Ocampo et al. vs. Enriquez et al., G.R. No. 225973, November 08, 2016

The President's decision to allow the burial of former President Marcos at the LNMB is a political question within executive discretion and does not constitute grave abuse of discretion where Marcos qualifies under AFP Regulations G 161-375 and no express constitutional or statutory prohibition bars the interment.

During the 2016 presidential campaign, candidate Rodrigo R. Duterte publicly announced he would allow the burial of former President Ferdinand E. Marcos at the LNMB. After winning the May 2016 elections and assuming office on June 30, 2016, President Duterte verbally ordered Secretary of National Defense Delfin N. Lorenzana on July 11, 2016 to implement his campaign promise. On August 7, 2016, Secretary Lorenzana issued a Memorandum directing AFP Chief of Staff General Ricardo R. Visaya to undertake the necessary planning and preparations for the interment. On August 9, 2016, AFP Rear Admiral Ernesto C. Enriquez issued a directive to the Philippine Army Commanding General to provide all military honors accorded for a President. These issuances prompted the filing of seven consolidated petitions before the SC.

• Seven petitions for certiorari, prohibition, and/or mandamus filed directly with the SC (August 15–22, 2016)
• SC issued a Status Quo Ante Order on August 23, 2016
• Oral arguments held on August 31 and September 7, 2016
• Parties filed their respective Memoranda
• SC En Banc decided the case on November 8, 2016, voting 9-5 to dismiss the petitions
• Status Quo Ante Order lifted

• Former President Ferdinand E. Marcos died on September 28, 1989, in Honolulu, Hawaii, while in exile after being ousted by the EDSA People Power Revolution on February 25, 1986.
• In 1992, an agreement was executed between the Philippine Government (represented by then President Fidel V. Ramos) and the Marcos family allowing the return of Marcos' remains to the Philippines, subject to conditions including burial in Batac, Ilocos Norte, with honors befitting a major (his last AFP rank).
• Marcos' remains were returned in 1993 and interred in a mausoleum in Batac, Ilocos Norte.
• During the 2016 presidential campaign, Duterte promised to allow Marcos' burial at the LNMB.
• After winning the election, Duterte verbally ordered the interment on July 11, 2016.
• Secretary Lorenzana issued the implementing Memorandum on August 7, 2016.
• Rear Admiral Enriquez issued the directive for military honors on August 9, 2016.
• The LNMB was originally the Republic Memorial Cemetery, renamed Libingan ng mga Bayani by President Magsaysay through Proclamation No. 86 (1954). It was declared a national shrine by Marcos through Proclamation No. 208 (1967).
• AFP Regulations G 161-375 (2000) enumerates those qualified for interment at the LNMB, including Medal of Valor awardees, Presidents/Commanders-in-Chief, Secretaries of National Defense, Chiefs of Staff, active and retired military personnel, veterans, government dignitaries, statesmen, national artists, and former Presidents.
• The same regulation disqualifies personnel who were dishonorably separated/reverted/discharged from the service, and authorized personnel convicted by final judgment of an offense involving moral turpitude.
• Marcos was a former President, Commander-in-Chief, legislator, Secretary of National Defense, military personnel, veteran, and Medal of Valor awardee.
• The National Historical Commission of the Philippines (NHCP) published a study on July 12, 2016 opposing the burial, concluding that Marcos' military record was "fraught with myths, factual inconsistencies, and lies."

• The burial violates the spirit and letter of the 1987 Constitution, which is a "post-dictatorship charter" and a "human rights constitution" that condemns the Marcos regime.
• R.A. No. 289 (National Pantheon Act) provides the standard that only those worthy of "inspiration and emulation" may be interred; Marcos' human rights violations, corruption, and plunder disqualify him.
• R.A. No. 10368 (Human Rights Victims Reparation and Recognition Act) implicitly disqualifies Marcos by recognizing him as a human rights violator; the burial would mock the law's purpose.
• The burial violates international human rights law obligations, including the ICCPR, the UN Basic Principles on the Right to a Remedy and Reparation, and the UN Principles on Combating Impunity.
• Marcos was dishonorably discharged from service through his ouster by the People Power Revolution, disqualifying him under AFP Regulations.
• Marcos committed offenses involving moral turpitude (plunder, human rights violations), disqualifying him under AFP Regulations.
• The 1992 Agreement between the Ramos government and the Marcos family constitutes a binding compromise agreement limiting the burial to Ilocos Norte.
• The burial would desecrate the LNMB as a sacred national shrine.
• The burial would use public funds and property for a private purpose (benefiting the Marcos family).

