[204]In these cases, the residual powers recognized by this Court were directly related to the President's duty to attend to a present contingency or an urgent need to act in order to preserve domestic tranquility. In all cases of the exercise of residual power, there must be a clear lack of legislative policy to guide executive power.
This is not the situation in these consolidated cases. As discussed, there are laws violated. At the very least, there was no urgency. There was no disturbance to the public peace.
I disagree with Associate Justice Jose P. Perez's view that the issue relating to the transfer of the remains of Ferdinand E. Marcos was already resolved through the political process of the election of the President of the Philippines.[205] In his view, the issue had already been presented to the public during the campaign season, and President Duterte was elected despite petitioners' opposition. Thus, he concludes that the sovereign has subscribed to the policy promised by President Duterte.[206] In other words, he is of the opinion that the People decided that Ferdinand E. Marcos should be buried at the Libingan ng mga Bayani because President Duterte did not lose.[207]
Associate Justice Perez suggests that the President-elect's acts to effectuate his campaign promises may no longer be questioned by any party, regardless of whether it is contrary to the Constitution, laws, and public policy, regardless of whether he obtained the votes of the majority, and regardless of whether he acted with grave abuse of discretion amounting to lack or excess of jurisdiction.[208] He takes the position that any act of the President to fulfill his electoral promise will be deemed legitimate because the People have supposedly chosen him as their President.[209]
I cannot agree to this dangerous proposition. We are a constitutional democracy: a State under the rule of law.
The number of votes obtained by the President does not determine whether the Constitution or the laws will or will not apply. The Constitution is not suspended on account of the election of a President who promised a particular policy. We elect a President whom we expect to implement political platforms given the existing state of the law. The process of election is not a means to create new law. The process of creating law is provided in Article VIII of the Constitution. Neither should the elections for President be the process for amending the Constitution. The process for amending the Constitution is provided in Article XVII of the same Constitution.
Furthermore, the President is tasked to execute the law-not create it. It is the legislative branch that determines state policies through its power to enact, amend, and repeal laws. Thus, it is dangerous to assume that the sovereign voted for the President to "ratify" policies he promised during his campaign.
In other words, under our constitutional order, we elect a President subject to the Constitution and the current state of the law. We do not, through the process of elections, anoint a king.
Moreover, the theory that a campaign promise becomes policy is an abdication of the judiciary's duty to uphold the Constitution and its laws.
Article VIII, Section 1 of the Constitution provides:
This provision defines this Court's duty to ensure that all branches or instrumentalities of Government act only within the scope of their powers as defined by the Constitution and by law. Nothing in the provision allows campaign promises to trump the rule of law.ARTICLE VIII
Judicial Department
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess jurisdiction on the part of any branch or instrumentality of the Government.
Associate Justice Perez's Concurring Opinion is founded upon the premise that the transfer of the remains of Ferdinand E. Marcos is a question of policy to be determined by the People, outside the scope of this Court's power of judicial review. He claims that the matter is a political question. Unfortunately, the allegations of an infringement upon a fundamental individual or collective right and grave abuse of discretion on the part of another branch of government, which were properly pleaded by petitioners, were not addressed.
Recently, in Diocese of Bacolod v. Commission on Elections:[210]
The political question doctrine is used as a defense when the petition asks this court to nullify certain acts that are exclusively within the domain of their respective competencies, as provided by the Constitution or the law. In such situation, presumptively, this court should act with deference. It will decline to void an act unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review when the act of a constitutional organ infringes upon a fundamental individual or collective right. . . .
Marcos v. Manglapus limited the use of the political question doctrine:When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide.How this court has chosen to address the political question doctrine has undergone an evolution since the time that it had been first invoked in Marcos vs. Manglapus. Increasingly, this court has taken the historical and social context of the case and the relevance of pronouncements of carefully and narrowly tailored constitutional doctrines....
Many constitutional cases arise from political crises. The actors in such crises may use the resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now mandates a duty for it to exercise its power of judicial review expanding on principles that may avert catastrophe or resolve social conflict.
This court's understanding of the political question has not been static or unbending. In Llamas v. Executive Secretary Oscar Orbos, this court held:While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity of such discretionary powers or whether said powers are within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such review does not constitute a modification or correction of the act of the President, nor does it constitute interference with the functions of the President.The concept of judicial power in relation to the concept of the political question was discussed most extensively in Francisco v. HRET. In this case, the House of Representatives argued that the question of the validity of the second impeachment complaint that was filed against former Chief Justice Hilario Davide was a political question beyond the ambit of this court....
As stated in Francisco, a political question will not be considered justiciable if there are no constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the existence of constitutionally imposed limits justifies subjectinthe official actions of the body to the scrutiny and review of this court.[211] (Emphasis supplied, citations omitted)
Similarly, I cannot agree with the conclusions of Associate Justice Arturo D. Brion with respect to the interpretation of Article VIII, Section 1 of the Constitution.
Associate Justice Brion opines that this Court's expanded jurisdiction under the Constitution does not empower this Court to review allegations involving violations and misapplication of statutes.[212] He claims that the remedies available to petitioners are those found in the Rules of Court, which address errors of law.[213] He claims that this Court can only check whether there is grave abuse of discretion on the part of another branch or instrumentality of government when there is a violatioh of the Constitution.[214] Necessarily, petitioners must have shown that there is prima facie evidence that the President violated the Constitution in allowing the Marcos burial.[215] He insists that the Court's authority, under its expanded jurisdiction, is limited to determining the constitutionality of a governmental act. Grave abuse of discretion from violations of statutes cannot be made a matter of judicial review under this Court's expanded jurisdiction.
Associate Justice Brion's interpretation proceeds from the theory that there is a hierarchy of breach of the normative legal order and that only a breach of the Constitution will be considered grave abuse of discretion.
In my view, this reading is not supported by the text of tht provision or by its history.
Article VIII, Section 1 of the Constitution is clear. This Court is possessed of the duty to exercise its judicial power to determine whether there is grave abuse of discretion amounting to lack or expess of jurisdiction by any branch or instrumentality of government. This provision does not state that this Court may exercise its power of judicial review exclusively in cases of violations of the Constitution.
An illegal act is an illegal act, no matter whether it is illegal as a result of the violation of a constitutional provision or a violation of valid and existing law. It is the exercise of discretion that must be subjected to review, and it is the discretion of any branch or instrumentality of government. Nothing in the Constitution can lead to the conclusion that a violation of a statute by the President is not a grave abuse of discretion.
This jurisdiction to determine whether there is grave abuse of discretion amounting to lack or excess jurisdiction of any t branch of government is a new provision under the 1987 Constitution. It was added as a safeguard from abuses of other branches of government, which were justified under the doctrine of political question. In Francisco, Jr. v. House of Representatives:[216]
In our own jurisdiction, as early as 1902, dec des befote its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts. And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza, the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:It is not about violations that may or may not be constitutional or statutory in character. It is about discretion gravely abused.Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "... judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them." To him, "[j]udicial review is the chief, indeed the only, medium of participation - or instrument of intervention - of the judiciary in that balancing operation."
When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.
. . . .
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of government," the afore-quoted Section 1, Article, VIII of the Constitution egraves, for the first time into its history, into block letter law the so-called "expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commis ioner Roberto Concepcion:
. . . .
The first section starts with a sentence copied from former Constitution. It says:The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.The next provision is new in our constitutional law. I will read it first and explain.
I suppose nobody can question it.Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are regally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed becaue the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime....
. . . .
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.[217] (Emphasis supplied)
Regretfully, Associate Justice Brion's position ignores the legal issues presented by petitioners, which involve a question of the.proper exercise of constitutional powers: whether the President may use his executive power to order the transfer of the remains of Ferdinand E. Marcos' to the Libingan ng mga Bayani burial despite the rights invoked by petitioners and other particular provisions in the Constitution, statutes, and public policy.
Definitely, there is an actual case or controversy ripe for judicial review. Recalling a position in Spouses Imbong v. Ochoa, Jr.:[218]
The requirement for a "case" or "controversy" locates the judiciary in the scheme of our constitutional order. It defmes our role and distinguishes this institution from the other constitutional organs.There is an actual case or controversy in this case as it involves a conflict of legal rights arising from actual facts, which have been properly established through evidence or judicial notice, and which provide the natural limitations upon judicial interpretation of the statute.
. . . .
An actual case or controversy is "one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice." To be justiciable, the issues presented must be "'definite and concrete, touching the legal relations of parties having adverse legal interest;' a real and substantial controversy admitting of specific relief." The term justiciability refers to the dual limitation of only considering in an adversarial context the questions presented before courts, and in the process, the courts' duty to respect its co-equal branches of government's powers and prerogatives under the doctrine of separation of powers.
There is a case or controversy when there is a real conflict of rights or duties arising from actual facts. These facts, properly established in court through evidence or judicial notice, provide the natural limitations uponjudicial interpretation of the statute. When it is claimed that a statute is inconsistent with a provision of the Constitution, the meaning of a constitutional provision will be narrowly drawn.
Without the necessary findings of facts, this court is left to speculate leaving justices to grapple within the limitations of their own life experiences. This provides too much leeway for the imposition of political standpoints or personal predilections of the majority of this court. This is not what the Constitution contemplates. Rigor in determining whether coptroversies brought before us are justiciable avoids the counter majoritarian difficulties attributed to the judiciary.
Without the existence and proper proof of actual facts, any review of the statute or its implementing rules will be theoretical and abstract. Courts are not structured to predict facts, acts or events that will still happen. Unlike the legislature, we do not determine policy. We read law only when we are convinced that there is enough proof of the real acts or events that raise conflicts of legal rights or duties. Unlike the executive, our participation comes in after the law has been implemented. Verily, we also do not determine how laws are to be implemented.[219]
Petitioners invoke a violation of their existing legal rights, among which is their right as victims of human rights violations committed during the Marcos regime. They invoke an act from the executive branch, which allegedly violates their rights and was allegedly committed with grave abuse of discretion amounting to lack or excess of jurisdiction. On the other hand, respondents insist on the President's right to exercise his executive discretion on who may or may not be buried at the Libingan ng mga Bayani. Thus, a conflict of rights must be determined by this Court in accordance with the Constitution and statutes. This Court's ruling on the matter will not be merely advisory; on the contrary, it shall be binding among the parties and shall be implemented with force and effect. Thus, there is an actual case or controversy.
Associate Justice Peralta contends that petitioners have no locus standi because they failed to show any direct suffering or personal injury that they have incurred or will incur as a result of Ferdinand E. Marcos' burial.[220]
I cannot agree.
The requirement of locus standi requires that the party raising the issue must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result."[221]
In Public Interest Center, Inc. v. Roxas:[222]
In Integrated Bar of the Philippines v. Zamora, this Court defined legal standing as follows:In public suits, the plaintiff, representing the general public, asserts a "public right" in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from any other person, and could be suing as a "stranger," or as a "citizen" or "taxpayer." To invest him with locus standi, the plaintiff has to adequately show that he is entitled to judicial protection and has a sufficient interest in the vindication of the asserted public right.[223] (Citations omitted)
Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."
Several petitioners allege that they are human rights victims during the Marcos regime who had filed claims under Republic Act No. 10368. In their Petitions, they claim that respondents' questioned acts affect their right to reparation and recognition under Republic Act No. 10368 and international laws. As petitioners have an interest against Ferdinand E. Marcos and have claims against the State in connection with the violation of their human rights, petitioners are vested with material interest in the President's act in allowing the Marcos burial at the Libingan ng mga Bayani.
In any case, the rule on standing has been relaxed "when the matter is of transcendental importance, of overreaching significance to society, or of paramount public interest."[224] In In Re Supreme Court Judicial Independence v. Judiciary Development Fund:[225]
Transcendental importance is not defmed in our jurisprudence, thus, in Francisco v. House of Representatives:Given that public property and funds are involved and there are allegations of disregard of constitutional and statutory limitations by the executive department, this Court may properly act on the Petitions.
There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.[226] (Citations omitted)
The ponencia states that petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts,[227] which essentially espouse the principle that no direct resort to this Court is allowed when there are other plain, speedy, and adequate remedies.
However, there are exceptions to this rule, as restated in Diocese of Bacolod:
(a) | When there are genuine issues of constitutionality that must be addressed at the most immediate time; |
(b) | When the issues involved are of transcendental importance. In these cases, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts from the paralysis of procedural niceties when clearly faced with the need for substantial protection; |
(c) | In cases of first impression, and no jurisprudence yet exists that will guide the lower courts on this matter; |
(d) | When the constitutional issues raised are better decided by this court; |
(e) | When the filed petition reviews the act of a constitutional organ; |
(f) | When there is a time element presented in this case cannot be ignored; |
(g) | When there is no other plain, speedy, and adequate remedy in the ordinary course of law that could free them from the injurious effects of respondents' acts in violation of their rights; and |
(h) | When the petition includes questions that are "dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was considered as clearly an inappropriate remedy."[228] |
These exceptions are present in these consolidated cases. First, these cases involve reviewing the act of another constitutional organ, that is, the President's exercise of discretion in allowing Ferdinand E. Marcos' burial at the Libingan ng mga Bayani. Second, these Petitions raise constitutional questions that would be better decided by this Court, as well as issues relating to public policy that may be beyond the competence of the lower courts. These cases are likewise of first impression, and no jurisprudence yet exists on this matter. Thus, the Petitions cannot be dismissed by invoking the doctrine of hierarchy of courts and exhaustion of administrative remedies.
Grave abuse of discretion is committed when the President violates his or her own oath of office. Thus, in Article VII, Section 5 of the 1987 Constitution:
The President's duty to faithfully execute the laws of the land Is enshrined in the Constitution. Thus, in Article VII, Section 17:ARTICLE VII . . . .
Executive Department
SECTION 5....
"I, do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President . . . of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the nation. So help me God."
SECTION 17. The President shall have control of all executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.In Almario v. Executive Secretary,[229] we have clarified that the faithful execution clause is not a separate grant of power but an obligation imposed on the President. The President is, therefore, not above the law or above judicial interpretation. He is duty-bound to obey and execute them. Thus, administrative or executive acts, orders and regulations shall be valid ony when they are not contrary to the laws or the Constitution.[230]
In Almario, the President's proclamation of several national artists was nullified because several rules, guidelines, and processes of the National Commission on Culture and the Arts and the Cultural Center of the Philippines were disregarded. This Court declared that the actions of the President, contrary to the spirit of these rules, constituted grave abuse of discretion:
Thus, in the matter of the conferment of the Order of National Artists, the President may or may not adopt the recommendation or advice of the NCCA and the CCP Boards. In other words, the advice of the NCCA and the CCP is subject to the President's discretion.
Nevertheless, the President's discretion on the matter is not totally unfettered, nor the role of the NCCA and the CCP Boards meaningless.
Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reigned in to keep it from straying. In its classic formulation, 'discretion is not unconfmed and vagrant' but 'canalized within banks that keep it from overflowing.'
The President's power must be exercised in accordance with existing laws. Section 17, Article VII of the Constitution prescribes faithful execution of the laws by the President:Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.The President's discretion in the conferment of the Order of National Artists should be exercised in accordance with the duty to faithfully execute the relevant laws. The faithful execution clause is best construed as an obligation imposed on the President, not a separate grant of power. It simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws but is obliged to obey and execute them. This is precisely why the law provides that "[a]dministrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution."[231]
The ponencia's characterization of Ferdinand E. Marcos as "just a human who erred like us"[232] trivializes the magnitude of the suffering that he inflicted on scores of Filipinos.
Ferdinand E. Marcos' "errors" were not errors that a President is entitled to commit. They were exceptional in both severity and scale. They were inhuman acts.
Ferdinand E. Marcos provided the atmosphere of impunity that allowed the molestations, rape, torture, death, and disappearance of thousands of Filipinos. Ferdinand E. Marcos was the President who, rather than preserve and protect the public trust, caused untold anguish upon thousands of Filipino families. Their trauma, after all these years, still exists.
Ferdinand E. Marcos plundered the nation's coffers. The systematic plunder was so exceptional and outrageous that even after being ousted, he and his family brought more than P27,000,000.00 in freshly printed notes, 23 wooden crates, 12 suitcases and bags, and various boxes of jewelry, gold bricks, and enough clothes to fill 57 racks[233] with them to their exile in Hawaii.
These were not accidents that humans, like us, commit. These were deliberate and conscious acts by one who abused his power. To suggest that Ferdinand E. Marcos was "just a human who erred like us" is an affront to those who suffered under the Marcos regime.
To suggest that these were mere errors is an attempt to erase Ferdinand E. Marcos' accountability for the atrocities during Martial Law. It is an attempt to usher in and guarantee impunity for them as well as for those who will commit the same in the future.
It is within the power of this Court to prevent impunity for gross violations of human rights, systematic plunder by those whom we elect to public office, and abuse of power at the expense of our toiling masses. We should do justice rather than characterize these acts as the "mere human error" of one whom We have characterized as a dictator and an authoritarian.
Interpreting the law is not mere power. It is not simply our personal privilege.
Judicial review is an awesome social responsibility that should always be discharged with the desire to to learn from history and to do justice. Social justice will not come as a gift. It is a product of the constant, conscious, and determined effort to understand our society and do what is right. Justice will not come when we insist that we should decide behind a veil of ignorance. Precisely, our expanded jurisdiction in the present Constitution contains our People's command for this Court not to forget that never again should this Court be blind to reality.
The reality is that the retelling of the story of Martial Law is agonizing to many who went through the ordeal. Reliving it for eternity, with the transfer of the remains of he who is responsible for the ordeal to the sacred grounds of the Libingan ng mga Bayani, will permanently cause untold anguish to the victims.
The mother who stood by her principles but was tortured, molested, or raped during Martial Law will now have to explain to her daughter why he who allowed that indignity to happen is now at the Libingan ng mga Bayani.
The family of the father or the mother or the son or the daughter or the nephew or niece or cousin who disappeared will have extreme difficulty accepting that the remains of Ferdinand E. Marcos-the President who was Commander-in-Chief and who had control over all those who wielded state coercion during Martial Law-is buried in a place that implies that he is a hero. They will have to explain to themselves, with the pain and anguish that they still suffer, why the most powerful man who was unable to help them find their kin is granted honors by this State.
Those who will celebrate this country's pride every year with the commemoration of People Power or the EDSA Revolution will also live with the contradiction that the remains of the President they ousted for his abuses is now interred at the Libingan ng mga Bayani.
National healing cannot happen without the victims' participation and consent.
The decision of the majority to deny the Petitions robs this generation and future generations of the ability to learn from our past mistakes. It will tell them that there are rewards for the abuse of power and that there is impunity for human rights violations. The decision of the majority implies that, learning from the past, our People should be silent and cower in fear of an oppressor. After all, as time passes, the authoritarian and the dictator will be rewarded.
Sooner rather than later, we will experience the same fear of a strongman who will dictate his view on the solutions of his favored social ills. Women will again be disrespected, molested, and then raped. People will die needlessly-perhaps summarily killed by the same law enforcers who are supposed to protect them and guarantee the rule of law. Perhaps, there will be people who will be tortured after they are shamed and stereotyped.
We forget the lessons of the past when we allow abuse to hold sway over the lives of those who seem to be unrelated to us. Silence, in the face of abuse, is complicity.
The burial of Ferdinand E. Marcos at the Libingan ng mga Bayani is not an act of national healing. It cannot be an act of healing when petitioners, and all others who suffered, are not consulted and do not participate. Rather, it is an effort to forget our collective shame of having failed to act as a People as many suffered. It is to contribute to the impunity for human rights abuses and the plunder of our public trust.
The full guarantee of human rights is a fundamental primordial principle enshrined in the Constitution. It is not the antithesis of government.
To deny these Petitions is to participate in the effort to create myth at the expense of history.
Ferdinand E. Marcos' remains, by law, cannot be transferred to the Libingan ng mga Bayani. Ferdinand E. Marcos is not a "bayani."
Ferdinand E. Marcos is not a hero.
ACCORDINGLY, I vote to GRANT the consolidated Petitions.
[1] Almario v. Executive Secretary, 714 Phil. 127, 163 (2013) citing the dissent of J. Cardozo in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) [Per J. Leonardo-de Castro, En Banc].
[2] OSG Comment, Annex 5.
[3] OSG Comment, Annex 6.
[4] OSG Comment, Annex 7.
[5] OSG Memorandum, p. 20.
[6] Id.
