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Marcos burial decision

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Posted at Nov 08 2016 03:50 PM | Updated as of Nov 08 2016 10:44 PM

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In the matter of G.R. No. 225973 (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez,
et al.), G.R. No. 225984 (Rep. Edcel C. Lagman, Families of Victims of Involuntary Disappearance
(FIND), et al. v. Executive Secretary Salvador C. Medialdea, et al.), G.R. No. 226097 (Loretta Ann
Pargas-Rosales, et al. v. Executive Secretary Salvador C. Medialdea, et al.), and G.R. No. 226116
(Heherson T. Alvarez, et al. v. Executive Secretary Salvador C. Medialdea, et al.), G.R. No. 226117
(Zaira Patricia B. Baniaga, et al. v. Secretary of National Defense, et al.), G.R. No. 226120 (Algamar
A. Latiph v. Secretary Delfin Lorenzana, et al.) and G.R. No. 226294 (Senator Leila M. De Lima v.
Executive Secretary Salvador C. Medialdea, et al.), the Court, voting 9-5, per Peralta, J. (Reyes, J.,
no part), rendered the following judgment:

“WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. Necessarily, the Status
Quo Ante Order is hereby LIFTED.”

Concurring in the Decision are Velasco, Leonardo-De Castro, Brion, Bersamin, Del Castillo, Perez,
Mendoza, and Perlas-Bernabe, JJ. Dissenting from the Decision are Sereno, CJ., Carpio, SAJ,
Leonen, Jardeleza and Caguioa, JJ.

The following submitted separate opinions: (a) Concurring: Brion, Perez, and Mendoza, JJ.; (b)
Dissenting: Sereno, CJ, Carpio, SAJ, Leonen, and Caguioa, JJ. One to two more Justices may still
submit their separate opinions when the Decision is finally released.

(Note: What follows below is a summary prepared by the Public Information Office based on
approved drafts circulated and deliberated upon by the Justices. In the course of final editing, some
language may change. For purposes of this summary, citations have been omitted. The summaries are
intended for public information and not for legal citation. )

Summary of the Decision

The ponente, in his concluding statement, noted by way of summary that:

“…(there is ) no clear constitutional or legal basis to hold that there was 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 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.” At bar,
President Duterte, through the public respondents acted within the bounds of 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 his rightful place at the (Libingan ng mga Bayani) 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.

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 move on and let this
issue rest.”

The Court found that the President committed no grave abuse of discretion in ordering that the
remains of former President Ferdinand E. Marcos be buried in the Libingan ng mga Bayani (LNMB)
because this was done in the exercise of his mandate under Article VII, section 17 of the 1987
Constitution to ensure the faithful execution of all laws and there is no law that prohibits the burial of
the Marcos remains at the LNMB.

Finding that the President’s power of control over the Executive Branch is a self-executing provision
not requiring legislative implementation, the majority also found that the President is not bound by
the 1992 Agreement entered into between former President Fidel V. Ramos and the Marcos family to
have the remains interred in Batac, Ilocos Norte. As the incumbent, President Duterte is free to
amend, revoke, or rescind political agreeements 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.

The Court also found that 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. It found that there is no law or executive issuance at present that specifically
excludes the land in which the LNMB is located from the use it was originally intended by the past
Presidents. The majority found that the allotment of a cemetery plot at the LNMB for former
President Marcos as 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, whether
recognizing his contributions or simply his status as such, satisfies the public use requirement.
According to the majority, the disbursement of public funds to cover the expenses incidental to the
burial is granted to compensate him for valuable public services rendered. In this regard, the majority
also considered that the President’s determination to have Marcos’s remains interred at LNMB was
inspired by his desire for national healing and reconciliation, stating that:

“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.”

The Court also found that under AFP Regulations G 161-375, the Marcos remains could be interred
at LNMB as Marcos possessed the qualifications and none of the disqualifications under the
Regulations. The majority pointed out that:

“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.”

The Court also disagreed that former President Marcos had been “dishonorably discharged” as this
specific disqualification would pertain only to the military under the Articles of War and more
specifically, those in the “active service.” On the contrary, the majority found that former President
Marcos was honorably discharged from military service, with the Philippine Veterans Affairs Office
(PVAO) expressly recognizing him as a retired veteran under RA 6948. The majority disagreed with
the argument (in the separate dissenting opinion of Senior Associate Justice Antonio T. Carpio) that
Marcos had been “dishonorably discharged” by his removal as President and Commander-in-Chief
by a direct act of the people on February 25, 1986. The ponencia stated that:

“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 161-1375. 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 acdt of the people should not be automatically given a
particular legal meaning other than its obvious political 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. Worse, the Court may be misled by the noise of a boisterous crowd, drowning the
message of the silent (or silenced) majority. 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 starts—clear constitutional and legal rules—not by the
uncertain, ambiguous and confusing messages from the actions of the people.”