• President Duterte's decision to allow the burial is a political question involving the wisdom of executive policy, not subject to judicial review.
• The decision promotes national healing, forgiveness, and reconciliation.
• Marcos qualifies for interment under AFP Regulations G 161-375 as a former President, Medal of Valor awardee, soldier, and veteran.
• Marcos was not convicted by final judgment of any offense involving moral turpitude, nor was he dishonorably discharged from military service.
• The LNMB is distinct from the National Pantheon envisioned under R.A. No. 289; the latter was never constructed.
• R.A. No. 10368 does not expressly or impliedly prohibit Marcos' burial at the LNMB.
• The constitutional provisions cited by petitioners (Article II) are not self-executing.
• The 1992 Agreement cannot bind the incumbent President, who has the power to amend or rescind political agreements of predecessors.
• The burial does not confer the title of "hero" on Marcos; the LNMB's name is a misnomer as it serves as a military cemetery, not exclusively a hero's shrine.
• The President acted within his residual powers and his power to reserve public lands for specific purposes.

Procedural Issues: 1. Whether President Duterte's determination to have 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 Issues: 1. Whether the DND Secretary and AFP Rear Admiral committed grave abuse of discretion in issuing the assailed Memorandum and Directive. 2. Whether the issuance and implementation of the assailed Memorandum and Directive violate the Constitution, domestic laws (R.A. No. 289, R.A. No. 10368, AFP Regulations G 161-375), and international law (ICCPR, UN Basic Principles on Reparation, UN Principles on Combating Impunity). 3. Whether historical facts, laws recovering ill-gotten wealth, and SC pronouncements on the Marcos regime nullified his entitlement to interment at the LNMB. 4. Whether the Marcos family waived the burial at the LNMB through the 1992 Agreement.

Procedural:

1. Justiciable Controversy: The SC ruled that President Duterte's decision involves a political question not constituting a justiciable controversy. The decision to allow the burial was based on the President's wisdom that it would promote national healing and forgiveness. Absent grave abuse of discretion, the decision is outside the ambit of judicial review.

2. Locus Standi: The SC held that petitioners failed to show direct and personal injury resulting from the interment. As taxpayers, they did not demonstrate illegal disbursement of public funds. As members of the Bar, they did not show direct injury. As concerned citizens, they failed to demonstrate a clear and imminent threat to fundamental constitutional rights. As legislators, they did not show encroachment on their legislative prerogatives. As human rights victims, the SC found that the burial would have no profound effect on national life given the passage of more than 27 years since Marcos' death and 30 years since his ouster.

3. Exhaustion of Administrative Remedies and Hierarchy of Courts: The SC held that petitioners violated both doctrines by failing to seek reconsideration from the Secretary of National Defense and by directly filing with the SC instead of the proper RTC.

Substantive:

1. Grave Abuse of Discretion: The SC found no grave abuse of discretion. Grave abuse requires an act done contrary to the Constitution, law, or jurisprudence, or executed whimsically, capriciously, or arbitrarily. None was present.

2. Constitutional and Statutory Compliance:

   • Constitution: Article II provisions cited by petitioners are not self-executing (citing Tañada v. Angara). Section 1, Article XI (public office as public trust) requires enabling legislation. Section 3(2), Article XIV (education on patriotism) and Section 26, Article XVIII (sequestration of ill-gotten wealth) have no direct or indirect prohibition on the burial. Section 17, Article VII (faithful execution clause) is not violated.
   • R.A. No. 289: The LNMB is distinct and separate from the National Pantheon. The National Pantheon was never constructed. The law is silent on the LNMB.
   • R.A. No. 10368: The law does not expressly or impliedly prohibit Marcos' burial at the LNMB. The law is victim-oriented and does not amend or repeal AFP Regulations. Repeals by implication are not favored.
   • AFP Regulations G 161-375: Marcos qualifies as a former President, Medal of Valor awardee, soldier, and veteran. He was not convicted by final judgment of an offense involving moral turpitude. He was not dishonorably discharged from military service. His ouster by People Power Revolution is an extra-constitutional sovereign act beyond the scope of administrative regulations.