[7] Petition (G.R. No. 225973), Petition (G.R. No. 226117) and Petition (G.R. No. 226120).
[8] Petition (G.R. No. 225973), Petition (G.R. No. 225984), Petition (G.R. No. 226097), Petition (G.R. No. 226116), Petition (G.R. No. 226117) and Petition (G.R. No. 226120).
[9] Petition (G.R. No. 226116).
[10] OSG Memorandum, p. 10.
[11] Memorandum (G.R. No. 226097), p. 8.
[12] Transferring the Remains of War Dead Interred at Bataan Memorial Cemetery, Bataan Province and at Other Places in the Philippines to the Republic Memorial Cemetery at Fort WM McKinley, Rizal Province (1954).
[13] Exec. Order No. 77 (1954), 4th whereas clause.
[14] Proc. No. 86 (1954).
[15] Proc. No. 208 (1967).
[16] Pres. Decree No. 105 (1973).
[17] OSG Comment, Annex 5.
[18] OSG Comment, Annex 6.
[19] OSG Comment, Annex 7.
[20] Memorandum (G.R. No. 226097), p. 10.
[21] Id. at 11.
[22] Id.
[23] Id. at 11-12.
[24] Id. at 12.
[25] Id. at 13.
[26] Id. at 13-14.
[27] Id. at 14.
[28] OSG Memorandum, p. 20.
[29] National Historical Commission of the Philippines, Why Ferdinand Marcos Should Not Be Buried at the Libingan ng mga Bayani, July 12, 2016 <https://drive.google.com/file/d/0B9c6mrxI4zoYS2I0UWFENEp6TkU/view> (visited November 7, 2016).
[30] Memorandum (G.R. No. 226097), p. 14.
[31] Id. at 15.
[32] Memorandum (G.R. No. 225973), p. 7; OSG Memorandum, p. 20.
[33] OSG Memorandum, p. 20.
[34] Memorandum (G.R. No. 225973), p. 8.
[35] Id. at 7.
[36] Id. at 8.
[37] Id.
[38] Id.
[39] Id.
[40] An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes and Patriots of the Country.
[41] Rep. Act No. 289, sec. 1.
[42] Rep. Act No. 289, sec. 1.
[43] Rep. Act No. 289, sec. 1.
[44] Rep. Act No. 289, sec. 2(a).
[45] OSG Memorandum, p. 10.
[46] Proc. No. 423 (1957).
[47] OSG Comment, Annex 7.
[48] Exec. Order No. 77 (1954).
[49] Proc. No. 86 (1954).
[50] TSN, Oral Arguments, September 7, 2016, p. 142.
[51] Id. at 57.
[52] Id. at 152.
[53] Ponencia, p. 19.
[54] Rep. Act No. 289, sec. 2.
[55] Rep. Act No. 289, sec. 2.
[56] TSN, Oral Arguments, September 7, 2016, p. 14.
[57] Palanca v. Court of Appeals, G.R. No. 106685, December 2, 1994, 238 SCRA 593, 600-601 [Per J. Quiason, En Banc].
[58] See United States v. Chan, 37 Phil. 78, 84 (1917) [Per J. Torres, En Banc].
[59] National Power Corporation v. Province of Lanao del Sur, 332 Phil. 303, 323 (1996) [Per J. Panganiban, En Banc].
[60] 588 Phil. 651 (2008) [Per J. Chico-Nazario, En Banc].
[61] Id. at 673-675, citing 25 R.C.L., pp. 810, 811.
[62] OSG Memorandum, p. 54.
[63] Id.
[64] Id. at 55.
[65] Id.
[66] Id.
[67] Id. at 54.
[68] Id.
[69] OSG Memorandum, p. 56.
[70] Id.
[71] Rep. Act No. 289, sec. 1.
[72] OSG Comment, Annex 7.
[73] Rep. Act No. 289, sec. 2(a).
[74] Rep. Act No. 289, sec. 2(c).
[75] Rep. Act No. 289, sec. 2(e).
[76] Marcos v. Manglapus, 258 Phil. 479 (1989) [Per J. Cortes, En Banc]; Galman v. Sandiganbayan, 228 Phil. 42 (1986) [Per J. Quisimbing, En Banc]; Fortun v. Macapagal-Arroyo, 684 Phil. 526 (2012) [Per J. Abad, En Banc]; People v. Pacificador, 406 Phil. 774 (2001) [Per J. de Leon, Jr., Second Division]; Buscayno v. Enrile, 190 Phil. 7 (1981) [Per C.J. Fernando, En Banc]; Republic v. Sandiganbayan, 453 Phil. 1059 (2013) [Per J. Puno, En Banc]; Republic v. Villarama, 344 Phil. 288 (1997) [Per J. Davide Jr., Third Division]; Salazar v. Achacoso, 262 Phil. 160 (1990) [Per J. Sarmiento, En Banc]; Biraogo v. Philippine Truth Commission, 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].
[77] J. Gutierrez, Jr., Dissenting Opinion in Marcos v. Manglapus, 258 Phil. 479, 513-526 (1989) [Per J. Cortes, En Banc]; J. Francisco, Concurring and Dissenting Opinion in Dans v. People, 349 Phil. 434, 477-513 (1998) [Per J. Romero, Third Division]; J. Puno, Concurring and Dissenting Opinion in Presidential Ad Hoc Fact-Finding Committee v. Desierto, 375 Phil. 697, 748-754 (1999) [Per C.J. Davide, Jr., En Banc]; J. Vitug, Dissenting Opinion in Ang Bagong Bayani v. Commission on Elections, 412 Phil. 308, 347-356 (2001) [Per J. Panganiban, En Banc]; J. Sarmiento, Dissenting Opinion in In re Umil v. Ramos, 279 Phil. 266, 332-344 (1991) [Per Curiam, En Banc]; J. Davide, Separate Opinion in People's Initiative for Reform, Modernization and Action v. Commission on Elections, G.R. No. 129754, September 23, 1997 [Unsigned Resolution, En Banc]; J. Puno, Separate Opinion in Republic v. Sandiganbayan, 454 Phil. 504, 551-630 (2003) [Per J. Carpio, En Banc]; J. Sarmiento, Dissenting Opinion in Baylosis v. Chavez, 279 Phil. 448, 470-483 (1991) [J. Narvasa, En Banc]; J. Teehankee, Concurring Opinion in Tan v. Commission on Elections, 226 Phil. 624, 648-651 (1986) [Per J. Alampay, En Banc].
[78] Marcos v. Manglapus, 258 Phil. 479 (1989) [Per J. Cortes, En Banc]; Republic v. Sandiganbayan, 565 Phil. 172 (2007) [Per J. Quisimbing, Second Division]; Republic v. Estate of Hans Merzi, 512 Phil. 425 (2005) [Per J. Tinga, En Banc]; Fortun v. Macapagal Arroyo, 684 Phil. 526 (2012) [Per J. Abad, En Banc]; Frivaldo v. Commission on Elections, 255 Phil. 934 (1989) [Per J. Cruz, En Banc]; First Phil. Holdings Corp. v. Trans Middle East Equities Inc., 622 Phil. 623 (2009) [Per J. Chico-Nazario, Third Division]; Associated Bank v. Spouses Montano, 619 Phil. 128 (2009) [Per J. Nachura, Third Division]; National Development Co. v. Philippine Veteran's Bank, 270 Phil. 349 (1990) [Per J. Cruz, En Banc]; Dizon v. Eduardo, 242 Phil. 200 (1988) [Per J. Teehankee, En Banc]; People v. Pacificador, 406 Phil. 774 (2001) [Per J. de Leon, Jr., Second Division]; PNCC v. Pabion, 377 Phil. 1019 (1999) Dissenting Opinion 21 G.R. Nos. 225973, 225984, 226097, 226116, 226117, 226120, and 226294 [Per J. Panganiban, Third Division]; Frivaldo v. Commission on Elections, 327 Phil. 521 (1996) [Per J. Panganiban, En Banc]; Carpio Morales v. Court of Appeals, G.R. No. 217126, November 10, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/november2015/217126-27.pdf> [Per J. Perlas-Bernabe, En Banc]; Heirs of Licaros v. Sandiganbayan, 483 Phil. 510 (2004) [Per J. Panganiban, Third Division]; Philippine Free Press Inc. v. Court of Appeals, 510 Phil. 411 (2005) [Per J. Garcia, Third Division]; Taruc v. Ericta, 250 Phil. 65 (1988) [Per J. Paras, En Banc]; Marcos v. Sandiganbayan, 357 Phil. 762 (1998) [Per J. Purisima, En Banc]; Republic v. Sandiganbayan, 453 Phil. 1059 (2013) [Per J. Puno, En Banc]; Biraogo v. Philippine Truth Commission, 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].
[79] J. Cruz, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 555 (1989) [Per Curiam, En Banc]; J. Padilla, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 556-558 (1989) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 559-560 (1989) [Per Curiam, En Banc]; C.J. Teehankee, Concurring Opinion in Olaguer v. Military Commission. No. 34, 234 Phil. 144, 164-179 (1987) [J. Gancayco, En Banc]; J. David, Dissenting Opinion in Tabuena v. Sandiganbayan, 335 Phil. 795, 878-886 (1997) [J. Francisco, En Banc]; J. Panganiban, Dissenting Opinion in Tabuena v. Sandiganbayan, 335 Phil. 795, 911-913 (1997) [J. Francisco, En Banc]; J. Kapunan, Dissenting Opinion in Lacson v. Perez, 410 Phil. 78, 95-107 (2001) [J. Melo, En Banc]; J. Cruz, Separate Opinion in In Re Umil v. Ramos, 279 Phil. 266, 306-311 (1991) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in In Re Umil v. Ramos, 279 Phil. 266, 332-344 (1991) [Per Curiam, En Banc]; J. Sandoval, Dissenting Opinion in Sanlakas v. Reyes, 466 Phil. 482, 534-548 (2004) [Per J. Tinga, En Banc]; J. Sandoval, Concurring Opinion in Lambino v. Commission on Elections, 536 Phil. 1, 154-186 (2006) [Per J. Carpio, En Banc]; J. Puno, Separate Opinion in Republic v. Sandiganbayan, 454 Phil. 504, 551-630 (2003) [Per J. Carpio, En Banc]; J. Cruz, Dissenting and Concurring Opinion in In Re Umil v. Ramos, 265 Phil. 325, 355 (1990) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in In Re Umil v. Ramos, 265 Phil. 325, 355-365 (1990) [Per Curiam, En Banc]; C.J. Panganiban, Concurring Opinion in David v. Macapagal-Arroyo, 522 Phil. 705, 812-813 (2006) [Per J. Sandoval-Gutierrez, En Banc]; J. Cruz, Dissenting Opinion in Sarmiento v. Mison, 240 Phil. 505, 541-546 (1987) [J. Padilla, En Banc].
[80] Marcos v. Manglapus, 258-A Phil. 547 (1989) [Per Curiam, En Banc]; Republic v. Marcos-Manotok, 681 Phil. 380 (2012) [Per J. Sereno, Second Division]; E. Razon, Inc. v. Philippine Ports Authority, 235 Phil. 223 (1987) [Per J. Fernan, En Banc]; Presidential Commission on Good Government v. Peña, 243 Phil. 93 (1988) [Per C.J. Teehankee, En Banc]; Liwayway Publishing v. Presidential Commission on Good Governance, 243 Phil. 864 (1988) [Per C.J. Teehankee, En Banc]; Quisimbing v. Sandiganbayan, 591 Phil. 633 (2008) [Per J. Carpio-Morales, Second Division]; Samahang Manggawang Rizal Park v. National Labor Relations Commission (1991) [Per J. Cruz, First Division]; Republic v. Sandiganbayan, 499 Phil. 138 (2005) [Per Sandoval-Gutierrez, Third Division]; Phil. Coconut Producers Federation Inc. v. Presidential Commission on Good Governance, 258-A Phil. 1 (1989) [Per J. Narvasa, En Banc]; Cuenca v. Presidential Commision on Good Government, 561 Phil. 235 (2007) [Per J. Velasco Jr., Second Division]; Romualdez v. Regional Trial Court, G.R. No. 104960, September 14, 1993, 226 SCRA 408 [Per J. Vitug, En Banc]; Sison v. People, 320 Phil. 112 (1995) [Per J. Puno, Second Division]; Phil. Overseas Telecom. Corp. v. Africa (2013) [Per J. Bersamin, First Division]; Vinzons-Masagana v. Estrella, 278 Phil. 544 (1991) [Per J. Paras, En Banc]; Republic v. Sandiganbayan, 310 Phil. 402 (1995) [Per C.J. Narvasa, En Banc]; Secretary of Finance v. Ilarde, 497 Phil. 544 (2005) [Per J. Chico-Nazario, En Banc].
[81] C.J. Teehankee, Concurring Opinion in Bataan Shipyard v. Presidential Commission on Good Government, 234 Phil. 180, 238-249 (1987) [Per J. Narvasa, En Banc]; J. Bersamin, Concurring Opinion in Republic v. Cojuanco, 689 Phil. 149, 173-179 (2012) [Per J. Abad, En Banc]; C.J. Teehankee, Concurring Opinion in Tuason v. Register of Deeds, 241 Phil. 650, 663-665 (1988) [Per J. Narvasa, En Banc]; J. Kapunan, Dissenting Opinion in Lacson v. Perez, 410 Phil. 78, 95-107 (2001) [Per J. Melo, En Banc]; J. Teehankee, Concurring Opinion in In re Agcaoili v. Enrile, 226 Phil. 611, 622-624 (1986) [Per J. Narvasa, En Banc]; J. Cruz, Dissenting Opinion in DBP v. Judge Pundogar, G.R. No. 96921, January 29, 1993, 218 SCRA 118 [Per J. Romero, En Banc].
[82] Memorandum (G.R. No. 225973), p. 98, citing Republic v. Sandiganbayan, 454 Phil. 504 (2003) [Per J. Carpio, En Banc].
[83] 242 Phil. 200 (1988) [Per J. Teehankee, En Banc].
[84] Id. at 202-204.
[85] 495 Phil. 372 (2005) [Per J. Tinga, Second Division].
[86] Id. at 375.
[87] 243 Phil. 93 (1988) [Per C.J. Teehankee, En Banc].
[88] Id. at 106-107.
[89] G.R. No. 105090, September 16, 1993, 226 SCRA 499 [Per J. Puno, Second Division].
[90] Id. at 511-512.
[91] 910 F. Supp. 1460 (D. Haw. 1995).
[92] Id. at 4-5.
[93] Rosales Memorandum, p. 104.
[94] 103 F. 3d 762 (9th Cir. 1996).
[95] Id. as cited in Memorandum (G.R. No. 225973), p. 105.
[96] Federal Office for Police Matters v Aguamina Corp., 1A.87/1994/err (Swiss Federal Court, 10 December 1997), cited in Memorandum (G.R. No. 225973), p. 106.
[97] 453 Phil. 1059 (2003) [Per J. Corona, En Banc].
[98] Id. at 1131-1143.
[99] Mercado v. Santos, 66 Phil. 215, 222 (1938) [Per J. Laurel, En Banc].
[100] TSN, Oral Arguments, August 31, 2016, p. 206, Statement of Chairperson Lina Castillo Sarmiento of the Human Rights Victims' Claims Board.
[101] Report of the Transitional Justice and Reconciliation Commission, 31 <http://www.tjrc.ph/skin/vii_tjrc/pdfs/report.pdf> (visited November 7, 2016).
[102] Id.
[103] Id.
[104] Id. The Transitional Justice and Reconciliaton Commission was created through the GPH-MILF negotiation process. It was mandated to undertake a study and, among others, propose appropriate mechanism to address legitimate grievances of the Bangsamoro People, as well as address human rights violations.
[105] Id. at 32.
[106] Id. at 31-37.
[107] TSN, Oral Arguments, August 31, 2016, pp. 200-201.
[108] Id. at 203-204.
[109] Id. at 203.
[110] Id.
[111] Id. at 208-209.
[112] Id. at 209-211.
[113] Id. at 208-212.
[114] Id. at 214-215.
[115] Rep. Act No. 10086, sec. 5.
[116] Rep. Act No. 10086, sec. 5.
[117] Rep. Act No. 10086, sec. 5.
[118] Rep. Act No. 10086, sec. 7(h).
[119] Rep. Act No. 10086, sec. 13.
[120] National Historical Commission of the Philippines, Why Ferdinand Marcos Should Not Be Buried at the Libingan ng mga Bayani, July 12, 2016 <https://drive.google.com/file/d/0B9c6mrxI4zoYS2I0UWFENEp6TkU/view> (visited November 7, 2016).
[121] Id. at 24.
[122] OSG Memorandum, pp. 19-20.
[123] Aries Joseph Hegina, Duterte won't change mind on hero's burial for Marcos, Inquirer.Net, May 26, 2016 <http://newsinfo.inquirer.net/787590/duterte-wont-change-mind-on-heros-burialfor-marcos#ixzz4IQcNtc8X> (visited November 7, 2016).
Fiona Nicolas, Duterte defends hero's burial for Marcos: A matter of enforcing the law, CNN Philippines, August 18, 2016 <http://cnnphilippines.com/news/2016/08/18/duterte-defends-marcosheros-burial-libingan-ng-mga-bayani-enforcing-law.html> (visited November 7, 2016).
[124] TSN, Oral Arguments, September 7, 2016, pp. 8 and 93.
[125] Id. at 8.
[126] G.R. No. 73748, May 22, 1986 <http://elibrary.judiciary.gov.ph/dtSearch/dtisapi6.dll?cmd=getdoc&DocId=142363&Index=%2aaa1de0751c9cff7439815a4b27e3ab58&HitCount=5&hits=4+d+38+71+el+&SearchForm=C%3a%5celibrev%5celibsearch%5cdtform>, as cited in Saturnino V. Bermudez, 229 Phil. 185, 188 (1986) [Per Curiam, En Banc].
[127] Rosales et al., Memorandum (G.R. No. 225973), p. 109.
[128] Id.
[129] Id., citing Closing remarks of the President of the Constitutional Commission at the final session, Official Gazette, October 15, 1986 <http://www.gov.ph/1986/10/15/closing-remarks-of-the-presidentof-the-constitutional-commission-at-the-final-session-october-15-1986> (visited November 7, 2016).
[130] See also Implementing Rules and Regulations of Rep. Act No. 10368, sec. 3(a):
SECTION 3. Declaration of Policy. Consistent with Sections 2 and 11 of Article II, and Section 12 of Article III of the 1987 Constitution of the Republic of the Philippines, and adhering to international human rights law and conventions, it is the declared policy of the State to:
a) | Recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity[.] |
[131] See also Implementing Rules and Regulations of Rep. Act No. 10368, sec. 3(b) and (c):
SECTION 3. Declaration of Policy. - Consistent with Sections 2 and 11 of Article II, and Section 12 of Article III of the 1987 Constitution of the Republic of the Philippines, and adhering to international human rights law and conventions, it is the declared policy of the State to:
. . . .
b) | Acknowledge its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime; |
c) | Acknowledge the sufferings and damages inflicted upon persons whose properties or businesses were forcibly taken over, sequestered or used, or those whose professions were damaged and/or impaired, or those whose freedom of movement was restricted, and/or such other victims of the violations of the Bill of Rights. |
[132] Rep. Act No. 10368, sec. 2.
[133] Article III of the 1987 Constitution provides for the Bill of Rights. The Bill of Rights was also found in Article 4 of the 1973 Constitution, Article III of the 1935 Constitution; also the Title IV, Political Constitution of the Malolos Constitution and the President McKinley's Instructions of April 7, 1900.
[134] Rep. Act No. 10368, sec. 2.
[135] Rep. Act No. 10368, sees. 8 to 14 provide:
SECTION 8. Creation and Composition of the Human Rights Victims' Claims Board. - There is hereby created an independent and quasi-judicial body to be known as the Human Rights Victims' Claims Board, hereinafter referred to as the Board. It shall be composed of nine (9) members, who shall possess the following qualifications:
(a) | Must be of known probity, competence and integrity; |
(b) | Must have a deep and thorough understanding and knowledge of human rights and involvement in efforts against human rights violations committed during the regime of former President Ferdinand E. Marcos; |
(c) | At least three (3) of them must be members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years; and |
(d) | Must have a clear and adequate understanding and commitment to human rights protection, promotion and advocacy. |
The Human Rights Victims' Claims Board shall be attached to but shall not be under the Commission on Human Rights (CHR).
