G.R. No. 225973 - Separate Opinion

G.R. No. 225973, November 8, 2016,
♦ Decision, Peralta, [J]
♦ Dissenting Opinion, Sereno, [CJ]
♦ Dissenting Opinion, Carpio, [J]
♦ Dissenting Opinion, Leonen, [J]
♦ Dissenting Opinion, Caguioa, [J]
♦ Concurring Opinion, Bersamin, [J]
♦ Separate Concurring Opinion, Brion, [J]
♦ Separate Opinion, Perez, [J]
♦ Separate Opinion, Mendoza, [J]

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.

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.

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.

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.

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.

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.

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.

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.

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:

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."

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:

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

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 Constitution10 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.

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]

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.

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].

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 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.

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.

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.

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.

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.