   • International Law: The ICCPR and UN principles call for legislative measures, which the Philippines has complied with through various laws and executive issuances. The burial does not violate these obligations.

   • Historical Facts and Judicial Pronouncements: The SC did not find that historical facts, ill-gotten wealth recovery laws, or judicial pronouncements nullified Marcos' entitlement to interment. The SC noted that Marcos should be viewed in his totality — while not all good, he was not pure evil.

   • 1992 Agreement: The President is not bound by political agreements entered into by predecessors. He is free to amend, revoke, or rescind such agreements.

• Political Question Doctrine — 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. The SC held that the President's decision on the burial involves a political question based on wisdom, not legality, and is not tainted by grave abuse of discretion.

• Doctrine of Qualified Political Agency (Alter Ego Principle) — The heads of executive departments are assistants and agents of the Chief Executive. Acts of Secretaries performed in the regular course of business are presumptively the acts of the Chief Executive unless disapproved. Applied to validate the DND Secretary's Memorandum as carrying out the President's directive.

• Non-Self-Executing Constitutional Provisions — Article II provisions (Declaration of Principles and State Policies) are not self-executing and require legislative enactment for enforcement. They serve as guidelines for legislation and judicial review, not as judicially enforceable constitutional rights (citing Tañada v. Angara).

• Repeals by Implication Not Favored — For an implied repeal to occur, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot stand together. Applied to reject the argument that R.A. No. 10368 impliedly amended AFP Regulations.

• Presumption of Regularity — Official acts are presumed to have been performed regularly. Applied to presume that President Duterte's decision was inspired by national healing and reconciliation, not by personal political debts.

• Doctrine of Exhaustion of Administrative Remedies — Before seeking court intervention, a party should first avail of all administrative processes. Petitioners were faulted for failing to seek reconsideration from the DND Secretary.

• Doctrine of Hierarchy of Courts — Extraordinary writs should be filed first with the proper RTC, not directly with the SC. Petitioners violated this doctrine.

• "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."

• "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."

• "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.'"

• "While he was not all good, he was not pure evil either. Certainly, just a human who erred like us."

• "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.'"

• "The interment of Marcos at the LNMB will not bestow upon him the title of a hero." (per the ponencia's reasoning)

• "To move on is not to forget the past."

• Tañada v. Angara (338 Phil. 546 [1997]) — Cited for the ruling that Article II provisions are not self-executing; they are guidelines for legislation and judicial review, not judicially enforceable constitutional rights.

• Marcos v. Manglapus (258 Phil. 479 [1989]) — Cited to distinguish the present case; in Manglapus, the controversy was of grave national importance involving a dictator forced out of office, whereas the present burial issue would have no profound effect on national life given the passage of time.

• Kilosbayan, Inc. v. Morato — Cited within Tañada v. Angara for the principle that Article II principles are not self-executing provisions.

• Basco v. Pagcor — Cited within Tañada v. Angara for the principle that broad constitutional principles need legislative enactments to implement them.

• Belgica v. Ochoa (721 Phil. 416 [2013]) — Cited for the requisites of judicial review: actual case or controversy, standing, earliest opportunity, and lis mota.

• Southern Hemisphere Engagement Network v. Anti-Terrorism Council (646 Phil. 452 [2010]) — Cited for the principle that absence of the first two requisites of judicial review renders discussion of the last two superfluous.

• Province of North Cotabato v. GRP Peace Panel (589 Phil. 387 [2008]) — Cited for the definition of actual case or controversy and the requirement of contrariety of legal rights.

• Integrated Bar of the Philippines v. Zamora (392 Phil. 618 [2000]) — Cited for the definition of locus standi.

• Prof. David v. Pres. Macapagal-Arroyo (522 Phil. 705 [2006]) — Cited for the requirement that members of the Bar must allege direct or potential injury.

• BAYAN v. Exec. Sec. Zamora (396 Phil. 623 [2000]) — Cited for the principle that legislators must show encroachment on their prerogatives.

• Biraogo v. Philippine Truth Commission (651 Phil. 374 [2010]) — Cited for the requirement that legislators must show encroachment on legislative prerogatives.

• The Diocese of Bacolod v. COMELEC (G.R. No. 205728, Jan. 21, 2015) — Cited for the standard that concerned citizens must show issues of transcendental importance.

• Kilosbayan v. Guingona (G.R. No. 113375, May 5, 1994) — Cited for the standard of transcendental importance for citizen standing.