The Board shall organize itself within thirty (30) days from the completion of appointment of all nine (9) members and shall thereafter organize its Secretariat.
SECTION 9. Appointment to the Board. - The President shall appoint the Chairperson and the other eight (8) members of the Board: Provided, That human rights organizations such as, but not limited to, the Task Force Detainees of the Philippines (TFDP), the Free Legal Assistance Group (FLAG), the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI), the Families of Victims of Involuntary Disappearance (FIND) and the Samahan ng mga Ex-Detainees Laban sa Detensyon at Aresto (SELDA) may submit nominations to the President.
. . . .
SECTION 11. Resolution of Claims. - The Board shall be composed of three (3) divisions which shall function simultaneously and independently of each other in the resolution of claims for reparation. Each division shall be composed of one (1) Chairperson, who shall be a member of the Philippine Bar and two (2) members to be appointed by the Board en banc.
SECTION 12. Emoluments. - The Chairperson and members of the Board shall have the rank, salary, emoluments and allowances equivalent to a Presiding Justice and Associate Justice of the Court of Appeals, respectively. cEAIHa
SECTION 13. Secretariat of the Board. - The Board shall be assisted by a Secretariat which may come from the existing personnel of the CHR, without prejudice to the hiring of additional personnel as determined by the Board to accommodate the volume of required work. The following shall be the functions of the Secretariat:
(a) Receive, evaluate, process and investigate applications for claims under this Act;
(b) Recommend to the Board the approval of applications for claims;
(c) Assist the Board in technical functions; and
(d) Perform other duties that may be assigned by the Board.
The Chairperson of the Board shall appoint a Board Secretary who shall head the Secretariat for the duration of the existence of the Board. There shall be a Technical StaffHead assisted by five (5) Legal Officers and three (3) Paralegal Officers; and an Administrative Staff Head assisted by three (3) Administrative Support Staff.
When necessary, the Board may hire additional contractual employees or contract a service provider to provide services of counselors, psychologists, social workers and public education specialists, among others, to augment the services of the Secretariat: Provided, That the maximum contract amount per year shall not exceed more than fifteen percent (15%) of the total annual operating budget of the Board.
SECTION 14. Operating Budget of the Board. - The operating budget of the Board shall be funded from the Ten billion peso (P10,000,000,000.00) fund, with Ten million pesos (P10,000,000.00) as its initial operating budget: Provided, That it shall not exceed Fifty million pesos (P50,000,000.00) a year.
[136] Rep. Act No. 10368, sec. 10 provides:
SECTION 10. Powers and Functions of the Board. - The Board shall have the following powers and functions:
(a) | Receive, evaluate, process and investigate applications for claims under this Act; |
(b) | Issue subpoena/s ad testificandum and subpoena/s duces tecum; |
(c) | Conduct independent administrative proceedings and resolve disputes over claims; |
(d) | Approve with finality all eligible claims under this Act; |
(e) | Deputize appropriate government agencies to assist it in order to effectively perform its functions; |
(f) | Promulgate such rules as may be necessary to carry out the purposes of this Act, including rules of procedure in the conduct of its proceedings, with the Revised Rules of Court of the Philippines having suppletory application; |
(g) | Exercise administrative control and supervision over its Secretariat; |
(h) | The Board, at its discretion, may consult the human rights organizations mentioned in Section 9 herein; and |
(i) | Perform such other duties, functions and responsibilities as may be necessary to effectively attain the objectives of this Act. |
[137] Rep. Act No. 10368, sec. 10(d) provides:
SECTION 10. Powers and Functions of the Board. - The Board shall have the following powers and functions:
. . . .
(d) Approve with finality all eligible claims under this Act[.]
[138] Rep. Act No. 10368, secs. 16, 17, 18. A point system is provided in section 19. Section 21 provides for the filing of sworn statements "narrating the circumstances of the pertinent human rights violations committed." Section 23 provides for a period to file claims. Section 24 provides for a system of appeal. Section 25 provides penalties for fraudulent claims, and various misuse of the funds dedicated for the implementation of the law.
SECTION 16. Claimants. - Any person who is an HRVV may file a claim with the Board for reparation and/or recognition in accordance with the provisions of this Act.
SECTION 17. Conclusive Presumption That One is an HRVV Under This Act. - The claimants in the class suit and direct action plaintiffs in the Human Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 86-0390) in the US Federal District Court of Honolulu, Hawaii wherein a favorable judgment has been rendered, shall be extended the conclusive presumption that they are HRVVs: Provided, That the HRVVs recognized by the Bantayog ng mga Bayani Foundation shall also be accorded the same conclusive presumption: Provided, further, That nothing herein shall be construed to deprive the Board of its original jurisdiction and its inherent power to determine the extent of the human rights violations and the corresponding reparation and/or recognition that may be granted.
SECTION 18. Motu Proprio Recognition. - The Board may take judicial notice motu proprio of individual persons who suffered human rights violations as defined herein and grant such persons recognition as HRVVs and included in the Roll of Victims as provided for in Section 26 hereof.
. . . .
SECTION 19. Determination of Award. - (a) The Board shall follow the point system in the determination of the award. The range shall be one (1) to ten (10) points, as follows:
(1) | Victims who died or who disappeared and are still missing shall be given ten (10) points; |
(2) | Victims who were tortured and/or raped or sexually abused shall be given six (6) to nine (9) points; |
(3) | Victims who were detained shall be given three (3) to five (5) points; and |
(4) | Victims whose rights were violated under Section 3, paragraph (b), nos. (4), (5) and (6) under this Act shall be given one (1) to two (2) points. |
SECTION 21. Documentation of Human Rights Violations Committed by the Marcos Regime. - In the implementation of this Act and without prejudice to any other documentary or other evidence that may be required for the award of any reparation, any HRVV seeking reparation shall execute a detailed sworn statement narrating the circumstances of the pertinent human rights violationls committed.
. . . .
SECTION 23. Period for Filing of Claims; Waiver. - An HRVV shall file an application for reparation with the Board within six (6) months from the effectivity of the implementing rules and regulations (IRR) of this Act: Provided, That failure to file an application within said period is deemed a waiver of the right to file the same: Provided, further, That for HRVVs who are deceased, incapacitated, or missing due to enforced disappearance, their legal heir/s or representatives, shall be entitled to file an application for reparation on their behalf.
Any opposition to the new application/s pursuant to Section 16 hereof shall only be entertained if such is filed within fifteen (15) days from the date of the last publication of the official list of eligible claimants as may be determined by the Board. The Board shall cause the publication of the official list of eligible claimants once a week for three (3) consecutive weeks in at least two (2) national newspapers of general circulation.
SECTION 24. Appeal. - Any aggrieved claimant or oppositor may file an appeal within ten (10) calendar days from the receipt of the Resolution of the Division, to the Board en banc, whose decision shall then become final and executory.
SECTION 25. Peñalties; Applicability of the Revised Peñal Code. - Any claimant who is found by the Board, after due hearing, to have filed a fraudulent claim, shall be referred to the appropriate office for prosecution. If convicted, he shall suffer the imprisonment of eight (8) to ten (10) years, shall be disqualified from public office and employment and shall be deprived of the right to vote and be voted for in any national or local election, even after the service of sentence unless granted absolute pardon. Any member of the Board and its Secretariat, public officer, employee of an agency or any private individual mandated to implement this Act, who shall misuse, embezzle or misappropriate the funds for the reparation of HRVVs or who shall commit fraud in the processing of documents and claims of HRVVs, or shall conspire with any individual to commit the same, shall also be prosecuted.
Any member of the Board and its Secretariat, public officer, employee of an agency or any private individual mandated to implement this Act, who may have been found gnilty of committing any or all of the prohibited acts stated in the preceding paragraph, or those acts punishable under the Revised Peñal Code, shall be penalized under the pertinent provisions in the Code and relevant special penal laws.
[139] Rep. Act No. 10368, sec. 16, in relation to the definition of victim in sec. 3 (b), provides:
SECTION 16. Claimants. - Any person who is an HRVV may file a claim with the Board for reparation and/or recognition in accordance with the provisions of this Act.
[140] Rep. Act No. 10368, sec. 17 provides:
SECTION 17. Conclusive Presumption That One is an HRVV Under This Act. - The claimants in the class suit and direct action plaintiffs in the Human Rights Litigation Against the Estate of Ferdinand E. Marcos (MDL No. 840, CA No. 86-0390) in the US Federal District Court of Honolulu, Hawaii wherein a favorable judgment has been rendered, shall be extended the conclusive presumption that they are HRVVs: Provided, That the HRVVs recognized by the Bantayog ng mga Bayani Foundation shall also be accorded the same conclusive presumption: Provided, further, That nothing herein shall be construed to deprive the Board of its original jurisdiction and its inherent power to determine the extent of the human rights violations and the corresponding reparation and/or recognition that may be granted.
[141] Rep. Act No. 10368, sec. 18 provides:
SECTION 18. Motu Proprio Recognition. - The Board may take judicial notice motu proprio of individual persons who suffered human rights violations as defmed herein and grant such persons recognition as HRVVs and included in the Roll of Victims as provided for in Section 26 hereof.
[142] Rep. Act No. 10368, sec. 3(b).
[143] Rep. Act No. 10368, sec. 3(c).
[144] Rep. Act No. 10368, sec 3(d).
[145] Rep. Act No. 10368, sec. 3(c).
[146] Commission on Human Rights Memorandum, pp. 9-16.
[147] 540 Phil. 389 (2006) [Per J. Chico-Nazario, First Decision].
[148] Id. at 404-405.
[149] Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 (1927) [Per J. Malcolm, Second Division] citing Cooley's Constitutional Limitations, 7th ed., pp. 126 131, 157-162.
[150] CONST., art. VII, sec. 17.
[151] TSN, Oral Arguments, September 7, 2016, pp. 156-159.
[152] Rep. Act No. 10368, sec. 2, par. 2.
[153] Rep. Act No. 10368, sec. 2, par. 2.
[154] Rep. Act No. 10368, sec. 19.
[155] Rep. Act No. 10368, sec. 19(c). The monetary value shall be dependent on a point system.
[156] Rep. Act No. 10368, sec. 5.
[157] Rep. Act No. 10368, sec. 21.
[158] G.R. No. 212081, February 23, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/february2015/212081.pdf> [Per J. Perlas-Bernabe, First Division].
[159] Id. at 10-11, citing Atienza v. Villarosa, 497 Phil. 689 (2005) [Per J. Callejo, Sr., En Banc].
[160] Universal Declaration of Human Rights, art. 8 provides:
Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
[161] International Covenant of Civil and Political Rights, art. 2 provides:
Article 2.
- Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
- Each State Party to the present Covenant undertakes:(a)To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;(b)To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;(c)To ensure that the competent authorities shall enforce such remedies when granted.
Article 6. States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
[163] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 14 provides:
Article 14.
- Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
- Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.
Article 39. States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, selfrespect and dignity of the child.
[165] Hague Convention Respecting the Laws and Customs of War on Land, art. 3 provides:
Article 3. A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
[166] Protocol Additional to the Geneva Conventions, art. 91 provides:
Article 91. Responsibility - A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
[167] Rome Statute of the International Criminal Court, art. 68 provides:
Article 68. Protection of the victims and witnesses and their participation in the proceedings
- The Court shall take appropriate measures to protect the safety, physical and psychological wellbeing, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
- As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.
- Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.
- The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6.
- Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
- A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.
Article 75. Reparations to victims
- The Court shall establish principles relating to reparations to, or in respect of victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.
- The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.
- Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.
- In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.
[169] Rome Statute of the International Criminal Court, art. 75.
[170] The Philippines signed and approved the Universal Declaration on Human Rights on December 10, 1948 as part of the United Nations General Assembly that adopted it; ratified the International Convention on Civil and Political Rights on October 23, 1986; the International Convention on the Elimination of All Forms of Racial Discrimination on September 15, 1967; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on June 26, 1987; Convention on the Rights of the Child on Augnst 21, 1990; the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of June 8, 1977 on March 30, 2012; the Rome Statute of the International Criminal Court on Augnst 30, 2011.
[171] UN G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (16 December 2005). The Basic Principles and Guidelines were recommended by the UN Commission on Human Rights in its resolution 2005/35 dated April 19, 2005 and by the Economic and Social Council also in its resolution dated 2005/30 dated July 25, 2005.
[172] Basic Principles, 7th whereas clause provides:
Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms[.]
[173] Rep. Act No. 10368, sec. 2
[174] See Memoradum (G.R. No. 225973), p. 47; Memorandum Commission on Human Rights Memorandum, p. 7.
[175] CONST., art II, sec. 11.
[176] CONST., art. II, sec. 11.
[177] League of Cities of the Phils. v. Commission on Elections, 592 Phil. 1, 62 (2008) [Per J. Carpio, En Banc].
[178] China Banking Corp. v. Court of Appeals, 333 Phil. 158, 173 (1996) [Per J. Francisco, Third Division].
[179] 332 Phil. 20 (1996) [Per J. Panganiban, En Banc].
[180] Id. at 36.
[181] 354 Phil. 948 (1998) [Per J. Puno, En Banc].
[182] Id. at 967-968.
[183] Ponencia, pp. 51-52.
[184] G.R. No. 106440, January 29, 1996, 252 SCRA 412 [Per J. Vitug, First Division].
[185] 40 Phil. 349 (1919) [Per J. Johnson, En Banc].
[186] Solicitor General Consolidated Comment, p. 43.
[187] Id. at 60-61.
[188] 258 Phil. 479 (1989) [Per J. Cortes, En Banc].
[189] Id. at 492.
[190] Id.
[191] Id. at 509.
[192] 515 Phil. 1 (2006) [Per J. Carpio Morales, En Banc].
[193] Id. at 48-49.
[194] 406 Phil. 1 (2001) [Per J. Puno, En Banc].
[195] Id. at 43-44. See also Lawyers' League for a Better Philippines v. Aquino, G.R. No. 73748, May 22, 1986 <http://elibrary.judiciary.gov.ph/dtSearch/dtisapi6.dll?cmd=getdoc&DocId=l42363&Index=%2aaa1de0751c9cff7439815a4b27e3ab58&HitCount=5&hits=4+d+38+71+el+&SearchForm=C%3a%5celibrev%5celibsearch%5cdtform>, as cited in Saturnino V. Bermudez, 229 Phil. 185, 188 (1986) [Per Curiam, En Banc].
[196] Solicitor General, Consolidated Comment, page 5.
[197] 160 Phil. 637 (1975) [Per J. Fernando, En Banc].
[198] Id. at 644.
[199] 258 Phil. 479 (1989) [Per J. Cortes, En Banc].
[200] Id. at 504, citing Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President.
[201] Id. at 504-505, citing Rossiter, The American Presidency.
[202] 466 Phil. 482 (2004) [Per J. Tinga, En Banc].
[203] Id. at 522.
[204] Id. at 518.
[205] J. Perez, Concurring Opinion, p. 9.
[206] Id. at 10.
[207] Id. at 12.
[208] Id.
[209] Id.
[210] G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> [Per J. Leonen, En Banc].
[211] Id. at 20-23.
[212] J. Brion, Concurring Opinion, p. 2.
[213] Id.
[214] Id. at 3.
[215] Id.
[216] 460 Phil. 830 (2003) [Per J. Carpio-Morales, En Banc].
[217] Id. at 881-884.
[218] J. Leonen, Dissenting Opinion in Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, April 8, 2014, 721 SCRA 146, 731-847 [Per J. Mendoza, En Banc].
[219] Id. at 738-739.
[220] Ponencia, p. 11.
[221] People v. Vera, 65 Phil. 56, 87 (1937) [Per J. Laurel, First Division].
[222] 542 Phil. 443 (2007) [Per J. Carpio Morales, Second Division].
[223] Id. at 455-456.
[224] In Re Supreme Court Judicial Independence v. Judiciary Development Fund (Resolution), UDK-15143, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/15143.pdf>
[225] Resolution, UDK-15143, January 21, 2015 [Per J. Leonen, En Banc].
[226] Id. at 9-10.
[227] Ponencia, p. 13.
[228] Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf>
[229] 714 Phil. 127 (2013) [Per J. Leonardo-de Castro, En Banc].
[230] CIVIL CODE, art. 7.
[231] Almario v. Executive Secretary, 714 Phil. 127, 163-164 (2013) [Per J. Leonardo-de Castro, En Banc].
[232] Ponencia, p. 49.
DISSENTING OPINION
CAGUIOA, J.:
I vehemently dissent.
Ultimately, the ponencia's reason to dismiss the petitions is that there is "no clear constitutional or legal basis" to hold that there was a grave abuse of discretion attending President Rodrigo R. Duterte's order to inter former President Marcos's remains in the Libingan ng mga Bayani ("LNMB"). And the premise of the statement is that the sole authority in determining who are entitled and disqualified to be interred at the LNMB is the AFP Regulations.
I cannot, as a magistrate and a citizen, in good conscience, agree. My reasons are set forth below.
The burial of former President Marcos does not raise a political question beyond the ambit of judicial review.
The ponencia holds that President Duterte's decision to have the remains interred at the LNMB involves a political question that is not a justiciable controversy.
I disagree.
The issues of justiciability and political question are inextricably intertwined. They are in reality two sides of the same coin. Their resolution usually involves mutually exclusive choices. A determination favoring one necessarily negates the other. It is an "either/or" scenario.
Invariably, any discussion of the political question doctrine will draw in the concept of judicial power and review. In turn, the presence of grave abuse of discretion amounting to lack or excess of jurisdiction is the stimulus for the exercise of judicial review.
As the doctrine of political question evolved in this jurisdiction, so did the concept of judicial power. At present, judicial power, as defined in paragraph 2, Section 1, Article VIII of the 1987 Constitution,[1] includes the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, and 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. This expanded concept of judicial power has consequently bounded, if not marginalized, the political question doctrine.
The petitioners argue that their petitions raise justiciable issues over which the Court has the power of judicial review under its expanded jurisdiction under the 1987 Constitution.[2] They cite, among others, The Diocese of Bacolod v. COMELEC,[3] Marcos v. Manglapus,[4] Integrated Bar of the Philippines v. Zamora,[5] Estrada v. Desierto,[6] and Francisco v. The House of Representatives[7] in support of their argument. These cases have resolved the political question issue as well.
On the other hand, public respondents argue that President Duterte's determination to have the remains of former President Marcos interred at the LNMB does not pose a justiciable controversy.[8] The Solicitor General claims that the decision involves "wisdom"[9] and thus beyond judicial review. In fine, public respondents pose "policy or wisdom" considerations to thwart the Court from taking cognizance of the petitions.[10] In support of his position, the Solicitor General relies on the cases of Mamba v. Lara,[11] Belgica v. Ochoa,[12] and Tañada v. Cuenco[13] as jurisprudential anchors.
In Francisco v. The House of Representatives,[14] the Court, after recalling the deliberations of the 1986 Constitutional Commission in relation to Section 1, Article VIII[15] of the 1987 Constitution, espoused that there are two species of political questions: (1) "truly political questions" or "nonjusticiable political questions" and (2) "justiciable political questions" or those which are "not truly political questions." Thus, truly political questions are beyond judicial review while courts can review questions which are not truly political in nature.[16] The Court explained in Francisco:
However, Section 1, Article VIII, of the Constitution does not define what are "truly political questions" and those which are not truly political. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr attempts to provide some:As early as the landmark case of Tañada v. Cuenco,[18] the Court has already recognized that, while the action of the executive or legislative department may be dictated by public or political policy, or may involve a question of policy or its wisdom, the judiciary is nonetheless charged with the special duty of determining the limitations which the law places on all official action, viz:x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (Italics supplied)Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of whether an issue involves a truly political question and a non-justiciable question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy.[17] (Citations omitted)
"It is not easy, however, to define the phrase 'political question', nor to determine what matters fall within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial questions, which under the constitution, 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 of the government." x x xThe Solicitor General argues that the wisdom of the President cannot be questioned when, in the exercise of his powers under the Constitution and the Administrative Code, he deemed it appropriate to inter the remains of former President Marcos in a parcel of land of the public domain devoted for the purpose of being a military shrine, and recognize his having been a former President, a Medal of Valor Awardee, a member of the retired military personnel, and a war veteran.[20]
x x x x
"x x x What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. x x x Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve [a] political question, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, 'to the end that the government may be one of laws and not [of] men' - words which Webster said were the greatest contained in any written constitutional document." x x x[19]
A mere invocation of the wisdom of the President's actions and orders does not make them untrammeled, as indeed, the exercise of Presidential powers and prerogatives is not without limitations - the exercise of the Presidential power and prerogative under the Constitution and the Administrative Code, which the public respondents invoke, is circumscribed within defined constitutional, legal, and public policy standards.