The Court also disagreed with the argument that Marcos was disqualified to be buried at the LNMB
because he had not been convicted of crimes involving moral turpitude. Relying on the presumption
of innocence, the majority stated that “(d)espite all these ostensibly persuasive arguments, the fact
remains that Marcos was not convicted by final judgment of any offense involving moral turpitude.”
The majority also stated that “(t)he various cases cited by petitioners, which were decided with
finality by courts here and abroad, have no bearing in this case since they were merely civil in nature;
hence, (they) cannot and do not establish moral turpitude.”

Summary of Separate Opinions:

A. Concurring Opinions:

Justice Arturo D. Brion wrote separately to underscore his position that the President’s act was not
reviewable for the reason that it is a political question. Stressing that such a review would be judicial
overreach on the part of the Court, Justice Brion pointed out the following:

1. Judicial review, even under the Court’s expanded jurisdiction, does not empower the Court to
review allegations involving violations of statutes;
2. The faithful execution clause cannot be made the basis for questioning the manner by which the
Executive implements the law;
3. The petitioners failed to point to a specific treaty obligation prohibiting the burial at the LNMB;
4. The Constitution, while built on the ashes of the Marcos administration, should not be so
interpreted as to prevent reconciliation and moving forward in the name of national unity; and
5. The necessity of Marcos’s burial at the LNMB is a political question that had been decided by
the President, and not without support from the Filipino electorate.

Justice Jose Portugal Perez also stressed the nature of the question as political and thus not
reviewable but emphasized that the President did not commit grave abuse of discretion when he
proceeded, upon his election to office, to implement his campaign promise to have the remains of
Ferdinand E. Marcos interred at the LNMB. Justice Perez pointed to the petitioners’ judicial
admissions that then candidate Duterte had promised the burial of Marcos and that this campaign
promise had been met with opposition and protest. Noting that petitioners had admitted to having
participated in the election of options and opposed then candidate Duterte’s campaign promise, it
became clear that the question was then clearly one left to the will of the people. Justice Perez
pointed out that petitioners, not having prevailed in the electoral exercise, now choose to come to the
Court presenting a question, cloaked in legal garb, that remained political. In his conclusion, Justice
Perez stated that:

“Whether the policy of healing and reconciliation ‘over and above the pain and suffering of the
human rights victims’ is in grave abuse of 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 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 redemption 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.”
Justice Jose Catral Mendoza stated that the Court should not take part in the political controversy
because the question presented is not justiciable and that, therefore, the petition should be dismissed.
He also argued that even were the Court to take cognizance of the petitions, the President’s act was
not attended by grave abuse of discretion as there was no violation of any constitutional provision or
law. He concludes his separate opinion with these words:

“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
(at) 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 (at) the LNMB will
not re-write history.

On (this) matter, however, the Supreme Court should not have a hand. It should not resolve the
issues in this truly political controversy.”

B. Dissenting Opinions:

Chief Justice Maria Lourdes P. A. Sereno, in her dissent, affirmed that the Court must take
cognizance of the issues presented in order to preserve the Constitution as well as the judiciary’s own
prerogatives under the Constitution. She maintained that the President acted with grave abuse of
discretion in ordering the interment at LNMB because it violated domestic law and international law
in relation to the obligations to do justice for human rights victims. After a review of the applicable
international agreements and protocols, the Chief Justice pointed out that the Philippines is bound to
affirmatively protect the rights of the human rights victims under martial law by providing effective
reparations, which would include monetary compensation as well as non-monetary remedies (such as
symbolic reparation). The Chief Justice pointed out that the interment of the Marcos remains at
LNMB would be the antithesis of symbolic reparation. She also pointed out that the interment would
run counter to the duty to combat impunity as well as to preserve memory—all of which are
international commitments that the Philippines is bound to observe.

The Chief Justice also took exception to the majority’s position that the interment would serve a
public purpose, thus justifying the use of public funds. She maintained that the recognition by both
branches of government—the legislative and judicial—that Marcos was a dictator, plunderer and a
human rights violator would preclude the interment at LNMB as such act would run counter to the
original intention of the LNMB. The invocation that the interment at LNMB would bring about
national unity and healing, by itself, is insufficient to justify the use of public funds absent a public
purpose.

Ending her dissent, the Chief Justice wrote that:

“Respondents may deny the implications of their actions today, 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 LNMB 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.”

Senior Associate Justice Antonio T. Carpio focused on Marcos’s ineligibility to be interred at LNMB
because of the sovereign action of the people of removing him from office as President and
Commander-in-Chief.

He argued that even assuming that Marcos, as Medal of Valor awardee, was qualified for interment
at LNMB, he ceased to be qualified when he was ousted on February 25, 1986. Citing Marcos v.
Manglapus (1989), SAJ Carpio noted that 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.” He noted that Marcos’s forcible removal in February 1986 amounted to “the strongest form
of dishonorable discharge from office since it is meted out by the direct act of the sovereign people.”

He pointed out that Marcos’s ouster is beyond judicial review and must be accepted as an
incontrovertible fact which has become part of history. The removal was a direct exercise of the
power of the Filipino people, which could not be called “honorable.”