• Almario v. Executive Secretary (714 Phil. 127 [2013]) — Cited for the definition of grave abuse of discretion.

• Republic v. Sandiganbayan (453 Phil. 1059 [2003]) — Cited for the forfeiture of Marcos' ill-gotten wealth in Swiss bank accounts.

• Marcos, Jr. v. Republic (686 Phil. 980 [2012]) — Cited for the forfeiture of Arelma, S.A. assets as ill-gotten wealth.

• Republic v. Estate of Hans Menzi (512 Phil. 425 [2005]) — Cited for the forfeiture of shares as ill-gotten wealth.

• Yuchengco v. Sandiganbayan (515 Phil. 1 [2006]) — Cited for the characterization of the Marcos regime as a "well-entrenched plundering regime."

• Mijares v. Ranada (495 Phil. 372 [2005]) — Cited for the acknowledgment of the "colossal damage wrought under the oppressive conditions of the martial law period."

• Remman Enterprises v. Professional Regulatory Board (726 Phil. 104 [2014]) — Cited for the rule on repeals by implication.

• Joson v. Torres — Cited for the doctrine of qualified political agency.

• Yap v. Commission on Audit (633 Phil. 174 [2010]) — Cited for the principle that disbursement of public funds to compensate for valuable public services rendered is valid.

• National Electrification Administration v. COA (427 Phil. 464 [2002]) — Cited for the principle that presidential power of control is self-executing.

• Article II, Sections 2, 11, 13, 23, 26, 27, 28 of the 1987 Constitution — Declaration of Principles and State Policies. Held not self-executing; require legislative enactment for enforcement.

• Article III, Section 1 of the 1987 Constitution — Due Process and Equal Protection Clause. Not violated by the burial.

• Article VII, Section 17 of the 1987 Constitution — Faithful Execution Clause. Not violated; the President acted within legal bounds.

• Article XI, Section 1 of the 1987 Constitution — Public Office as Public Trust. Not self-executing; requires enabling legislation.

• Article XIV, Section 3(2) of the 1987 Constitution — Duty of educational institutions to teach patriotism and human rights. Not directly prohibiting the burial.

• Article XVIII, Section 26 of the 1987 Constitution — Transitory provision on sequestration of ill-gotten wealth. Not directly prohibiting the burial.

• R.A. No. 289 (National Pantheon Act, 1948) — Held inapplicable; the LNMB is distinct from the National Pantheon, which was never constructed.

• R.A. No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013) — Held not to impliedly prohibit Marcos' burial; the law is victim-oriented and silent on burial prohibition.

• AFP Regulations G 161-375 (2000) — Allocation of Cemetery Plots at the LNMB. Held as the sole authority governing interment at the LNMB. Marcos qualifies under the enumerated categories and does not fall under the disqualifications.

• Executive Order No. 292 (Administrative Code of 1987) — Cited for the President's power to reserve public lands and exercise control over executive departments.

• Presidential Decree No. 105 (1973) — Declaring National Shrines as Sacred and Hallowed Places. Held inapplicable to the LNMB as the LNMB was not expressly included in the enumerated national shrines.

• Proclamation No. 86 (1954) — Renaming Republic Memorial Cemetery to Libingan ng mga Bayani.

• Proclamation No. 208 (1967) — Reserving the LNMB for national shrine purposes.

• International Covenant on Civil and Political Rights (ICCPR) — Held that the Philippines has complied with its obligations through domestic legislation.

• UN Basic Principles and Guidelines on the Right to a Remedy and Reparation — Held that these do not create new obligations but identify mechanisms for implementing existing obligations; the Philippines is compliant.

• UN Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity — Same treatment as above.

• Justice Arturo D. Brion (Separate Concurring) — Argued that the petitions presented issues outside the Court's judicial authority. The expanded jurisdiction under Article VIII, Section 1 does not empower the Court to directly pass upon allegations involving violations of statutes; only constitutional violations trigger the expanded certiorari jurisdiction. The faithful execution clause cannot be used to constitutionalize statutory violations. The burial does not violate any specific treaty obligation. The necessity of the burial is a political question decided by the President and supported by the electorate.

• Justice Lucas P. Bersamin (Separate Concurring) — Concurred with the main opinion. Emphasized that the interment is a discretionary act of the President under his control over the LNMB as a military facility. Marcos qualifies under AFP Regulations G 161-375 and does not fall under the disqualifications.