In fact, the reliance by the Solicitor General on the powers of the President under the Constitution and the 1987 Revised Administrative Code ("RAC") to justify his decision to inter the remains of former President Marcos in the LNMB necessarily calls into play any and all underlying constitutional and legal limitations to such powers. Within this paradigm, judicial review by the Court is justifiable, if not called for. There is, thus, no truly political question in relation to the assailed action of the President if this is justified to have been made allegedly pursuant to his purported powers under the Constitution and the RAC.
Apart from his powers under the Constitution and the RAC, the Solicitor General also argues that the President's order to allow former President Marcos' interment at the LNMB is based on his determination that it shall promote national healing and forgiveness, and redound to the benefit of the Filipino people.[21] He further argues that the President's decision is not simply a matter of political accommodation, or even whim, but, viewed from a wider perspective, it is geared towards changing the national psyche and thus begin the painful healing of this country.[22] Lastly, he argues that the said order is in keeping with the President's campaign promise, his quest for genuine change and his desire to efface Marcos' remains as the symbol of polarity.[23]
In fine, the Solicitor General asks the Court to take the foregoing arguments at face value and admit them as truisms without any question, on the proposition that if the Court were to scrutinize them, then the President's wisdom is being doubted. This request, however, the Court cannot grant without abnegating its constitutional duty[24] of judicial review.
Requisites of Judicial Review
The flipside to the political question doctrine would be the requisites of judicial review. Before the Court may hear and decide a petition assailing the constitutionality of a law or any governmental act, the following must first be satisfied: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[25] Of these four, the most important are the first two requisites,[26] and thus will be the focus of the following discussion.
The case presents an actual controversy ripe for adjudication.
In Belgica v. Ochoa,[27] the Court expounded anew on the requirement of actual case or controversy in this wise:
By constitutional fiat, judicial power operates only when there is an actual case or controversy. This is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that 'judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable x x x.' Jurisprudence provides that an actual case or controversy is one which 'involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. In other words, '[t]here must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.' Related to the requirement of an actual case or controversy is the requirement of 'ripeness,' meaning that the questions raised for constitutional scrutiny are already ripe for adjudication. 'A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. It is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action.' 'Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot questions.' (Emphasis supplied).With these standards, this case presents an actual case or controversy that is ripe for adjudication. The antagonistic claims on the legality of the interment of former President Marcos at the LNMB as shown in petitioners' assertion of legally enforceable rights that may be infringed upon by the subject interment, on the one hand, and the Solicitor General's insistence on the President's prerogative to promote national healing, on the other, clearly satisfy the requirement for contrariety of legal rights. Furthermore, the issues in this case are also ripe for adjudication because it has not been denied that initial preparations and planning for the subject interment have already been undertaken by public respondents.[28]
Petitioners have locus standi.
I do not agree with the ponencia's holding that none of the petitioners had standing to file the petitions for failure to show direct and personal injury.
Locus standi is defined as a right of appearance in a court of justice on a given question.[29] It refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the challenged governmental act.[30] To satisfy the requirement of legal standing, one must allege such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[31]
In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,[32] the Court recognized that in public actions, suits are not usually brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. Thus, in a long line of cases, non-traditional plaintiffs, such as concerned citizens, taxpayers and legislators, who have not been personally injured by the assailed governmental act, have been given standing by this Court provided specific requirements have been met.[33]
For legislators, they have standing to maintain inviolate the prerogatives, powers, and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action, which infringe upon their legislative prerogatives.[34]
In the case of taxpayers, they are allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutionallaw.[35]
When suing as a concerned citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. When the issue concerns a public right, however, it has been held that being a citizen and having an interest in the execution of the laws is already sufficient.[36]
Applying the foregoing standards to the present case:
(1) Victims of human rights violations during martial law have the requisite legal standing to file their respective petitions. Their personal and direct interest to question the interment and burial of former President Marcos at the LNMB rests on their right to a full and effective remedy and entitlement to monetary and non-monetary reparations guaranteed by the State under the Constitution, domestic and international laws.
(2) Petitioners also have standing as citizens-taxpayers. The public character of the LNMB and the general appropriations for its maintenance, preservation and development satisfy the requirements for a taxpayer's suit. To be sure, petitioners' assertion of every citizen's right to enforce the performance of a public duty and to ensure faithful execution of laws suffices to clothe them with the requisite legal standing as concerned citizens.
(3) However, Members of Congress in the Lagman petition and petitioner De Lima have no personality to maintain the suit as legislators because they failed to allege, much less show, how the President's directive to have the remains of former President Marcos interred at the LNMB usurps or infringes upon their legislative functions.
(4) Similarly, petitioners Saguisag, et al., as intervenors in the case, have no legal standing to maintain the suit in regard to their claim as human rights lawyers as this is too general to clothe them the legal interest in the matter in litigation or in the success of either of the parties required under the Rules of Court.[37]
Be that as it may, the question of locus standi is but corollary to the bigger question of the proper exercise of judicial power.[38] The Court may brush aside technical rules when the matter is of transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as precedents.[39]
The ponencia concludes by saying that "[the interment] would have no profound effect on the political, economic, and other aspects of our national life considering that more than twenty-seven years since his death and thirty years after his ouster have already passed." Prescinding from this statement's sheer and utter disregard of Philippine history, the implications that the assailed act bear on the State's policy to guarantee full respect for human rights embodied in the Constitution, on the body of jurisprudence acknowledging the atrocities committed during martial law, and on the legislative enactments and treaty obligations granting full protection and reparation to the victims of human rights violations, undoubtedly elevate this case to the level of transcendental importance. A relaxation of the rules of legal standing is thus properly called for.
Certiorari and prohibition are proper remedies.
The Solicitor General assails the propriety of the remedies sought by petitioners. He argues that a petition for certiorari and prohibition does not lie against public respondents inasmuch as the President, in directing the interment of former President Marcos at the LNMB, did not exercise judicial, quasi-judicial or ministerial functions.
The petitioners' resort to certiorari and prohibition was proper. A petition for certiorari or prohibition under Rule 65 is an appropriate remedy to question, on the ground of grave abuse of discretion, the act of any branch or instrumentality of government, even if the latter does not exercise judicial, quasijudicial or ministerial functions.[40]
To reiterate, the expanded definition of judicial power, under Article VIII, Section 1 of the Constitution, imposes upon the Court and all other courts of justice, the power and the duty not only to "settle actual controversies involving rights which are legally demandable and enforceable" but also "to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the Government".
In the case of Araullo v. Aquino,[41] the Court clarified that the special civil actions of certiorari and prohibition under Rule 65 of the Rules of Court are remedies by which the courts discharge this constitutional mandate. Thus, it was ruled that:
[T]he remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.Therefore, that the assailed act and/or issuances do not involve the exercise of judicial, quasi-judicial or ministerial functions is of no moment. Under the Court's expanded jurisdiction, the validity of the President's directive to have the remains of former President Marcos interred and buried at the LNMB and the legality of the assailed Memorandum and Directive issued by public respondents, are proper subjects of a petition for certiorari and prohibition.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials.
Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, the Court is not at all precluded from making the inquiry provided the challenge was properly brought by interested or affected parties. The Court has been thereby entrusted expressly or by necessary implication with both the duty and the obligation of determining, in appropriate cases, the validity of any assailed legislative or executive action. This entrustment is consistent with the republican system of checks and balances.[42]
Petitioners did not violate the rule on hierarchy of courts.
The ponencia holds that petitioners failed to observe the rule on hierarchy of courts as they should have filed with the Regional Trial Court exercising jurisdiction over public respondents, and that there exist no special, compelling and important reasons to justify direct resort to this Court.
I disagree.
In The Diocese of Bacolod v. COMELEC,[43] citing Bañez, Jr. v. Concepcion[44], the Court held:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to deal with causes that are also well within the competence of the lower courts, and thus leave time to the Court to deal with the more fundamental and more essential tasks that the Constitution has assigned to it The Court may act on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and important reasons exist to justify an exception to the policy.In the same case, however, the Court recognized that hierarchy of courts is not an iron-clad rule. Direct invocation of this Court's jurisdiction may be allowed for special, important and compelling reasons clearly spelled out in the petition, such as: (a) when there are genuine issues of constitutionality that must be addressed at the most immediate time; (b) when the issues involved are of transcendental importance; (c) in cases of first impression; (d) when the constitutional issues raised are best decided by this Court; (e) when the time element presented in this case cannot be ignored; (f) when the petition reviews the act of a constitutional organ; (g) when there is no other plain, speedy, and adequate remedy in the ordinary course of law; (h) when public welfare and the advancement of public policy so dictates, or when demanded by the broader interest of justice; (i) when the orders complained of are patent nullities; and (j) when appeal is considered as clearly an inappropriate remedy.[46]
x x x x
The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist therefore. Hence, that jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ's procurement must be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe. x x x[45]
Contrary to the ponencia's holding, there are special and compelling reasons attendant in the case at bar which justify direct resort to this Court. Apart from the fact that the issues presented here are of transcendental importance, as earlier explained, they are being brought before the Court for the first time. As no jurisprudence yet exists on the matter, it is best that this case be decided by this Court.
Moreover, while the petitions may have been directed against the Memorandum and Directive issued by public respondents, the ultimate act assailed is an executive action. In Drilon v. Lim,[47] the Court ruled:
In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the consequences of a declaration of unconstitutionality upon the stability of laws, no less than on the doctrine of separation of powers. As the questioned act is usually the handiwork of the legislative or the executive departments, or both, it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment of this Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the majority of those who participated in its discussion.[48]Furthermore, time was of the essence in this case. The public pronouncement of Presidential Spokesman Emesto Abella that the burial for former President Marcos would push through "unless the Supreme Court will issue a TRO"[49]; news reports that the burial would be scheduled on September 18, 2016,[50] and the President's statement that he was willing to allow the Marcos family to decide on the date of the burial and adding that they could even set the date of the burial on September 11, 2016,[51] cannot be ignored.
Exhaustion of administrative remedies does not apply in this case.
The ponencia upholds the Solicitor General's claim that petitioners failed to exhaust administrative remedies because they should have first sought with the Office of the President the reconsideration of the subject directives.
This is untenable.
The doctrine of exhaustion of administrative remedies is not absolute as there are numerous exceptions laid down by jurisprudence, namely: (a) when there is a violation of due process; (b) when the issue involved is purely a legal question; (c) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part of the administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a department secretary whose acts as an alter ego of the President bear the implied and assumed approval of the latter; (g) when to require exhaustion of administrative remedies would be unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a private land in land case proceedings; (j) when the rule does not provide a plain, speedy and adequate remedy; or (k) when there are circumstances indicating the urgency of judicial intervention.[52]
In the petitions before the Court, circumstances (b), (f), (g) and (k) are present.
First, as already mentioned, the case involves a matter of extreme urgency. The urgency of judicial intervention is self-evident in the Court's decision to issue a Status Quo Ante Order on August 23, 2016, which was extended until November 8, 2016.
Second, the principal issue in this case of whether the President, in ordering the interment and burial of the remains of former President Marcos at the LNMB, committed grave abuse of discretion and/or violated the Constitution and other statutes is purely of law and will ultimately be decided by the courts of justice. In this regard, Vigilar v. Aquino[53] explains the reason for the exception, viz:
Said question at best could be resolved only tentatively by the administrative authorities. The final decision on the matter rests not with them but with the courts of justice. Exhaustion of administrative remedies does not apply, because nothing of an administrative nature is to be or can be done. The issue does not require technical knowledge and experience but one that would involve the interpretation and application of law. (Emphasis supplied.)Third, it was upon the verbal order of the President that the assailed Memorandum and Directive were issued by public respondents. This, in fact, is extant in the very language of the Memorandum itself. Moreover, the President, on numerous occasions, had insisted that, notwithstanding oppositions, including the filing of the consolidated petitions, he would make good his promise to allow the burial of the former President Marcos at the LNMB[54] and even allow the Marcos family to decide on the date of the burial. With these pronouncements, seeking relief with the Office of the President would have been an exercise in futility.
Having established the jurisdiction of this Court to rule upon these consolidated petitions under Rule 65, pursuant to its power of judicial review under the expanded definition of judicial power in Article VIII, Section 1 of the Constitution, I now proceed to the substantive issues.
Grave abuse of discretion
The office of the writs of certiorari and prohibition is to correct errors of jurisdiction arising from grave abuse of discretion. Very simply, then, the most important question that needs to be answered in this case is fairly straightforward: whether or not public respondents acted with grave abuse of discretion amounting to lack or excess of jurisdiction in ordering the interment of former President Marcos in the LNMB.
Restated, in ordering the interment of former President Marcos in the LNMB, did public respondents contravene or violate the Constitution, the law, or existing jurisprudence?[55] If they did, then they committed grave abuse of discretion,[56] the ponencia concedes as much. Whimsicality, caprice and arbitrariness are also considered in determining the existence of grave abuse. I fully concur with Justice Leonen's discussion on the subject, and will confine my discussion to whether the interment violates the Constitution, law or jurisprudence.
Directly answering the question, I believe that the petitions are with merit, and that the order to inter the remains of former President Marcos in the LNMB is contrary to the Constitution, the law, and several executive issuances that have the force of law, as well as the public policy that the Constitution, the said laws, and executive issuances espouse and advance. The argument that burying former President Marcos in the LNMB does not make him a hero disregards the status of the LNMB as a national shrine, the public policy in treating national shrines, the standards set forth in these laws and executive issuances as well as in the AFP LNMB burial regulations ("AFP Regulations").
Before explaining how the intended interment of former President Marcos violates the Constitution, law, executive issuances, public policy, and custom, it would be apropos to examine the legal bases offered by the Solicitor General and private respondents Heirs of Marcos in defending the legality of the President's act of allowing the interment and burial of former President Marcos in the LNMB, as upheld by the ponencia.
The President's power to reserve tracts of land of the public domain for a specific public purpose.
The ponencia considers the President's power to reserve land for public purpose, under Section 14, Chapter IV of Book III, Title I of the RAC, as basis for the decision to inter former President Marcos in the LNMB.[57] Section 14 provides:
SECTION 14. Power to reserve Lands of the Public and Private Domain of the Government. - (1) The President shall have the power to reserve for settlement or public use, and for specific public purposes, any of the lands of the public domain, the use of which is not otherwise directed by law. The reserved land shall thereafter remain subject to the specific public purpose indicated until otherwise provided by law or proclamation.This power is, in turn, traced by the Solicitor General to the President's power to reserve lands under Commonwealth Act No. 141, or the Public Land Act.[58] The provision that empowers the President to reserve tracts of land of the public domain for a specific purpose, in turn, reads:
(2) He shall also have the power to reserve from sale or other disposition and for specific public uses or purposes, any land belonging to the private domain of the Government, or any of the Friar lands, the use of which is not otherwise directed by law, and thereafter such land shall be used for the purposes specified by such proclamation until otherwise provided by law.
First of all, it bears noting that under the provisions of both the RAC and the Public Land Act, this power to reserve government lands of the public and private domain is exercised through a Presidential Proclamation[59] or, under the Revised Administrative Code of 1917, by executive order.[60] Elsewhere in the Public Land Act, the proclamation where the reservation is made is forwarded to the Director of Lands, and may require further action from the Solicitor General.[61]CHAPTER XI
Reservations for Public and Semi-Public Purposes
SECTION 83. Upon the recommendation of the Secretary of Agriculture and Commerce, the President may designate by proclamation any tract or tracts of land of the public domain as reservations for the use of the Commonwealth of the Philippines or of any of its branches, or of the inhabitants thereof, in accordance with regulations prescribed for this purpose, or for quasi-public uses or purposes when the public interest requires it, including reservations for highways, rights of way for railroads, hydraulic power sites, irrigation systems, communal pastures or leguas comunales, public parks, public quarries, public fishponds, workingmen's village and other improvements for the public benefit.
An illustration is found in the factual milieu of Republic v. Octobre,[62] wherein a particular tract of land of the public domain was reserved for a public purpose by proclamation, and thereafter released through a subsequent proclamation by President Magsaysay. The Court cited therein the authority of the President under Section 9 of the Public Land Act to reclassify lands of the public domain "at any time and in a similar manner, transfer lands from one class to another," to validate the release of the reservation through the subsequent proclamation. This supports the conclusion that the positive act that "perfects" the reservation for public purpose (or release) is the issuance of a proclamation. In fact, in Republic v. Estonilo,[63] this mode was considered necessary for a reservation to be effective or valid:
To segregate portions of the public domain as reservations for the use of the Republic of the Philippines or any of its branches, like the Armed Forces of the Philippines, all that is needed is a presidential proclamation to that effect.In this case, however, there is no dispute that this power, argued by the Solicitor General as belonging exclusively to the President, was exercised through a verbal order. Based on the foregoing, this falls short of the manner prescribed by law for its exercise. Accordingly, absent a Presidential Proclamation, I fail to fathom how these laws (the RAC and the Public Land Act) can be used to justify the decision to inter former President Marcos in the LNMB. Moreover, without any showing that the interment is consistent with LNMB's purpose as a national shrine, it cannot be undertaken as no change in the said specific purpose has been validly made.
But even assuming arguendo that the President can exercise the power to reserve lands of the public domain through a verbal order, the exercise of this power as basis for the decision to inter former President Marcos in the LNMB must still be scrutinized in two ways: first, does the interment constitute public use or public purpose; and second, is there any law that directs the use of the land the President seeks to reserve.[64]
Based on the language of Section 14, Chapter IV of Book III, Title I of the RAC itself, the power to reserve land is qualified by the standards stated therein:
(1) | That the reservation be for settlement or public use, and for specific public purposes; |
(2) | That the use of the land sought to be reserved is not otherwise directed by law. |
First requirement: reserve tracts of land of the public domain for a specific public purpose.
On the first standard, petitioners argued during the oral arguments that the fulfillment of the President's campaign promise, made in favor of a private party, or to inter a dictator or plunderer does not constitute a legitimate public purpose as it does not serve public good. During the interpellation by Justice Carpio, this was discussed:
JUSTICE CARPIO:For his part, the Solicitor General stood firm and insisted that the subject interment serves a public purpose, when interpellated by Justice Leonen:If you bury somebody in the Libingan, you have to spend money, correct?
ATTY. COLMENARES:Yes, Your Honor.
JUSTICE CARPIO:Funds will be spent?
ATTY. COLMENARES:Yes, Your Honor.
JUSTICE CARPIO:And you will be using public property, correct?
ATTY. COLMENARES:Yes, Your Honor.
JUSTICE CARPIO:Now, the rule is public funds and public property can be used only for a public purpose, not a private purpose, correct?
ATTY. COLMENARES:Yes, Your Honor.
JUSTICE CARPIO:So, when you bury somebody in the Libingan who has been dishonorably discharged or separated from service, are you using public funds and property for a public purpose or for a private purpose?
ATTY. COLMENARES:That is not transformed, Your Honor. The shrine is intended for, the public purpose or the shrine is for enshrinement or the recognition of those who are revered and esteemed and now you are going to put someone who is not revered and esteemed. That will be a violation of that, Your Honor.
JUSTICE CARPIO:Public purpose means is that (sic), means the use of the funds or the property is for the general welfare for the public good?
ATTY. COLMENARES:Yes, Your Honor.
JUSTICE CARPIO:But if a person has been dishonorably discharged from service and you bury him there in a government property that is for a private purpose to extol or honor the family or the person?
ATTY. COLMENARES:Yes, Your Honor.
JUSTICE CARPIO:That is not for the public, there is no public good there, correct?
ATTY. COLMENARES:Yes, Your Honor.
JUSTICE CARPIO:So if the President now amends the regulations because the regulations state, that if you are dishonorably discharged, you cannot be buried in the Libingan and former President Marcos was dishonorably separated by the people in 1986, he cannot be buried but if the President now, the incumbent President amends the regulation to say that he can still be buried upon my instruction that cannot be done because that's against the Constitution because you're using public funds or property for a private purpose, correct?
ATTY. COLMENARES:Yes, Your Honor, in that sense and also in addition, if you agree with the petitioner's contention that R.A. 289 has a standard, the President's directive cannot amend R.A. 289 and now must therefore also be struck down, Your Honor.
