G.R. No. 225973 - Dissenting 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 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.

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.

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

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.

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.

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.

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 review15 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.

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 above provision delineates judicial power and engraves, for the first time, the so-called expanded certiorari jurisdiction of the Supreme Court.16

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 expansion of judicial power resulted in constricting the reach of the political question doctrine.20 Marcos v. Manglapus21 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 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

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.

The Court in Marcos v. Manglapus31 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.

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 of Representatives;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

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 III50 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 Elections51 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:

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.

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:

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

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 x

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

To 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:

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.

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 people72 - 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:

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:

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 monetary85 and non-monetary86 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.

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. Republic89 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 Menzi90 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.

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 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.

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:

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

The foregoing pronouncements are considered part of the legal system of the Philippines106 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:

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:

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.) 1076113 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. Manglapus118 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) Charter124 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 Committee131 (UNHRC) issued General Comment No. 31132 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 established141 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

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:

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 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. 3152 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.

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 act159 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 Disappearance167 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 Power169 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

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)

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 case182 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 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 2005193 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 Preamble197 and Parts I198 and II199 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:

Although the PCIJ in the Chorzow Factory case201 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:

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).

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:

B. The burial would contravene the duty of the Philippines to provide reparations to victims of human rights violations during the Marcos regime.

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:

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.

Both monetary224 and non-monetary225 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:

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.

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

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

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

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:

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:

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.

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 victims275 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 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.

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 Report281 on the Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political),282 Special Rapporteur Louis Joinet concluded:

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

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:

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.

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:

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:

[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.

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:

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

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.

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.