• Justice Jose P. Perez (Separate Concurring) — Argued that the burial issue was a political question already resolved through the political process of the 2016 elections. The electorate voted for Duterte knowing his promise to allow the burial. The Court should not substitute its judgment for that of the political branches.

• Justice Alfredo Benjamin S. Caguioa (joined by Justice Francis H. Jardeleza) (Dissenting) — Argued that the burial violates R.A. No. 289 (which he found applicable to the LNMB), R.A. No. 10368, PD 105, RA 10066, RA 10086, AFP Regulations (Marcos was dishonorably separated and committed moral turpitude), and the Philippines' international law obligations. The President's exercise of power was not supported by factual basis and constituted grave abuse of discretion.

• Justice Marvic M.V.F. Leonen (Dissenting) — Argued that the burial is illegal under the Constitution, laws, and jurisprudence. The AFP Regulations are ultra vires as they violate R.A. No. 289. Marcos does not meet the "inspiration and emulation" standard. The burial violates R.A. No. 10368, international human rights obligations, and the duty to combat impunity. The decision trivializes the suffering of Martial Law victims.

• Justice Antonio T. Carpio (Dissenting) — Argued that Marcos is disqualified under AFP Regulations G 161-375 because his ouster by the People Power Revolution constitutes dishonorable discharge from service. The disqualifications should apply equally to military and civilian personnel under the Equal Protection Clause. The burial is contrary to public policy as established by R.A. No. 10368 and the Constitution.

• Chief Justice Maria Lourdes P.A. Sereno (Dissenting) — Argued that the 1987 Constitution encodes a preference for human rights protection. The burial violates the Constitution, domestic laws, and international obligations. The Court has a duty to protect constitutional values and cannot refuse to exercise judicial review. The burial constitutes an act of impunity and violates the victims' right to symbolic reparation.

• Justice Francis H. Jardeleza — Joined Justice Caguioa's dissent.

The dissenting opinions extensively cited additional cases, including:

• Marcos v. Manglapus (258 Phil. 479 [1989]) — Characterized Marcos as "a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country."

• Republic v. Sandiganbayan (453 Phil. 1059 [2003]) — Forfeiture of US$658 million in Swiss bank deposits as ill-gotten wealth.

• Estrada v. Desierto (406 Phil. 1 [2001]) — Recognized the legitimacy of the People Power Revolution and the Aquino government.

• Lawyers' League for a Better Philippines v. Aquino (G.R. No. 73748, May 22, 1986) — Recognized the legitimacy of the Aquino government as installed by the sovereign people.

• Francisco v. House of Representatives (460 Phil. 830 [2003]) — Discussed the two species of political questions (truly political and justiciable political) and the expanded judicial power under the 1987 Constitution.

• The Diocese of Bacolod v. COMELEC (G.R. No. 205728, Jan. 21, 2015) — The political question doctrine never precludes judicial review when a constitutional organ infringes upon a fundamental right.

• Araullo v. Aquino III (G.R. Nos. 209287 et al., July 1, 2014) — Expanded certiorari jurisdiction encompasses review of executive acts.

• Biraogo v. Philippine Truth Commission (651 Phil. 374 [2010]) — Court reviewed the creation of a Truth Commission despite it being a campaign promise.

• Tañada v. Angara (338 Phil. 546 [1997]) — The SC will not shirk its duty to uphold the Constitution in matters involving grave abuse of discretion.

• PCGG v. Peña (243 Phil. 93 [1988]) — Described the Marcos regime as a "well-entrenched plundering regime" of twenty years.

• Hilao v. Estate of Marcos (103 F.3d 762 [9th Cir. 1996]) — US court applied command responsibility to hold Marcos liable for human rights abuses; awarded US$1.2 billion in exemplary damages and US$770 million in compensatory damages.

• In Re Estate of Marcos Human Rights Litigation (910 F. Supp. 1460 [D. Haw. 1995]) — Found Marcos personally responsible for torture, summary execution, disappearance, and arbitrary detention.

• Galman v. Sandiganbayan (228 Phil. 42 [1986]) — Found that Marcos stage-managed the Aquino-Galman murder case trial.

• Almario v. Executive Secretary (714 Phil. 127 [2013]) — Defined grave abuse of discretion and discussed the faithful execution clause.