JUSTICE CARPIO:Okay, thank you counsel, that's all.[65]
SOLICITOR GENERAL CALIDA:There appears to be some confusion on the part of the Solicitor General as to the difference between the terms "public use" and "public purpose". "Public use" connotes the traditional concept of use by the public while "public purpose" is understood more to mean in furtherance of the public good, or in the public interest.[67] The requirement of public purpose is necessary because public funds and properties cannot be used to serve primarily private benefit.I have here an excerpt, Your Honor, Section 14. "The Power to Reserve Lands of the Public and Private Domain of the Government - (1) The President shall have the power to reserve for settlement or public use, and for specific public purposes, any of the lands of the public domain, the use of which is not otherwise directed by law."
JUSTICE LEONEN:So there are two things there, public use and public purpose.
SOLICITOR GENERAL CALIDA:Yes, Your Honor.
JUSTICE LEONEN:Okay. Is the creation of a Libingan ng mga Bayani falling under that power of the president, that statutory power, for public use?
SOLICITOR GENERAL CALIDA:Yes, Your Honor.
JUSTICE LEONEN:Can any member of the public use the Libingan?
SOLICITOR GENERAL CALIDA:Not any member, Your Honor. It should be within the guidelines of the AFP Regulations.
JUSTICE LEONEN:So is it still public use?
SOLICITOR GENERAL CALIDA:It will be public use, Your Honor, depending on the observance of the classifications which allow certain persons to be interred at the Libingan ng mga Bayani.
JUSTICE LEONEN:But if it's not public, if only a few individuals, select individuals, can use the Libingan, therefore, it is not public use.
SOLICITOR GENERAL CALIDA:Maybe it can be public use but for a limited and classified persons (sic) only, Your Honor.
JUSTICE LEONEN:Is that the concept of public use? Is it your submission that that is the concept of public use?
SOLICITOR GENERAL CALIDA:Because the cemetery can only accommodate so much, it cannot accommodate the entire public of the Philippines, Your Honor.
JUSTICE LEONEN:Okay, we'll go to that later. In fact, you cited the case in your consolidated comment. Chinese Cemetery, I think, vs. the City of Manila where you said, that it does not need to have a character of everybody using it to be public use, correct? And therefore, the key there...
SOLICITOR GENERAL CALIDA:If there is a public purpose for it, yes, Your Honor.
JUSTICE LEONEN:Yes. So the key there is public purpose.[66]
This Court, in rejecting the validity of appropriating public funds for a private purpose, explained in Pascual v. Secretary of Public Works and Communications:[68]
As regards the legal feasibility of appropriating public funds for a private purpose, the principle according to Ruling Case Law, is this:While the Solicitor General argues that expenditures for the interment are supported by AFP appropriations, the President's discretion in spending AFP appropriations to support the interment of former President Marcos in the LNMB, by virtue of his power of budget implementation and his power to reserve the tract of land, remains, as stated, subject to the public purpose requirement. In this case, the legitimateness of the purpose will depend on what this Court determines to be the nature of the interment - public or private. Does it serve the public at large, or merely the partisan interests of certain individuals?"It is a general rule that the legislature is without power to appropriate public revenue for anything but a public purpose x x x It is the essential character of the direct object of the expenditure which must determine its validity as justifying a tax, and not the magnitude of the interests to be affected nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. Incidental advantage to the public or to the state, which results from the promotion of private interests and the prosperity of private enterprises or business, does not justify their aid by the use of public money." (25 R. L. C. pp. 398-400; italics supplied)The rule is set forth in Corpus Juris Secundum in the following language:"In accordance with the rule that the taxing power must be exercised for public purposes only, discussed supra sec. 14, money raised by taxation can be expended only for public purposes and not for the advantage of private individuals." (85 C.J.S. pp. 645-646; italics supplied.)Explaining the reason underlying said rule, Corpus Juris Secundum states:"Generally, under the express or implied provisions of the constitution, public funds may be used only for a public purpose. The right of the legislature to appropriate funds is correlative with its right to tax, and, under constitutional provisions against taxation except for public purposes and prohibiting the collection of a tax for one purpose and the devotion thereof to another purpose, no appropriation of state funds can be made for other than a public purpose x x x
x x x x
"The test of the constitutionality of a statute requiring the use of public funds is whether the statute is designed to promote the public interests, as opposed to the furtherance of the advantage of individuals, although each advantage to individuals might incidentally serve the public x x x" (81 C.J.S. p. 1147; italics supplied.)[69]
The ponencia holds that the recogmtwn of the former President Marcos's status or contributions as a President, veteran or Medal of Valor awardee satisfies the public use requirement, and the interment as compensation for valuable services rendered is public purpose that justifies use of public funds. Apart from lacking legal basis, this holding conveniently overlooks the primary purpose of the interment extant in the records the Solicitor General has admitted that the burial of former President Marcos was a campaign promise of the President to the Marcos family:
JUSTICE CAGUIOA:This admission by the Solicitor General indicates to me that the interment is primarily to favor the Marcos family, and serves no legitimate public purpose. Therefore, the first requirement for the legitimate exercise of the President's power to reserve has not been met. Moreover, any disbursement of public funds in connection with the interment will not be for a public purpose, as it is principally for the advantage of a private party - separate from the motivation for the same.Before the President gave his verbal order to have the remains of President Marcos interred in the Libingan, did the heirs of President Marcos make a personal request to that effect?
SOLICITOR GENERAL CALIDA:In fact, Your Honor, that was a campaign promised (sic) even before he was a President.
JUSTICE CAGUIOA:And that was a promised (sic) given to, whom?
SOLICITOR GENERAL CALIDA:To the heirs of President Marcos, Your Honor.[70]
The holding of the ponencia, shown in this light, is illogical: Marcos is not a hero, and burying him in the LNMB will not convert him into a hero. But somehow, his interment primarily serves a public purpose or otherwise serves the interest of the public at large, and this Court will allow the expenditure of public funds to inter him as a President, veteran, and/or a Medal of Valor awardee as compensation for valuable public services rendered - turning a blind eye to the disservice, damage and havoc that former President Marcos caused to this country.
Second requirement: the use of the land sought to be reserved not otherwise directed by law.
The second requirement for the validity of a reservation requires the determination of the existence of a law that requires a different use for the land to be reserved. This was the standard in Republic v. Octobre,[71] when the Court interpreted Section 64(e) of the Revised Administrative Code of 1917, the applicable provision then in force, viz:
SEC. 64. Particular powers and duties of President of the Philippines. - In addition to his general supervisory authority, the President of the Philippines shall have such specific powers and duties as are expressly conferred or imposed on him by law and also, in particular, the powers and duties set forth in this chapter.and held that "[t]he matter to be considered then is whether there is any law that directs or authorizes the President to release a disposable public land from a reservation previously made." Plainly, the powers in Section 64(d) and (e) are restated in Section 14 of the RAC cited by the Solicitor General. The Court's interpretation of Section 64(e), and by necessary extension now to Section 14 of the RAC, has two implications: first, the existence of a law directing the use of the land sought to be reserved affects the validity of the reservation - and the provisions of the said law will form part of the standards by which the court can determine the existence of grave abuse in case of violation, and second, the original specific public use or purpose continues until a subsequent law or executive issuance releases or changes the said specific public use or purpose for which the land was originally reserved.
Among such special powers and duties shall be:
x x x x
[(d) To reserve from settlement or public sale and for specific public uses any of the public domain of the (Philippine Islands) Philippines the use of which is not otherwise directed by law, the same thereafter remaining subject to the specific public uses indicated in the executive order by which such reservation is made, until otherwise provided by law or executive order.]
(e) To reserve from sale or other disposition and for specific public use or service, any land belonging to the private domain of the Government of the Philippines, the use of which is not otherwise directed by law; and thereafter such land shall be used for the specific purposes directed by such executive order until otherwise provided by law.[72]
In other words, the Solicitor General's invocation of Section 14 of the RAC, as intimated earlier, confirms that the decision to inter former President Marcos in the LNMB is not a truly political question as said decision is, in law, subject to the Court's power of judicial review to determine whether the standards of Section 14 of the RAC have been met, and alongside all other laws, issuances, judicial decisions and state of facts subject to judicial notice that relate to former President Marcos as the intended beneficiary of the directive to be interred in the LNMB. Moreover, since the land that is the present site of the LNMB is already reserved by Presidential Proclamation for a specified public use or purpose - for national shrine purposes - then such specified use or purpose continues until the land is released by another Presidential Proclamation. Since in this case, there is no such Presidential Proclamation, the interment and concomitant expenditure of public funds must, if justified by Section 14 of the RAC, constitute public purpose and be consistent with the specified purpose of its reservation, i.e. Proclamation No. 208 (s. 1967).
In fine, the verbal order to inter falls short of the required manner of exercising the power to reserve. Moreover, the interment cannot be justified by the power to reserve because it is not a legitimate public purpose, and is not consistent with the national shrine purposes of LNMB's reservation. For the same reasons that the interment serves no legitimate public purpose, no use of public property or public funds can be made to support it.
Faithful execution and power of control
As another basis for the power to order the interment of former President Marcos in the LNMB, the Solicitor General cites the President's power of control over the executive department. On the other hand, Heirs of Marcos insist that the President's order merely implements the express provisions of RA 289 and the pertinent AFP Regulations and, as such, cannot be considered as capricious or whimsical, nor arbitrary and despotic.
Petitioners, however, aver the opposite - that the Memorandum and Directive to bury former President Marcos at the LNMB violate the faithful execution clause because it disregards the clear and unequivocal declaration made by Congress in RA 10368 that former President Marcos is a recognized human rights violator.
There is no argument as to the existence of the power of control and duty of faithful execution. However, as applied to the case at bar, it bears to revisit the extent of the power of control and duty to faithfully execute laws.
The President's power of control and duty to faithfully execute laws are found in Article VII, Section 17 of the 1987 Constitution, which provides:
SECTION 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.In Book IV, Chapter 7, Section 38(a) of the RAC, control is defined to include "authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs." It has also been jurisprudentially defined as the "power of an officer to alter or modifY or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter."[73]
In Phillips Seafood (Philippines) Corp. v. The Board of Investments,[74] the Court held that the power of control is not absolute, and may be effectively limited:
Such "executive control" is not absolute. The definition of the structure of the executive branch of government, and the corresponding degrees of administrative control and supervision is not the exclusive preserve of the executive. It may be effectively limited by the Constitution, by law, or by judicial decisions. x x x (Emphasis supplied)Therefore, while the order to inter former President Marcos in the LNMB may be considered an exercise of the President's power of control, this is necessarily subject to the limitations similarly applicable to his subordinate, the Philippine Veterans Affairs Office ("PVAO") or the Quartermaster General - found in the Constitution, laws and executive Issuances.
This is consistent with the duty imposed upon the President by the faithful execution clause, which this Court explained, thus:
That the President cannot, in the absence of any statutory justification, refuse to execute the laws when called for is a principle fully recognized by jurisprudence. In In re Neagle, the US Supreme Court held that the faithful execution clause is "not limited to the enforcement of acts of Congress according to their express terms." According to Father Bernas, Neagle "saw as law that had to be faithfully executed not just formal acts of the legislature but any duty or obligation inferable from the Constitution or from statutes."[75] (Emphasis and underscoring supplied)Verily, the claim that the President is merely faithfully executing law (i.e. the AFP Regulations) when he ordered the interment must be examined in the context of the other duties or obligations inferable from the Constitution and from statutes that relate to the facts of this case. And the order to inter cannot be considered a valid exercise of his power of control, or his duty to faithfully execute the laws because the interment violates the Constitution, laws and executive issuances - how it violates these provisions are discussed subsequently in this dissent.
Residual powers of the President
In default of, or in addition to, the President's power to reserve lands, power of control, and faithful execution of the laws, the Solicitor General claims that the decision to inter former President Marcos is an exercise of the residual powers of the President. And, in this connection, the Solicitor General harps on the inherent and exclusive prerogative of the President to determine the country's policy of national healing.[76]
Residual powers are provided in Book III, Title I, Chapter 7, Section 20 of the RAC, thus:
SECTION 20. Residual Powers. - Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law.In Larin v. Executive Secretary,[77] the claim of exercise of residual power to validate the streamlining of the Bureau of Internal Revenue was examined in light of whether or not a law exists that gives the President the power to reorganize.
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:On the other hand, in Sanlakas v. Reyes,[79] this Court made the following observation on "residual powers":"Sec. 20. Residual Powers. - Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law." (italics ours)This provision speaks of such other powers vested in the President under the law. What law then which gives him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials. The validity of these two decrees are unquestionable. x x x[78]
The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office. Thus, the plenitude of the powers of the presidency equips the occupant with the means to address exigencies or threats which undermine the very existence of government or the integrity of the State.[80]Inasmuch as the Solicitor General has failed to provide the persuasive constitutional or statutory basis for the exercise of residual power, or even the exigencies which "undermine the very existence of the government or the integrity of the State" that the order to inter former President Marcos in the LNMB seeks to address, the Court should have been left with no recourse except to examine the factual bases, if any, of the invocation of the residual powers of the President, as this is the duty given to the Court pursuant to its power of judicial review. Jurisprudence mandates that there is no grave abuse of discretion provided there is sufficient factual basis for the exercise of residual powers.[81] Conversely, when there is absence of factual basis for the exercise of residual power, this will result in a finding of arbitrariness, whimsicality and capriciousness that is the essence of grave abuse of discretion.
As early as Marcos v. Manglapus,[82] the Court, after conceding to then President Corazon Aquino the discretion to prohibit the Marcoses[83] from returning to the Philippines under the "residual unstated powers of the President x x x to safeguard and protect general welfare," proceeded to still ascertain if her decision had factual basis, viz:
Under the Constitution, judicial power includes the duty 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. [Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the Court to decide.In Integrated Bar of the Philippines v. Zamora,[85] the Court, while conceding that the President has the power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion, again inquired into the factual determination by then President Joseph Ejercito Estrada as to the necessity to call out the armed forces, particularly the Marines, to aid the PNP in visibility patrols around the metropolis before it ruled that he did not gravely abuse his discretion. The Court observed:
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. or can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution limits the determination to whether or not there bas been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971,42 SCRA 448] that:Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President to conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar their return.
In the exercise of such authority, the function of the Court is merely to check-not to supplant the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act x x x [At 479-480].
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's decision.[84] (Emphasis supplied)
The 1987 Constitution expands the concept of judicial review by providing that "[T]he Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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." Under this definition, the Court cannot agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court. When political questions are involved, the Constitution limits the determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.In both Marcos v. Manglapus and Integrated Bar of the Philippines v. Zamora, the Court, pursuant to the expanded concept of judicial power under the 1987 Constitution, took the "pragmatist" approach that a political question[87] should be subject to judicial review to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action was being questioned. In turn, a determination of the existence or non-existence of grave abuse of discretion is greatly dependent upon a finding by the Court that the concerned official had adequate factual basis for his questioned action.
x x x x
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the President's exercise of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila x x x. We do not doubt the veracity of the President's assessment of the situation, especially in the light of present developments. The Court takes judicial notice of the recent bombings perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are among the areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient factual basis to call for military aid in law enforcement and in the exercise of this constitutional power.[86] (Citations omitted; emphasis supplied)
Thus, conceding to the President the power to order the interment of the former President in the LNMB, did he, however, have competent factual basis to conclude that his decision would promote national healing, genuine change and forgiveness, redound to the benefit of Filipino people, change the national psyche, begin the painful healing of this country, and efface the Marcos' remains as a symbol of polarity?
National healing, genuine change, forgiveness, change in national psyche, and effacing the Marcos's remains as the symbol of polarity are not matters which the Court can or may take judicial notice of.[88] They are not self-evident or self-authenticating. The public respondents and the private respondents, Heirs of Marcos, have, therefore, the burden to factually substantiate them. The Court cannot be left, on its own, to divine their significance in practical terms and flesh them out.
Regarding national healing, does the Solicitor General expect the Court to commiserate with and feel for whatever "pain and suffering" the Marcos family may stand to endure if former President Marcos is not interred in the LNMB? The Court has not even been apprised of the nature of such "pain and suffering." In fact, counsel for the heirs of Marcos refused to provide an answer when asked on this issue during the oral arguments, thus:
JUSTICE CAGUIOA:"[T]he painful healing of this country," borrowing the words of the Solicitor General, of the wounds brought about by the Marcos martial rule actually started with his ouster in 1986 and has progressed significantly throughout the ensuing three decades. Indeed, as far as Heirs of Marcos are concerned, they have almost regained their former political stature. At present, there is a Marcos senator,[90] who almost made it to the Vice Presidency, a Marcos representative[91] to the Congress of the Philippines, and a Marcos govemor.[92] On the other hand, the victims of the Marcos martial rule have partly won their day in court and have been so far awarded sizeable judgments.[93] Several laws (e.g. RA 10368) have been enacted that recognize the deaths, sufferings, injuries, deprivations that they endured, and accord them reparation. In simple terms, there appears to be no perceptible empirical correlation between the intended burial of former President Marcos and the supposed national healing the President seeks to promote. To be sure, no reason has been offered that would clothe the President's decision as essential to this supposed national healing.Can you tell me what injuries the Marcos family is suffering because President Marcos is (has) not been interred in the Libingan? Is there any injury?
ATTY. RAFAEL-ANTONIO:Your Honor, with all due respect the issue here is the propriety of the decision of President Duterte to inter him. The injury which the Marcos family may be suffering would be, to discuss this, would be amounting to an academic discussion, Your Honor.
JUSTICE CAGUIOA:Not necessarily, we are a court of law and a court of equity and as judges we are mandated to find a solution to any legal controversy prescinding from the emotions...
ATTY. RAFAEL-ANTONIO:Your Honor...
JUSTICE CAGUIOA:That is the basis of my question.
ATTY. RAFAEL-ANTONIO:Yes, Your Honor. I agree, Your Honor, but equity must follow the law and in this case, the laws applicable do not consider the injuries on the family of the deceased.
JUSTICE CAGUIOA:So do I take it that you will not answer my question?
ATTY. RAFAEL-ANTONIO:Yes, Your Honor.[89]
"Genuine change", without more, may have been an excellent slogan during the campaign period, but as a reason for the decision to inter former President Marcos in the LNMB, is too amorphous and nebulous. What is it in the present Filipino life that requires "genuine change", the Solicitor General has not even attempted to explain. How does the interment of former President Marcos in the LNMB effect this "genuine change"? Again, the Solicitor General has not proffered any kind of explanation.
As defined, forgiveness is a "conscious, deliberate decision to release feelings of resentment or vengeance" toward a person or group who has caused harm, regardless of whether such persons are deserving of the same.[94] Conversely, forgiveness does not mean glossing over or denying the seriousness of an offense committed against one's person, nor does it mean condoning or excusing offenses or legal accountability.[95] Instead, forgiveness entails the recognition of the pain that one has suffered, without letting such pain prevent one from attaining healing or moving on with their life.[96]
On the part of the Marcos heirs, the Solicitor General quotes in their Memorandum Ilocos Norte Governor Imee Marcos' message[97] of "simple sorry"[98] during the recent commemoration of her father's birthday, wherein she purportedly "humbly sought forgiveness."[99] Is this the forgiveness that the President is after? But, forgiveness cannot be exacted from the victims of the Marcos martial rule because the State has no right to impose the same upon them. The Court is helpless in the absence of a reasonable and acceptable explanation how the President's objective of "forgiveness" is achieved by the intended interment.
Unlike in Marcos v. Manglapus where "from the pleadings filed by the parties [therein], from their oral arguments, and the facts revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and respondents [therein] were represented, there exist factual bases for the President's decision" to bar the return of the Marcoses to the Philippines in the national interest,[100] the Solicitor General has not identified any tangible and material benefit that the nation will reap with the interment of former President Marcos in the LNMB. Thus, the Court is left with no alternative but to conclude that it will only be Heirs of Marcos, who are private citizens, who will stand to benefit from the interment.
The Solicitor General's postulate that the burial of the former President's remains in the LNMB is "geared towards changing the national psyche" is, again, as vague as the other motherhood statements that have been bandied about.
"Psyche" is simply defined as the soul, mind or personality of a person or group[101] and the mental or psychological structure of a person, especially as a motive force.[102] Conversely, "national psychology" may refer to the soul, mind, or personality of a nation, or the mental psychological structure of a nation.