He disagreed with the majority’s contentions that Marcos could not be considered dishonorably
discharged as his separation was not in accordance with the procedures and guidelines prescribed in
Circular 17, Series of 1987 of the Armed Forces of the Philippines because: (1) Marcos was
separated from service before the circular was passed; the circular, an administrative act, cannot be
applied retrospectively to undo a final act by the sovereign people; and (2) even assuming the
circular applied to Marcos, he was still dishonorably discharged as the incontrovertible fact of ouster
that is beyond both judicial and administrative review cannot be undone by a mere circular.

SAJ Carpio also disagreed with the position that the disqualifications under AFPR G 161-375 apply
only to those in the active military service and do not apply to former Presidents. To subscribe to this
view would negate the purpose for which the LNMB was originally established, which was to honor
Filipino soldiers who fought for freedom and democracy. SAJ Carpio pointed out that “(i)ndeed,
Marcos is the very antithesis of freedom and democracy because he was a dictator as declared by this
Court.”

Moreover such a view would also be discriminatory against military personnel who are made subject
to both qualifications and disqualifications while non-military personnel, such as former Presidents,
are subjected to the qualifications but not the disqualifications.

SAJ Carpio disagreed with the majority’s position that there was a public purpose for the interment
of Marcos’s remains. Defining “public policy” as “that principle 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”, SAJ Carpio maintained that the President must implement the law considering the highest
standards of promoting the public good as embodied in the Constitution, international law and
municipal statutes. Accordingly, SAJ Carpio argued that the DND Memorandum is contrary to public
policy as it would violate RA 10368. The President, in implementing the law, must observe the
standard of recognition of the rights of human rights victims. Marcos’s interment at LNMB will
cause injury particularly to human rights victims of his regime and the sovereign people who
collectively ousted him. For this reason, he argues that the burial at LNMB is contrary to public
policy.

Finally, SAJ Carpio points out that public funds cannot be spent for a non-public purpose. Marcos’s
ouster by a sovereign act of the Filipino people constituted a dishonorable discharge; consequently,
his interment at LNMB serves to convert his burial into a private affair of the Marcos family. No
public purpose is served by transferring his remains to LNMB and public funds cannot be used for
this purpose.

Associate Justice Marvic M.V.F. Leonen started his dissent, thus:

“Under our constitutional order, Presidents, unlike kings, earn their honors. As public servants,
their position in itself should not be the basis to glorify them. Neither will their place in history be
determined by a successor 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.”

Justice Leonen then argued that “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 family. He is certainly not worthy of emulation and
inspiration by those who do 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.”

His dissent focused on six points, thus:

1. The General Orders which were the basis for the issuance of the questioned orders of public
respondents are invalid because they violate RA 289.
2. Assuming without accepting that AFP Regulations were valid when issued, the verbal orders of
the President, the Memorandum of the Secretary of National Defense, and the orders of respondent
Enriquez all violate the requirement in RA 289, section 1 that those buried must have led lives
worthy of “inspiration and emulation.”
3. Assuming without conceding that the AFP regulations were valid when issued, the public
respondents gravely abused their discretion when they failed to show, in view of the findings of the
National Historical Commission of the Philippines, that they had sufficiently determined that there
was factual basis to believe that the burial of Marcos’s remains would be consistent with RA 289 and
the various proclamations relevant to the LNMB.
4. The President’s verbal orders, the memorandum of the Secretary of National Defense, and the
orders of respondent Enriquez were issued with grave abuse of discretion because they violate RA
10368.
5. The President’s verbal orders, the memorandum of the Secretary of National Defense, and the
orders of respondent Enriquez cannot be justified under the provisions of the Revised Administrative
Code because there is no public purpose for the interment of Marcos’s remains at LNMB.
6. The actions of public respondents are contrary to the oath of office of the President because they
encourage impunity, which is the result of rewarding the person who presided over human rights
violations and who personally participated in the plunder of the public treasury.
 Ending his dissent, Justice Leonen writes:

“We forget the lessons of the past when we allow abuse to hold sway over the lives of those who
are 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 is an effort to forget out collective shame, to bury our inaction for many years. It is to contribute to
the impunity against human rights abuses and the plunder of our public trust.

To deny these petitions is to participate in the effort to create myth at the expense of history.

Ferdinand E. Marcos is no hero. His remains, by law, cannot be transferred to the Libingan ng mga
Bayani.

Justice Alfredo Benjamin S. Caguioa pointed out that the order to inter the remains for former
President Marcos at 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.

He pointed out that the argument “that burying (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.” He also disagreed with the Solicitor General’s argument that the President’s power to
reserve land for a public purpose under Section 14, Chapter IV, Book III of the Revised
Administrative Code of 1987 (RAC) was sufficient basis for the President’s decision to inter the
Marcos remains. On this, he noted that the RAC provision (as well as Sec. 83 of CA 141 or The
Public Land Act) both required the President to exercise this power by proclamation or executive
order. The President’s order to inter is a verbal order, which falls short of the manner prescribed by
law for its exercise.

He also disagreed that interring the Marcos remains constituted a public purpose for purpose of the
RAC considering the Solicitor General’s admission that the burial of the Marcos remains was a
campaign promise of the President to the Marcos family. In his opinion, this indicated that the
interment serves no public purpose and does not justify the disbursement of public funds therefor.

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