The Solicitor General cannot just presume that the Court is knowledgeable of the "national psyche" that the President desires to engender or change. The President's intentions may be noble, but the Court cannot be expected to speculate as to what he understands "national psyche" to be or how the interment will engender or change the "national psyche".
As to the burial of former President Marcos being in keeping with the President's campaign promise, the Solicitor General effectively takes the position that with the President's proclamation as such, he must now keep his campaign promise because the electorate "has spoken".[103]
But again, this is equivocal to say the least. To some, the campaign promise is but a political concession to the Heirs of Marcos and to attract the votes of the Marcos loyalists. To others, who are perennially political cynics, campaign promises are made to be broken, not cast in stone, and are like debts listed on water. As to the reasons why the voters' preference in the last national elections tilted in favor of the President over the other presidential candidates, political analysts can have their field day. The Court should not try to second guess.
Regarding the Solicitor General's premise that former President Marcos' remains have become the symbol of polarity, again, the necessary foundation for this was not laid.
What the Court can take judicial notice of is that, at present, former President Marcos lies in repose at the Ferdinand E. Marcos Presidential Center,[104] which is situated in Batac, Ilocos Norte. The Center has a museum which showcases memorabilia of the former President, and a mausoleum where his remains lie inside a glass-encased coffin which has been on public display since 1993. Many flock to the mausoleum to view the remains of former President Marcos and he continues to be admired by his loyalists. Those who are presently vehemently opposing the burial of former President Marcos in the LNMB have not, for more than 20 years, questioned the right and decision of the Heirs of Marcos to have his remains lie in repose at his mausoleum. The so-called "polarity" symbolized by the remains of the former President is, again, not apparent.
Thus, the mere incantation of buzzwords such as "national psyche," "national healing," "genuine change," "campaign promise" and "effacing symbol of polarity" as the wisdom underlying the challenged order of the President appears - in the absence of anything other than such incantation - is nothing more than a legerdemain resorted to to prevent the Court from taking judicial cognition thereof and to make the President's action inscrutable. Without sufficient factual bases, these magic words are ephemeral and ambiguous. The Solicitor General has failed to provide even the minimum specifics as to how such objectives, as lofty as they are or pretended to be, will be achieved if the President's order is implemented. Consequently, this failure to substantiate the factual bases of the President's assailed action should have left the Court with no option but to rule that the President's intended action is bereft of any factual basis and, for that reason, following Marcos v. Manglapus, already constitutes grave abuse of discretion.
Summation
To recapitulate: (1) there was no valid exercise of the power to reserve under Section 14 of the RAC; (2) the President may validly order the interment of former President Marcos in the LNMB pursuant to his power of control and his duty to faithfully execute laws, provided that no contravention of the Constitution, laws, executive issuances, public policy, customs and international obligations arises therefrom or is committed; (3) the Solicitor General failed to show any contingency for the valid exercise of the President's residual powers, and likewise failed to demonstrate sufficient factual basis to justify the interment of former President Marcos in the LNMB.
Turning now to the relevant provisiOns of the Constitution, laws, executive issuances, public policy, customs and international obligations, I will explain in turn how the interment violates them, and thus, constitutes grave abuse.
The laws, executive issuances, public policy and customs that were violated.
Republic Act No. 289
Petitioners' reliance on RA 289 as anchor for their argument that the intended burial of former President Marcos is prohibited by this law is misplaced.
RA 289 directed the construction of a National Pantheon intended to be the burial place for all the Presidents of the Philippines, national heroes and patriots,[105] and established the Board of National Pantheon that is mandated to cause the interment in the National Pantheon of the mortal remains of all Presidents of the Philippines, national heroes and patriots.[106] Subsequently, in Proclamation No. 431 issued by President Quirino in 1953, a parcel of land in Quezon City was reserved. Thereafter, by virtue of Proclamation No. 42 (s. 1954), this reservation was withdrawn. No other property has been thus earmarked or reserved for the construction of a National Pantheon.
I agree that RA 289 is not applicable. Reading RA 289 together with Proclamation No. 431 leads to no other conclusion than that the land on which the National Pantheon was to be built refers to a discrete parcel of land that is different from site of the LNMB. To be sure, the history of the LNMB, is that of a parcel of land identified by Proclamation No. 208 Series of 1967, dated May 28, 1967, which is parcel 3, Psu-2031, consisting of 1,428,800 square meters and whose technical description is reflected in said Proclamation No. 208. Accordingly, it is non sequitur to argue the applicability of RA 289, or the standards indicated therein, to the LNMB, which is a parcel of land that is totally different and distinct.
That said, I fully concur with Justice Leonen that RA 289 remains an effective law consistent with Article 7 of the Civil Code.
PD 105, RA 10066 and 10086, and the specific policy in the treatment of national shrines
It has to be acknowledged that there is no dispute that the present LNMB is rightfully a military memorial declared as a national shrine. The history of the LNMB, as it is expressed in the different PDs and executive issuances, shows that it is not an ordinary cemetery; it is not an ordinary gravesite. Truthfully, and legally, its status as a national shrine is beyond cavil.
In this regard, PD 105 squarely directs how national shrines should be regarded. And while the decree specifically mentions several places as national shrines, it also unequivocally provides that all national shrines "and others which may be proclaimed in the future as national shrines" are to be regarded and treated as "hallowed places".
Thus, the third Whereas clause of PD 105 mandates that "it is the policy of the Government to hold and keep said National Shrines as sacred and hallowed place."[107]
PD 105 is not a mere executive issuance. It is law. And this law establishes a specific State policy in the treatment of all national shrines declared before and after its issuance. Accordingly, since the LNMB has been declared as a national shrine, the specific State policy to hold and keep national shrines as a "sacred and hallowed place" necessarily covers the LNMB. To be sure, this policy extends to the LNMB despite the fact that its declaration as a national shrine predated PD 105 as there is no rational basis why the LNMB, already declared a national shrine by Proclamation No. 208 in 1967, should be treated differently from those sites that have been declared as national shrines after PD 105.
The argument that PD 105 applies only to places of birth, exile, imprisonment, detention or death of great and eminent leaders of the nation is too narrow and myopic a reading that it deserves scant consideration. Indeed, this interpretation is contradicted and belied by the very language of PD 105 itself which recognizes all other national shrines that "may be declared in the future" as also being sacred and hallowed places. The Court can take judicial notice of a number of places declared as national shrines after PD 105 and therefore to be treated as sacred and hallowed places - that are not places of birth, exile, imprisonment, detention or death of great and eminent leaders, such as the Kiangan War Memorial Shrine which was established to perpetuate the surrender site for the Japanese Imperial Forces and to serve as a reminder of the "uselessness of war as a means of solving international differences",[108] the Quezon Memorial Circle which was established in memory of the late President Manuel L. Quezon even as President Quezon died in New York, and the Balete Pass[109] which was a battlefield where the Americans and the Filipinos fought against the Japanese Imperial Forces. To insist that the provisions of PD 105, and the proscription against the prohibited acts listed therein, will apply to a national shrine only if said national shrine is the place of birth, exile, imprisonment, detention or death of a great and eminent leader is plainly ridiculous and downright error.
I find that PD 105 is applicable. No proposition is being made to expand the import of the decree beyond its express terms; no penalty is sought against any act involved in this case. What is inescapable, however, is the explicit statement of government policy to hold national shrines sacred. As well, the same policy is reiterated in RA 10066 and RA 10086-order the preservation or conservation of the cultural significance of national shrines.
In this connection, the policy of PD 105 to hold and keep the LNMB as a "sacred and hallowed place" is in keeping with, and completely aligned with, the esteem and reverence that Proclamation No. 89 accords to the fallen soldiers, war dead and military personnel who were meant to be buried in the LNMB.
As admitted by the Solicitor General during oral arguments, the words "esteem and reverence" in Proclamation No. 89 and "sacred and hallowed" in PD 105 are not empty and meaningless. The words "esteem and reverence" set and mandate how the LNMB, in particular, should be regarded, whereas the words "sacred and hallowed" direct how national shrines, in general, should be treated.
Truly, it is precisely because of the country's collective regard of the LNMB as the memorial in honor of the heroism, patriotism and nationalism of its war dead as well as its fallen soldiers and military personnel that President Duterte held the rites honoring the country's national heroes at the LNMB in the morning of August 29, 2016.[110] There is no question that LNMB has traditionally been the site where National Heroes Day is commemorated.
The main premise of the ponencia appears to be that the LNMB is still primarily and essentially a military memorial, or a military shrine, notwithstanding the fact that it was purposely excluded from the military reservation for national shrine purposes by Proclamation No. 208. The military nature of the LNMB is seemingly relied upon to argue that standards relating to national shrines in general, and to the LNMB in particular, outside of the standards expressly embodied in the AFP Regulations, cannot apply.
To me this is egregious error. The dual nature of the LNMB as a military memorial and a national shrine cannot be denied.
Former President Marcos himself appeared to have recognized the distinction in the discerning manner that he declared sites as military memorials or shrines and national shrines - some he declared solely as military shrines or memorial shrines, while others sites with military significance were declared as national shrines. To illustrate, he declared the Tirad Pass National Park.[111] Fort San Antonio Abad,[112] "Red Beach" (the landing point of General Douglas MacArthur and the liberating forces),[113] and an area of Mt. Samat,[114] as national shrines, while a parcel of land in Cavinti was declared as a memorial shrine.[115]
The best exemplar, perhaps, is the Bantayog ng Kiangan, the site in Ifugao where General Yamashita surrendered to the Allied Forces. On July 9, 1975, former President Marcos issued Proclamation No. 1460, declaring the same as a military shrine under the administration and control of the Military Memorial Division, Department of National Defense.[116] Two years later, on October 17, 1977, he issued Proclamation No. 1682, declaring the previously declared military shrine as a national shrine.[117]
Even PD 1076,[118] issued by former President Marcos on January 26, 1977, that transferred the functions of administration, maintenance and development of national shrines to the PVAO, found its impetus, not on the ground that PVAO should have exclusive jurisdiction over these national shrines, but on the fact that the (then) Department of National Department of Defense had greater capabilities and resources to more effectively administer, maintain and develop the national shrines, and exercised functions more closely related to the significance of the national shrines.[119]
Verily, the argument that the LNMB was initially, primarily, or truly a military memorial to maintain that only the express disqualifications in the AFP Regulations should control in the determination of who may be interred therein, to the exclusion of the provisions of the Constitution, laws and executive issuances, disregards the fact that its status as a national shrine has legal consequences.
The policy of PD 105 with respect to national shrines is reiterated, or more accurately, expanded in the statement of policy in RA 10066[120] that has the objective of protect[ing], preserv[ing], conserv[ing] and promot[ing] the nation's cultural heritage, its property and histories;[121] and RA 10086[122] that states the policy of the State to conserve, promote and popularize the nation's historical and cultural heritage and resources.[123] Even assuming that PD 105 does not apply to the LNMB, there can be no argument that the later expression of legislative will in RA 10066 and RA 10086 accords even fuller protection to national shrines, which includes the LNMB.
The term "national shrine" escapes express legal definition. However, sufficient guidance is found in RA 10066[124] that uses different permutations of the term: "national historical shrines" is a category of cultural property[125] while the term "historical shrines" is defined to refer to historical sites or structures hallowed and revered for their history or association as declared by the National Historical Institute.[126] Thereafter, RA 10066 uses the term "national shrines" in its penal provision[127] which could only mean national historical shrine previously defined. Under this law, the National Historical Institute ("NHI"), the body once given powers of administration over the LNMB, was responsible for significant movable and immovable cultural property that pertains to Philippine history, heroes and the conservation of historical artifacts.[128]
In RA 10086, "national historical shrines" refers to "sites or structures hallowed and revered for their history or association declared as such by the NHCP,"[129] which is the successor of the NHI mentioned in RA 10066. RA 10086 interchangeably uses shrines[130] and national shrines.[131] In both laws, the word "conservation" is defined as "processes and measures of maintaining the cultural significance of a cultural property including, but not limited to, physical, social or legal preservation, restoration, reconstruction, protection, adaptation or any combination thereof," respectively,[132] which is consistent with, and in fact expanded the protection beyond, what may be argued as merely prohibiting physical desecration in PD 105. The clear legislative mandate in RA 10066 and 10086 require conservation, not only of the physical integrity of national shrines as cultural and historical resources, but also of the cultural significance thereof.
These laws operate to accord legal protection to the LNMB so that the standard applicable to it, in particular, esteem and reverence in Proclamation No. 86, and to national shrines, in general, as sacred and hallowed under PD 105, will be upheld and maintained. In other words, if a person who is not worthy of or held in esteem and reverence is sought to be interred in the LNMB, then this would be contrary to the policy to hold LNMB as a sacred and hallowed place - and the Court must step in to preserve and protect LNMB's cultural significance. Relevantly, the NHCP, which has the mandate to discuss and resolve, with finality, issues or conflicts on Philippine history under Section 7 of RA 10086, opposes the interment - another fact completely disregarded by the ponencia.
Verily, the interment of former President Marcos constitutes a violation of the physical, historical and cultural integrity of the LNMB as a national shrine, which the State has the obligation to conserve.
AFP Regulations
Concededly, the LNMB is also a military grave site. The Quartermaster General of the Armed Forces of the Philippines ("AFP") exercises over-all supervision in the implementation of the AFP Regulations concerning burials at the LNMB, specifically, AFP Regulations 161-373 dated April 9, 1986 and the subsequent regulations (AFP Regulations G 161-374 dated March 27, 1998,[133] and AFP Regulations G 161-375 dated September 11, 2000[134] [the AFP Regulations] while the Graves Services Unit ("GSU") is charged with the registration of deceased/graves, allocation of specific section/area, preparation of grave sites, and supervision of burials at the LNMB.[135]
The fact that the LNMB is an active military grave site or cemetery, however, does not diminish, and cannot be used as an excuse to denigrate, its status as a national shrine. The PDs discussed above are laws while the presidential issuances have the force of law. They must be observed in the use of the LNMB.
National Heroes Day is a regular holiday under Act No. 3827 intended for the Filipinos to reflect on the heroism of our countrymen. This Court can take judicial notice of the custom[136] or tradition of the sitting President to celebrate this national holiday by visiting the LNMB, which, if accorded a most reasonable interpretation, can be taken to mean that LNMB does symbolize heroism, or that it is the place where the nation's heroes lie. To argue, therefore, that the word "bayani" in the LNMB is a misnomer, and that no symbolism of heroism should be attached thereto or to those that lie therein as heroes, is, at the very least, contrary to well-established custom.
And this is precisely how the provisions in the AFP Regulations regarding those who are not qualified to be interred in the LNMB should be construed as an acknowledgment that it is a national shrine, and must be treated as a "sacred and hallowed" resting place. Surely, if "personnel who were dishonorably separated/reverted/discharged from service" are to be interred in the LNMB, then LNMB, being a "sacred and hallowed place,"[137] would be desecrated. In the same vein, if "authorized personnel who were convicted by final judgment of an offense involving moral turpitude"[138] are to be interred in the LNMB, then the status of LNMB as a national shrine would be tarnished. Without these disqualifications, the sacredness and hallowedness of the LNMB would be hollow and meaningless.
In other words, it would be, as it is, error, to view or understand the AFP Regulations in a vacuum, independent of or apart from, the policy expressed in Proclamation No. 86 which renamed the Republic Memorial Cemetery as "Libingan ng mga Bayani" (Cemetery of the Heroes[139]) and established therein the standards of "ESTEEM and REVERENCE", Proclamation No. 208 which constituted LNMB as a national shrine, PD 105 which specifically provides the specific policy that all national shrines shall be sacred and hallowed places, RA 10086 that characterizes LNMB as a "national historic shrine" or a historical site or structure hallowed and revered for its history or association.
These laws and presidential proclamations that have the force of law should be read into, and considered part of, the AFP Regulations.
Basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of interpretation in order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in accordance with the legal maxim interpretare et concordare leges legibus est optimus interpretandi modus.[140]
Thus, the disqualifications contemplated under the AFP Regulations should be construed under the aegis of the foregoing laws and executive issuances and their interpretation should not be narrowed by the language used therein. Accordingly, I fully agree with Justice Carpio's position that when Marcos was forcibly taken out of office and removed as a President and a Commander-in-Chief by the sovereign act of the people expressed in the EDSA Revolution - which is an act higher than an act of a military tribunal or of a civilian administrative tribunal - then it can reasonably be said that he was dishonorably separated as a President and dishonorably discharged as a Commander-in-Chief. During the oral arguments, Justice Carpio further clarified that a military personnel, who is a Medal of Valor awardee, retires from the military, joins the government, and while in government, he is dishonorably separated for an offense, then upon his death, he should not be qualified to be interred in the LNMB pursuant to the AFP Regulations themselves because LNMB, being a sacred and hallowed ground, would be besmirched.[141]
In the same manner, the disqualification of those who have been convicted by final judgment of an offense involving moral turpitude should be understood in its normal and ordinary acceptation. In his concurring opinion in Teves v. COMELEC,[142] Justice Brion cites the Black's Law Dictionary definition of moral turpitude as an "act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general," and Bouvier's Law Dictionary as including "everything which is done contrary to justice, honesty, modesty, or good morals." Citing In re Basa[143] and Zari v. Flores,[144] Justice Brion lists, among others, estafa, theft, murder, whether frustrated or attempted, attempted bribery, robbery, direct bribery, embezzlement, extortion, frustrated homicide, falsification of document, fabrication of evidence, evasion of income tax, and rape as crimes involving moral turpitude. The commission by a person of any such crimes when proven should surely disqualify him from being buried in the LNMB as it would blacken the sacredness and hallowedness of the LNMB.
In Republic v. Sandiganbayan,[145] a certiorari petition filed by the Republic of the Philippines (Republic) against the Sandiganbayan, former President Marcos, represented by his heirs: Imelda R. Marcos, Maria Imelda [Imee] Marcos-Manotoc, Ferdinand R. Marcos, Jr. and Irene Marcos-Araneta, and Imelda Romualdez Marcos, which sought to reinstate the Sandiganbayan's earlier decision dated September 19, 2000 that forfeited in favor of the Republic Swiss bank accounts in the aggregate amount of US$658,175,373.60 as of January 31, 2002, claimed by the Marcoses as theirs and held in escrow in the Philippine National Bank (PNB), this Court made this factual finding and ruling:
In the face of undeniable circumstances and the avalanche of documentary evidence against them, respondent Marcoses failed to justify the lawful nature of their acquisition of the said assets. Hence, the Swiss deposits should be considered ill-gotten wealth and forfeited in favor of the State in accordance with Section 6 of RA 1379[.][146] (Emphasis and underscoring supplied)In Marcos, Jr. v. Republic,[147] this Court ruled that all the assets, properties and funds of Arelma, S.A., an entity created by former President Marcos, with an estimated aggregate amount of US$3,369,975.00 as of 1983, which the Marcos claimed as theirs, were declared ill-gotten wealth and forfeited in favor of the Republic.
This Court, in Republic v. Sandiganbayan and Marcos, Jr. v. Republic, noted with approval the Solicitor General's evidence, culled from the Income Tax Returns (ITRs) and Balance Sheets filed by the Marcoses, that showed their total income from 1965 to 1984 in the amount of P16,408,442.00, with 67.71% thereof or P11,109,836.00 allegedly coming from the legal practice of the former President as compared to the official salaries of former President Marcos and Imelda R. Marcos of P2,627,581.00 or 16.01% of the total, and the Solicitor General's findings that:
x x x FM [Ferdinand Marcos] made it appear that he had an extremely profitable legal practice before he became a President (FM being barred by law from practicing his law profession during his entire presidency) and that, incredibly, he was still receiving payments almost 20 years after. The only problem is that in his Balance sheet attached to his 1965 ITR immediately preceding his ascendancy to the presidency he did not show any Receivables from client at all, much less the P10.65-M that he decided to later recognize as income. There are no documents showing any withholding tax certificates. Likewise, there is nothing on record that will show any known Marcos client as he has no known law office. As previously stated, his networth was a mere P120,000.00 in December, 1965. The joint income tax returns of FM and Imelda cannot, therefore, conceal the skeletons of their KLEPTOCRACY.[148] (All caps and its emphasis supplied)This Court also observed the very thorough presentation of the Solicitor General's evidence, viz:
The following presentation very clearly and overwhelmingly show in detail how both respondents clandestinely stashed away the country's wealth to Switzerland and hid the same under layers upon layers of foundations and other corporate entities to prevent its detection. Through their dummies/nominees, fronts or agents who formed those foundations or corporate entities, they opened and maintained numerous bank accounts. x x x[149]Marcos v. Manglapus[150] recognized the plunder of the economy attributed to the Marcoses and their cronies and relied thereon as basis to bar the return of the remains of former President Marcos to the country, viz:
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by tbe plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit of judicial notice. (Emphasis and underscoring supplied)In PCCG v. Peña,[151] this Court recalled the economic havoc engendered by the Marcos regime through the plunder of the country's wealth, viz:
x x x Given the magnitude of the [Marcos] regime's "organized pillage" and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market, it is a matter of sheer necessity to restrict access to the lower courts, which would have tied into knots and made impossible the Commission's gigantic task of recovering the plundered wealth of the nation, whom the past regime in the process had saddled and laid prostrate with a huge $27 billion foreign debt that has since ballooned to $28.5 billion.Indeed, as correctly pointed out by petitioner Latiph, this Court has referred to former President Marcos as a dictator in 20 cases and his rule was characterized as authoritarian in 18 cases.
That is not all. Section 2 of RA 10368 is a recognition by legislative fiat that "summary execution, torture, enforced or involuntary disappearance and other gross human rights violations [were] committed during the regime of former President Ferdinand E. Marcos covering from September 21, 1972 to February 25, 1986."
In two United States cases, the United States District Court of Hawaii[152] awarded US$1.2 Billion in exemplary damages and over US$770 Million in compensatory damages to 10,059 plaintiffs for acts of torture, summary execution, disappearance, arbitrary detention and numerous other atrocities, which the jury found former President Marcos personally liable for, and the US 9th Circuit Court of Appeals,[153] applying the "command responsibility" principle, ruled that the district court properly held former President Marcos liable for human rights abuses which occurred and which he knew about and failed to use his power to prevent.
The NHCP, in its study, "Why Ferdinand Marcos should not be buried at the Libingan ng mga Bayani," which it undertook as part of its mandate to conduct and disseminate historical research and resolve historical controversies, has concluded, among others, that former President Marcos had lied about receiving U.S. medals and that certain actions committed by him as a soldier amounted to "usurpation" and could be characterized as "illegal" and "malicious criminal act." Significantly, the NHCP opposes the proposed burial of former President Marcos.[154]
In the Memorandum filed by petitioners Rosales, et al., they question the basis of the Solicitor General's claim that former President Marcos was a Medal of Valor Awardee. Based on a copy of General Order No. 167 dated October 16, 1958 ("GO 167"), which is Annex "A" to the Rosales Memorandum, former President Marcos obtained not a Medal of Valor but a Medal for Valor. A reading of the contents of GO 167 reveals that the account of the purported Marcos' bravery therein had been debunked in the aforementioned study of the NHCP. There is thus reliable basis to seriously doubt the authenticity of the Medal of Valor award of former President Marcos. As the NHCP concluded:
Mr. Marcos's military record is fraught with myths, factual inconsistencies, and lies. The rule in history is that when a claim is disproven - such as Mr. Marcos's claims about his medals, rank, and guerilla unit - it is simply dismissed. When, moreover, a historical matter is under question or grave doubt, as expressed in the military records about Marcos's actions and character as a soldier, the matter may not be established or taken as fact. A doubtful record also does not serve as sound, unassailable basis of historical recognition of any sort, let alone burial in a site intended, as its name suggests, for heroes.This Court's and the United States courts' pronouncements, the provisions of RA 10368, coupled with the observations of the NHCP, on the perniciousness, gravity and depravity of the acts (e.g., plunder, falsification, human rights abuse, dictatorship, authoritarianism) that former President Marcos perpetrated and allowed to be perpetrated are sufficient to qualify them as acts involving moral turpitude, justifying the application of the provision on disqualification in the AFP Regulations. The overwhelming import of all these simply cannot be cast aside as irrelevant just because former President Marcos was not convicted of such crimes by a criminal court. Certainly, this Court cannot close its eyes to these established facts from which it can be legitimately concluded that former President Marcos was guilty of crimes involving moral turpitude, and would have been convicted thereof were it not for his flight and his subsequent death. Unfortunately, the ponencia is content to brush aside these determinations on the ground that without a conviction these do not amount to a disqualification provided in the AFP Regulations.
Just as the LNMB should be looked at as one integral whole, as one and indivisible national shrine, despite the presence of a military grave site within its confines, former President Marcos should be viewed and judged in his totality. His soldier persona cannot be separated from his private citizen cum former President persona, and vice versa, unless by some miracle one can be excised from the other. Either the entire remains of former President Marcos are allowed to be buried in the LNMB or none of his parts. Whether as a soldier or as a President, former President Marcos does not deserve a resting place together with the heroes at the LNMB.
In the end, the argument that burying former President Marcos in the LNMB does not make him a hero disregards the status of the LNMB as a national shrine. And, even if the standards set forth in the AFP Regulations were to be followed, former President Marcos would still be disqualified to be interred in the LNMB.
Thus, recalling the earlier discussion on the second requirement of the President's power to reserve, it is now clear that the interment violates the specific public purpose, i.e., national shrine purposes/policies, for which the LNMB was reserved.
To recapitulate, the order to inter former President Marcos in the LNMB is clearly contrary to law (PD 105, RA 10066, RA 10086, and the presidential issuances abovementioned), the AFP Regulations, and the public policy that the said laws, executive issuances, and regulations espouse and advance. In light of the foregoing violations, it is also clear that the interment cannot be justified by the exercise of the President's power of control and duty to faithfully execute laws.
The 1987 Constitution
The ponencia disposes of petitioners' invocation of the provisions of Article II of the Constitution by holding that these are not self-executing, citing Tañada v. Angara. However, it fails to recognize at the same time that, since then, several laws have been passed that "enabled" Article II, Section 11, among which are RA 10353[155] and RA 10368. In this respect, the applicability of these laws, especially RA 10368, as basis to oppose the proposed interment will be addressed below.
The applicable treaties and international law principles stand to be violated with the burial of former President Marcos in the LNMB.
Article II, Section 2 of the 1987 Constitution provides that the Philippines "adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations". One of these principles - as recognized by this Court in a long line of decisions[156] - is the rule of pacta sunt servanda in Article 26[157] of the 1969 Vienna Convention on the Law of Treaties[158] ("VCLT"), or the performance in good faith of a State's treaty obligations. Borrowing the words of this Court in Agustin v. Edu,[159] "[i]t is not for this country to repudiate a commitment to which it had pledged its word. The concept of pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality."[160]
The Philippines became signatory to the Universal Declaration on Human Rights ("UDHR"),[161] and State-party, without reservations, to the International Covenant on Civil and Political Rights ("ICCPR")[162] on October 23, 1966, the Rome Statute[163] on August 30, 2011, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") on June 18, 1986.[164]
The UDHR is an international document recognizing inalienable human rights, which eventually led to the creation of several legally-binding treaties, such as the ICCPR and International Covenant on Economic, Social and Cultural Rights ("ICESCR").[165] The Philippines signed the UDHR because of its recognition of the rights and values enumerated in the UDHR, and it is that same recognition that led the Philippines to sign and ratify both the ICCPR and the ICESCR.[166]
Article VII, Section 21[167] and Article II, Section 2 of the Constitution[168] adopt the doctrine of transformation. Treaties, which have been duly entered and ratified pursuant to the Constitution, must be transformed into municipal law so that they can be applied to domestic conflicts.[169] Once so transformed, treaty obligations enjoy the same legal force and effect as domestic statutes.[170]
The CAT was transformed by virtue ofRepublic Act 9745 or the "AntiTorture Act of 2009".[171] Subsequently, echoing its commitment to the UDHR, the Philippines transformed its obligations under the ICCPR and the CAT, on July 23, 2012, with the enactment of Republic Act No. 10368. The enactment of RA 10368 is, in truth, in fulfillment of the country's duty under Article 2(2) of the ICCPR to "take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant."
Section 2 of RA 10368, echoing the State's policy enshrined in Article II, Section 11 of the Constitution on the value of the dignity of every human person and the guarantee of full respect for human rights, is an acknowledgment of the Philippines' obligations as State-party to the UDHR, ICCPR, and the CAT.
Particularly, in enacting RA 10368, the Philippines categorically recognized its obligation to: (1) "give effect to the rights recognized [in the UDHR, ICCPR and the CAT]"[172] (2) ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity; (3) "recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986"; and (4) "restore the victims' honor and dignity."
More importantly, the Philippines acknowledged, through RA 10368, its "moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime" and to "acknowledge the sufferings and damages inflicted upon persons whose properties or businesses were forcibly taken over, sequestered or used, or those whose professions were damaged and/or impaired, or those whose freedom of movement was restricted, and/or such other victims of the violations of the Bill of Rights."[173]
The obligations listed in Section 2 of RA 10368 are not to be read in a vacuum. Neither should they be read as bounded by the four comers of that law.
Considering that the enactment of RA 10368 was precisely to "give effect"[174] to the rights of human rights victims recognized in the ICCPR and the CAT, which the Philippines ratified without reservations,[175] then RA 10368 must be understood and interpreted within the broader context of the treaties which it effectuates. Consistent with this, I concur with the Chief Justice's discussion on the proper interpretation of the rights of HRVVs and the corollary state obligations under RA 10368.
It is very significant to note that RA 10368, Section 2 which provides: "x x x the Universal Declaration of Human Rights, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity" is an almost verbatim reproduction of Article 2(3) of the ICCPR,[176] which provides:
3. Each State Party to the present Covenant undertakes:In addition, in interpreting the State's obligations relative to human rights violations, Article 38(1)(d)[177] of the Statute of the International Court of Justice ("ICJ Statute")[178] specifically recognizes "judicial decisions and the teachings of the most highly qualified publicists ("MHQPs") of the various nations, as subsidiary means for the determination of rules of law." In this regard, it is significant to note that as original member of the United Nations ("UN"), the Philippines is ipso facto State-party to the ICJ Statute in accordance with Article 93, Chapter XIV of the UN Charter[179]. In other words, the Court can rely on what are called subsidiary sources of international law such as judicial decisions and teachings of MHQPs.
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity x x x.
Finally, decisions of various tribunals[180] authorize the use of the text of the relevant convention as an aid to interpretation even if the statute does not incorporate the convention or even refer to it.
Given the foregoing, which are the parameters that are considered in understanding and interpreting RA 10368, the question before the Court is how to determine whether petitioners, who claim to be victims of human rights violations under the Marcos martial law regime,[181] can rightfully be considered HRVVs.
In an attempt to strip MLHRV petitioners of their characterization as HRVVs and to dilute their rights as such, the Solicitor General argues that the lack of specific mention of "state agents" in Sec. 3 of RA 10368 means that former President Marcos could not be held liable as Commander-in-Chief for human rights abuses suffered by them.[182] This argument, however, fails to consider the 2001 Articles on Responsibility of States for Internationally Wrongful Acts or the Articles on State Responsibility ("ASR").[183]
Contrary to the Solicitor General's claims, the absence of the words "state agents" in RA 10368 does not, by itself, remove the basis for holding former President Marcos liable as Commander-in-Chief of the armed forces for the crimes committed during his martial law regime. To begin with, the principle of "state agents" would only be relevant for purposes of attributing responsibility to a State, as reflected in Article 4 of the ASR, viz:
Article 4. Conduct of organs of a State.In these petitions, responsibility for the human rights violations committed during the martial law regime is anchored not on the attribution to the State through state agents, but on attribution to former President Marcos, as an individual and Commander-in-Chief.
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status m accordance with the internal law of the State.
It is also incorrect to argue that the application of "command responsibility" to former President Marcos would violate the constitutional prohibition on bills of attainder and ex post facto laws.[184]
In Hilao v. Estate of Ferdinand Marcos,[185] the "command responsibility" principle was applied to hold former President Marcos liable for human rights abuses during his martial law regime, which occurred and which he knew about and failed to use his power to prevent. In In Re: Estate of Marcos,[186] it was ruled that the estate of former President Marcos was not immune even if the acts of torture, execution, and disappearance were clearly acts outside of his authority as President and were not taken within any official mandate.
While the foregoing cases were decided by United States of America courts, the rulings therein are binding in this jurisdiction by virtue of the act of state doctrine. The act of state doctrine is the "recognition by a country of the legal and physical consequences of all acts of state in other countries,"[187] and "a recognition of the effects of sovereignty, the attributes and prerogatives of sovereign power."[188] In Presidential Commission on Good Government v. Sandiganbayan and Officeco Holdings N.V.,[189] this Court had occasion to rule that the act of state doctrine prohibits States from sitting in judgment on the acts of the government of another State done within its territory.[190] It requires the forum court to exercise restraint in the adjudication of disputes by foreign courts performed within its jurisdiction.[191]
Simply put, convicting former President Marcos for whatever past crimes he might have committed would not only be legally untenable but also absurd; however, the Court must recognize what has already been previously and legally determined and settled.
In light of the foregoing, and given the fact that MLHRV petitioners, who by their personal accounts (narrated during the Oral Arguments held on August 31, 2016)[192] and as alleged under oath in their respective petitions, have suffered human rights violations during martial law, there is no legal obstacle in recognizing them as HRVVs as this is defined under RA 10368. As HRVVs, they have several rights under international law, which the State has the duty to protect.
As culled from the primary sources of international law (the ICCPR and the CAT), and the subsidiary sources of international law-namely, the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law ("UN Guidelines") - as well as RA 10368, HRVVs are entitled to the following rights: (1) the non-derogable right to an effective remedy; (2) the right against re-traumatization; (3) the right to truth and the State's corollary duty to preserve memory; and (4) the right to reparation.
1. The right to an effective remedy
Prescinding from the various laws that have been enacted by the Philippine legislature to promote and protect human rights[193] and the availability of judicial remedies,[194] it must be clarified that the Philippines' obligations do not cease by the mere enactment of laws or the availability of judicial remedies. Article 2 of the ICCPR provides:
Article 2 (3). Each State Party to the present Covenant undertakes:In turn, General Comment No. 31 to the ICCPR states that the purpose of Article 2 will be defeated if there is no concurrent obligation on the part of the State-party to take measures to prevent a recurrence of a violation of the ICCPR.[195] In other words, when RA 10368 recognized the obligation of the Philippines to provide an effective remedy to HRVVs, this can only be understood as the Philippines also having the concurrent obligation to prevent a recurrence of the violation of the ICCPR.
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
This is not the first time this Court has been asked to recognize the obligatory nature of the ICCPR and the General Comments interpreting their provisions. In Echegaray v. Secretary of Justice,[196] the Court recognized the binding nature of the ICCPR and relied on General Comment 6 (to Article 6 of the ICCPR) to resolve the issues raised by petitioner Echegaray with respect to the death penalty allegedly violating the Philippines' international obligations. In Razon, Jr. v. Tagitis[197] the Court relied upon the U.N. Human Rights Committee ("UNHRC")'s interpretation of Article 2 of the ICCPR on the right to an effective domestic remedy. According to the UNHRC, the act of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may also amount to a crime against humanity.[198]
The obligation to provide effective remedy, and concurrently, to prevent a recurrence, by its nature, is not discharged by the mere passage of laws. This obligation, by necessity, is a continuing one.
2. The right to he protected from re-traumatization
Petitioner Latiph claims that the burial of former President Marcos in "a state funeral as a hero and extending to him full military honors"[199] violates the Philippines' obligations under the UN Guidelines.[200] In response, the Solicitor General merely stated that the premise of these alleged violations is "flawed"[201], in that there is no causal relation between the Philippines' compliance with its international law obligations and former President Marcos burial at the LNMB.
First of all, the claim that the Philippines is not bound by the UN Guidelines because they are merely "guidelines" and "not treaties"[202] or "sources of international law"[203] is inaccurate. While it is true that a treaty only binds States parties to it and generally does not create obligations for States not parties to it pursuant to the principle of pacta tertiis nec nocent nec prosunt,[204] the rule does not operate to preclude the application of the UN Guidelines to the Philippines. This is because the UN Guidelines do not create new international or domestic legal obligations, but merely identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law.[205]
Quite the contrary, and as earlier adverted to,[206] the UN Guidelines constitute subsidiary sources of International Law under Article 38(1)(d) of the ICJ Statute. Principle 10 of the UN Guidelines, pertaining to the treatment of victims, provides:
10. Victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her retraumatization in the course of legal and administrative procedures designed to provide justice and reparation.Significantly, Principle 10 is mirrored by Article II, Section 11 of the Constitution and Section 2 of RA 10368, stating that the "State values the dignity of every human, person and guarantees full respect for human rights."
Based on the narrations of the HRVV petitioners, it is the intended interment that would reopen wounds and re-traumatize them. In this regard, international law has recognized that impunity must be considered as a continued and ongoing form oftorture.[207] To bury the architect of martial law in the LNMB would be an act of impunity.
3. The right to truth and the States' duty to preserve memory[208]
Under Principle 2 of the UN Principles on Impunity[209], the right to truth pertains to the right to know about past events concerning the violations and about the circumstances and reasons that led to the perpetration of those crimes.
The duty to preserve memory, in Principle 3 of the UN Principles on Impunity, requires that people's knowledge of the history of its oppression be part of its heritage and as such, must be ensured by appropriate measures in fulfilment of the State's duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
The burial of former President Marcos in the LNMB which, as already explained, is not a mere cemetery but a memorial for heroes, will certainly not further or advance the Philippines' obligation to accord HRVVs their right to truth and preserve memory. Indeed, such an act would blur the real role of former President Marcos in the country's history and in the human rights abuses that the HRVVs suffered under his martial law regime. This is the causal connection between the proposed interment and the violation of the HRVV's right to truth, and the Philippines' duty to preserve memory.
4. The right to specific forms of reparation for harm suffered under Principles 19, 21, 22, 23 of the UN Guidelines
The Solicitor General claims that the "Philippines had already taken legislative and other measures to give effect to human rights, and provided not only adequate remedies against human rights violations and procedures for the investigation of these violations and for the prosecution of the perpetrators thereof and the penalties therefor, but also reparation to victims."[210] He further claims that RA 10368 has no bearing on the powers of the President and his subordinates under the Constitution and E.O. 292 and that HRVVs can be very assured that the interment of the remains of the former President Marcos at the Libingan will neither prevent them from claiming any entitlements to reparations under RA 10368 nor dilute their claims, moral or legal, monetary or non-monetary, thereunder.[211]
In other words, the Solicitor General is saying that the existence of severallaws[212] and the judicial decisions describing former President Marcos as a plunderer and human rights violator already "restored the dignities and reputation of the victims of the regime"[213] and constitute sufficient reparation to the HRVVs.
I cannot agree. The UN Guidelines, as cited in the CHR's Memorandum, and as explained by CHR Chairman Chito Gascon during the Oral Arguments, provide five general forms of reparation: (1) restitution, (2) compensation, (3) rehabilitation, (4) satisfaction and (5) guarantees of non repetition.
Restitution requires that the victim be restored to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred.
Compensation is provided for any economically assessable damage resulting from gross violations of human rights. In this regard, Article 14 of the CAT requires State-parties to ensure in its legal system that "the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full [a] rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation."
Rehabilitation includes medical and psychological care as well as legal and social services. There are a number of definitions of rehabilitation.[214] General Comment 3 to Article 14 of the CAT suggests that rehabilitation "should be holistic and include medical and psychological care as well as legal and social services." Rehabilitation for victims should aim to restore, as far as possible, their independence, physical, mental, social and vocational ability; and full inclusion and participation in society.[215]
Satisfaction includes, among others: (i) the "verification of the facts and full and public disclosure of the truth to assist the victim or prevent the occurrence of further violations," (ii) an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; (iii) a public apology, (iv) commemorations and tributes to victims, and (v) the inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.
Guarantees of non-repetition pertain to measures that may be taken which will contribute to the prevention of the reoccurrence of the human rights violations. This includes "strengthening the independence of the judiciary."
Notably, the Human Rights Committee, in General Comment No. 2 (1992) and General Comment No. 31 (2004)[216] defined rehabilitation as a form of reparation. In particular, General Comment No. 20 states that amnesties are unacceptable, among other reasons, because they would "deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible."
The arguments of the Solicitor General are thus belied, and shown to be erroneous, by the breadth and extensiveness of the above-described forms of reparation.
To summarize, there is sufficient basis to rule that the burial of former President Marcos in the LNMB will violate certain international law principles and obligations, which the Philippines has adopted and must abide by, and RA 10368 which transformed the principle and State policy expressed in Article II, Section 11 of the Constitution which states: "The State values the dignity of every human person and guarantees full respect for human rights". In this sense, therefore, a violation of RA 10368 is tantamount to a violation of Article II, Section 11 of the Constitution.
For all the reasons stated, the directive to inter former President Marcos in the LNMB constitutes grave abuse of discretion amounting to lack or excess of jurisdiction for being in violation of: (1) Presidential Proclamations 86 and 208, (2) PD 105, (3) RA 10066, (4) RA 10086, (5) AFP Regulations G 161-375 and (6) RA 10368, which is tantamount to a violation of Article II, Section 11 of the Constitution.
When all is said and done, when the cortege led by pallbearers has reached the plot in the LNMB dedicated to the newest "hero" of the land and the coffin containing what is claimed to be the remains of former President Marcos has been finally buried in the ground or entombed above ground, this DISSENT, along with the dissents of the Chief Justice and Justices Carpio and Leonen, will be a fitting eulogy to the slaying of the might of judicial power envisioned in the 1987 Freedom Constitution by the unbridled exercise of presidential prerogative using vox populi as the convenient excuse.
Above all, this is a tribute to the fallen, desaparecidos, tortured, abused, incarcerated and victimized so that the dictator could perpetuate his martial rule, and to those who fought to attain the freedom which led to the very Constitution from which this Court derives the power to make the decision that it reached today - that their sacrifices, sufferings and struggles in the name of democracy would be duly acknowledged and immortalized.
"For the survivor who chooses to testify, it is clear: his duty is to bear witness for the dead and for the living. He has no right to deprive future generations of a past that belongs to our collective memory. To forget would be not only dangerous but offensive; to forget the dead would be akin to killing them a second time."For these reasons, I vote to grant the petitions.- Elie Wiesel, Night[217]
[1] Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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.
[2] Lagman Petition, p. 3, par. 5.
[3] G.R. 205728, January 21, 2015, 747 SCRA 1.
[4] 258 Phil. 479 (1989).
[5] 392 Phil. 618 (2000).
[6] 406 Phil. 1 (2001).
[7] 460 Phil. 830 (2003).
[8] OSG Consolidated Comment, I.A., p. 24.
[9] Supra, par. 55, p. 24.
[10] OSG Consolidated Comment, par. 51, p. 24; Public Respondent's Memorandum, par. 55, p. 27.
[11] 623 Phil. 63 (2009).
[12] 721 Phil. 416 (2013).
[13] 103 Phil. 1051 (1957).
[14] Supra note 7, at 910.
[15] Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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.
[16] Supra note 7, at 911-912.
[17] Id.
[18] Supra note 13.
[19] Id. at 1066-1067 (emphasis supplied).
[20] OSG Consolidated Comment, par. 60. p. 25; Public Respondents' Memorandum, par. 62, p. 29.
[21] OSG Consolidated Comment, par. 61, p. 26; Public Respondents' Memorandum, par. 63, p. 29.
[22] OSG Consolidated Comment, par. 3, p. 5.
[23] Supra, Prefatory Statement, pp. 3-5.
[24] Francisco v. The House of Representatives, supra note 7, at 889-890.
[25] Belgica v. Ochoa, supra note 12, at 518-519.
[26] Id. at 519, citing Joya v. Presidential Commission on Good Government, 296-A Phil. 595, 602 (1993).
[27] Id. at 519-520.
[28] Gov't now preparing for Marcos burial at Libingan, available at <http://www.rappler.com/nation/142266-philippines-malacanang-preparations-ferdinand-marcos-burial-libingan-ng-mga-bavani>
[29] Araullo v. Aquino, 737 Phil. 457, 535 (2014), citing Black's Law Dictionary, 941 (6th Ed. 1991).
[30] Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, etc. April 8, 2014, 721 SCRA 146, citing Anak Mindanao Party-list Group v. Ermita, 558 Phil. 338, 350 (2007).
[31] Galicto v. Aquino, 683 Phil. 141, 170 (2012).
[32] 450 Phil. 744, 803 (2003).
[33] Francisco v. The House of Representatives, supra note 7, at 895.
[34] Osmena III v. PSALM, G.R. No. 212686, September 28, 2015, p. 9.
[35] Chavez v. JBC, 691 Phil. 173, 196 (2012).
[36] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 589 Phil. 387, 486 (2008).
[37] See Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), id. at 487.
[38] David v. Macapagal-Arroyo, 522 Phil. 705, 763 (2006).
[39] Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 442 (2010).
[40] Jardeleza v. Sereno, G.R. No. 213181, August 19, 2014, 733 SCRA 279, 328, citing Araullo v. Aquino, supra at 531; Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015.
[41] Supra note 29.
[42] Id. at 531.
[43] Supra note 3.
[44] 693 Phil. 399, 412 (2012).
[45] Supra note 3, at 42-43.
[46] The Diocese of Bacolod v. COMELEC, id. at 44-49.
[47] G.R. No. l12497, August 4, 1994, 235 SCRA 135.
[48] Id. at 140.
[49] Palace: Hero's burial for Marcos to proceed unless there's a TRO, available at <http://www.gmanetwork.com/news/story/577948/news/nation/palace-hero-s-burial-for-marcos-toproceed-unless-there-s-a-tro>
[50] Palace clueless on who will pay for Marcos funeral, available at <http://manilastandardtoday.com/news/-main-stories/top-stories/213621/palace-clueless-on-who-will-pay-for-marcos-funeral.html>
[51] Duterte confirms Marcos burial at the Libingan ng mga Bayani, available at <http://cnnphilippines.com/news/2016/08/07/marcos-libingan-ng-mga-bayani-burial.html>
[52] The Diocese of Bacolod v. COMELEC, supra note 3, at 59-60, citing Spouses Chua v. Ang, 614 Phil. 416, 425-426 (2009).
[53] 654 Phil. 755, 761-762 (2011), citing Republic v. Lacap, G.R. No. 158253, March 2, 2007.
[54] Duterte asked to reconsider Marcos burial at Libingan ng mga Bayani, available at <http://www.gmanetwork.com/news/story/568973/news/nation/duterte-asked-to-reconsider-marcosburial-at-libingan-ng-mga-bayani>
[55] See Perez v. Court of Appeals, 516 Phil. 204, 209 (2006); Dueñas, Jr. v. House of Representative Electoral Tribunal, 610 Phil. 730, 760 (2009).
[56] See Spouses Balangauan v. CA, et al., 584 Phil. 183 (2008); Banal III v. Panganiban, et al., 511 Phil. 605 (2005); Republic of the Philippines v. COCOFED, 423 Phil. 735 (2001).
[57] OSG Comment 131-138, pp. 42-44.
[58] OSG Comment 131-138, pp. 42-44.
[59] Under Section 4, Chapter II of Book III, Title I of the Revised Administrative Code, a proclamation is an act of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend.
[60] CA 141, Sec. 64(d) and (e).
[61] CA 141, Sec. 86 to 88.
[62] 123 Phil. 698 (1966).
[63] 512 Phil. 644, 646 (2005).
[64] "The matter to be considered then is whether there is any law that directs or authorizes the President to release a disposable public land from a reservation previously made" (Republic v. Octobre, supra note 62, at 701).
[65] TSN, August 31, 2016, pp. 55-63.
[66] TSN, September 7, 2016, pp. 139-141.
[67] There has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use". Under the more current concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project (Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SCRA 461 [1987]). (Province of Camarines Sur v. Court of Appeals, G.R. No. 103125, May 17, 1993).
[68] 110 Phil. 331 (1960).
[69] Id. at 340. Emphasis and underscoring supplied.
[70] TSN, September 7, 2016, pp. 39-40.
[71] Supra note 62, at 700-701.
[72] Italics supplied.
[73] Ham v. Bachrach Motor Co., Inc., 109 Phil. 949-957 (1960).
[74] 597 Phil. 649, 661 (2009).
[75] Biraogo v. Philippine Truth Commission of 2010, supra note 39, at 538-539.
[76] OSG Memorandum or Consolidated Comment.
[77] 345 Phil. 961 (1997).
[78] Id. at 979.
[79] 466 Phil. 482 (2004).
[80] Id. at 518.
[81] Marcos v. Manglapus, supra note 4; Sanlakas v. Reyes, supra note 79; and Integrated Bar of the Philippines v. Zamora, supra note 5.
[82] Supra note 4.
[83] Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, and Imee Manotoc.
[84] Marcos v. Manglapus, supra note 4, at 506-508.
[85] Supra note 5.
[86] Integrated Bar of the Philippines v. Zamora, supra note 5, at 638-645.
[87] Not to be confused with a "truly political question" pursuant to the Francisco v. HRET formulation.
[88] Rule 129, Section 1 provides that judicial notice is mandatory with respect to "the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions," while Section 2 provides that judicial notice is discretionary with respect to matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.
[89] TSN, September 7, 2016, pp. 50-51.
[90] Ferdinand "Bongbong" R. Marcos, Jr.
[91] Representative Imelda R. Marcos.
[92] Ilocos Norte Governor Imee Marcos.
[93] In Re: Estate of Marcos Human Rights Litigation, 910 F. Supp. 1460 (D. Haw. 1995), upheld in Hilao v. Marcos, 103. F.3d 762 (9th Cir. 1996).
[94] What Is Forgiveness?, available at
[95] Id.
[96] Id.
[97] Public Respondents' Memorandum, p. 4.
[98] Id.
[99] Id.
[100] Marcos v. Manglapus, supra note 4, at 507-508.
[101] "Psyche", available at <http://www.merriam-webster.com/dictionary/psyche>
[102] http://www.dictionary.com/browse/psyche, last accessed on October 17, 2016.
[103] TSN, September 7, 2016, pp. 83-87.
[104] Despite tourism loss, Batac mayor backs hero's burial for Marcos, available at <http://www.rappler.com/nation/145804-batac-mayor-her-burial-marcos>
[105] Sec. 1, RA 289.
[106] Sec. 2., id.
[107] P.D. No. 105, 3rd Whereas Clause.
[108] Presidential Decree No. 1682.
[109] R.A. 10796 (2016).
[110] http://www.gmanetwork.com/news/story/579292/news/nation/duterte-leads-national-heroes-day-rites; http://news.abs-cbn.com/news/08/29/16/look-duterte-leads-national-heroes-day-rites, last accessed on October 17, 2016.
[111] July 23, 1968 (Declaring the Tirad Pass National Park as Tirad Pass National Shrine, Proclamation No. 433, [1968]).
[112] May 27, 1967 (Reserving for National Shrine Purposes a Certain Parcel of Land of the Private Domain Situated in the District of Malate, City of Manila, Proclamation No. 207, [1967]).
[113] Reserving Certain Parcel of Land of the Private Domain in Baras, Palo, Leyte for the Province of Leyte, PROCLAMATION NO. 1272, [1974].
[114] April 18, 1966 (Excluding from the Operation of Proclamation No. 24, s. 1945, Proclamation No. 25, [1966]).
[115] March 27, 1973 (Reserving for Memorial Shrine for the War Dead a Certain Parcel of Land of the Public Domain in Cavinti, Laguna, PROCLAMATION NO. 1123, [1973]).
[116] Declaring the "Bantayog sa Kiangan" as a Military Shrine, Proclamation No. 1460, [1975].
[117] Declaring the Kiangan War Memorial Shrine in Linda, Kiangan, Ifugao as a National Shrine, Proclamation No. 1682, [1977].
[118] Amending Part XII (Education) and Part XIX (National Security) of the Integrated Reorganization Plan, Presidential Decree No. 1076, [1977].
[119] Second and Third Whereas Clauses of PD 1076.
[120] National Cultural Heritage Act of 2009, Republic Act No. 10066, March 24, 2010.
[121] Article 2(a) of RA 10066.
[122] Strengthening Peoples' Nationalism Through Philippine History Act, Republic Act No. 10086, May 12, 2010.
[123] Section 2, RA 10086.
[124] National Cultural Heritage Act of 2009, Republic Act No. 10066, March 24, 2010.
[125] Section 4, RA 10066 uses the term "national historical shrine".
[126] Section 3, RA 10066.
[127] Section 48, id.
[128] Section 31, id.
[129] Section 3(n), RA 10086.
[130] Sections 7(d) and (n), id.
[131] Sections 3(b), 7(e) and 20, id.
[132] Section 3(i) in RA 10066 and Section 3(c), id.
[133] Annex 6, Consolidated Comment.
[134] Annex 7, Consolidated Comment.
[135] AFP Regulations G 161-375.
[136] The Requisites of Custom are (1) a number of acts; (2) uniformity: (3) juridical intent; (4) lapse of time; and not contrary to law. 1 Manresa p. 76.
[137] AFP Regulations G 161-374; AFP Regulations G 161-375. Emphasis supplied.
[138] Id; id. Emphasis supplied.
[139] http://corregidorisland.com/bayani/libingan.html.
[140] Pabillo v. COMELEC, G.R. Nos. 216098 & 216562, April 21, 2015, 756 SCRA 606, 672.
[141] TSN, August 31, 2016, p. 55.
[142] 604 Phil. 717, 735-742 (2009).
[143] 41 Phil. 275 (1920).
[144] 94 SCRA 317.
[145] 453 Phil. 1059 (2003).
[146] Id. at 1149.
[147] 686 Phil. 980 (2012).
[148] Republic v. Sandiganbayan, supra note 146, at 1091; Marcos, Jr. v. Republic, id. at 1003-1004.
[149] Republic v. Sandiganbayan, id. at 1093.
[150] Supra note 4, at 509.
[151] 243 Phil. 93, 107 (1988).
[152] In Re Estate of Marcos Human Rights Litigation, 910 F. Supp. 1460 (D. Haw. 1995).
[153] Hilao v. Marcos, 103 F.3rd 762 (9th Cir. 1996).
[154] The NHCP is the independent government entity that has the mandate to resolve, with finality, issues or conflicts on Philippine history.
[155] "Anti-Enforced or Involuntary Disappearance Act of 2012".
[156] Government of Hongkong Special Administrative Region v. Muñoz, G.R. No. 207342, August 16, 2016; Commissioner of Internal Revenue v. Pilipinas Shell Petroleum Corp., 727 Phil. 506 (2014); Bayan v. Zamora, 396 Phil. 623 (2000); Magallona v. Ermita, G.R. No. 187167, August 16, 2011; Bayan Muna v. Romulo, 656 Phil. 246 (2011); CBK Power Company Ltd. v. Commissioner of Internal Revenue, G.R. Nos. 193383-84 & 193407-08, January 14, 2015, 746 SCRA 93; Abaya v. Ebdane, Jr., 544 Phil. 645 (2007); Department of Budget and Management Procurement Service (DBM-PS) v. Kolonwel Trading, 551 Phil. 1030 (2007); Deutsche Bank AG v. Commissioner of Internal Revenue, 716 Phil. 676 (2013); Secretary of Justice v. Lantion, 379 Phil. 165 (2000); La Chemise Lacoste, S.A. v. Fernandez, 214 Phil. 332 (1984); Tañada v. Angara, 338 Phil. 546, 592 (1997); Pharmaceutical and Health Care Association of the Phils. v. Duque III, 561 Phil. 386 (2007).
[157] "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."
[158] 1155 U.N.T.S. 331, 8 I.L.M. 679, opened for signature May 23, 1969, entered into force Jan. 27, 1980.
[159] G.R. No. L-49112 February 2, 1979.
[160] Agustin v. Edu, G.R. No. L-49112 February 2, 1979.
[161] Adopted by the United Nations General Assembly on December 10, 1948; see Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700 (Dissenting Opinion, March 8, 2016.
[162] 999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967); the Philippines signed the ICCPR on December 19, 1966 and ratified the same on October 23, 1986.
[163] A/CONF.183/9 of 17 July 1998.
[164] The Philippines ratified the CAT on June 26, 1987.
[165] The Philippines signed the ICESCR on December 19, 1966 and ratified the same on June 07, 1974; see: J. von Bernstorff. "The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law" 19 (5) European Journal of International Law 903, 913-914 (2008), cited in Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700 (Dissenting Opinion), March 8, 2016.
[166] See: Secretary of National Defense v. Manalo, 589 Phil. 1, 50-51 (2008) and Separate Opinion of C.J. Puno in Republic v. Sandiganbayan, in Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700 (Dissenting Opinion), March 8, 2016.
[167] Art. VII, Sec. 21. "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate."
[168] Art. II, Sec. 2. "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."
[169] Pharmaceutical and Health Care Association of the Phils. v. Duque III, supra note 156; Commissioner of Customs v. Eastern Sea Trading, No. L-14279, October 31, 1961, 3 SCRA 351, 356 cited in Intellectual Property Association of the Philippines v. Ochoa, G.R. No. 204605, July 19, 2016.
[170] Secretary of Justice v. Ralph Lantion, supra note 156.
[171] AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING PENALTIES THEREFOR, November 10, 2009.
[172] R.A. 10368, Sec. 2. "x x x By virtue of Section 2 of Article II of the Constitution adopting generally accepted principles of international law as part of the law of the land, the Philippines adheres to international human rights laws and conventions, the Universal Declaration of Human Rights, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity. x x x"
[173] R.A. 10368, Sec. 2.
[174] R.A. 10368, Sec. 2. "x x x By virtue of Section 2 of Article II of the Constitution adopting generally accepted principles of international law as part of the law of the land, the Philippines adheres to international human rights laws and conventions, the Universal Declaration of Human Rights, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment which imposes on each State party the obligation to enact domestic legislation to give effect to the rights recognized therein and to ensure that any person whose rights or freedoms have been violated shall have an effective remedy, even if the violation is committed by persons acting in an official capacity. In fact, the right to a remedy is itself guaranteed under existing human rights treaties and/or customary international law, being peremptory in character (jus cogens) and as such has been recognized as non-derogable.
Consistent with the foregoing, it is hereby declared the policy of the State to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986 and restore the victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime. x x x"
[175] On May 23, 1969 - the very same day the Convention was opened for signature - the Philippines signed the 1969 Vienna Convention on the Law ofTreaties ("VCLT") (1155 U.N.T.S. 331, 8 I.L.M 679, opened for signature May 23, 1969, entered into force Jan. 27, 1980) and ratified the same on November 15, 1972. Enshrined in Article 26 of the VCLT is the principle of pacta sunt servanda, which requires that "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith" (1969 VCLT 1155 U.N.T.S. 331, 8 I.L.M 679, art. 26.).
Further, pursuant to the principle of pacta tertiis nec nocent nec prosunt (1969 VCLT, art. 34. "A treaty does not create either obligations or rights for a third State without its consent"; see in Brownlie, Principles of Public International Law 598, 6th ed., 2003) under Article 34 of the VCLT, treaties bind only States parties to it (Id.). Consequently, in cases where a State does not want certain provisions of a treaty to apply to it, such exception must be expressed by the State by means of a reservation, done at the time the State ratifies the treaty (Art. 2(1)(d), 1969 VCLT).
A reservation is a unilateral statement made by a State whereby the State "purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State" (Art. 2(1)(d), 1969 VCLT). In addition, the reservation must be made "when signing, ratifying, accepting, approving, or acceding to a treaty" (Id). In effect, a reservation removes the obligation referred to by the State from its legal obligations arising from that treaty (Rhona K.M. Smith, Texts and Materials on International Human Rights 67 (2013)). No such reservations have been made by the Philippines when it to the ICCPR, the Rome Statute, and the CAT.
[176] Sec. 2.
[177] Art. 38(1)(d). "[s]ubject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law".
[178] 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 AJIL Supp. 215 (1945).
[179] Article 93 (1). All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.
[180] Ian Brownlie, Principles of Public International Law 45 (6th ed., 2003), citing Salomon v. Commissioners of Customs and Excise [1967], 2 QB 116, CA, at 141 (per Lord Denning, MR), 143 (per Dip1ock, LJ); ILR 41; Post Office v. Estuary Radio [1967] 1 WLR 1396, CA, at 1404; [1968] 2 QB 740 at 757; Cococraft Ltd. V. Pan American Airways Inc. [1969] 1 QB 616; [1968] 3 WLR 1273, CA at 1281.
[181] Hereinafter referred to as "MLHRV".
[182] OSG Memorandum, par. 245, p. 93.
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