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1E Legal Research Final Requirement
1E Legal Research Final Requirement
1E Legal Research Final Requirement
LEGAL MEMORANDUM
OCAMPO V ENRIQUEZ CASE
1E LEGAL RESEARCH
FINAL REQUIREMENT
Submitted by:
Corpus, Isabelle
Combate, Valeriano Troy
Navarro, Bea Czarina
Ocampo, Justin Bryan
Submitted to:
Atty. Felicisimo Agas
MEMORANDUM FOR THE PLAINTIFF
Plaintiff, through counsels, respectfully submits this
memorandum to wit:
STATEMENT OF THE CASE
This is an action to nullify President Rodrigo Roa Duterte’s
decision to bury the remains of the late president Ferdinand Edralin
Marcos, Sr. in the Libingan ng Mga Bayani and declare such action
as an exercise of grave abuse of discretion amounting to lack or
excess of jurisdiction.
STATEMENT OF FACTS
President Rodrigo Roa Duterte made a campaign promise
during the 2016 Presidential elections that if ever he would be elected
as president, he would bury the former president Ferdinand Marcos
at the Libingan ng Mga Bayani. He won the elections with 16,601,997
votes and later on assumed office.
Secretary of Defense Lorenzana issued a Memorandum to the
Chief of Staff of the Armed Forces of the Philippines, General Ricardo
Visaya to submit an Implementing Plan for the interment of former
President Marcos at the Libingan ng Mga Bayani as ordered verbally
by President Duterte.
AFP Rear Admiral Ernesto Enriquez issued directives to the
Philippine Army Commanding General regarding the funeral honors
and service of former President Marcos.
ISSUES
1. Whether or not the president’s decision to bury Marcos at the
Libingan ng Mga Bayani is in accordance with the Constitution, the
law or jurisprudence
2. Whether or not the president’s decision to bury Marcos at the
LNMB is done whimsically, capriciously or arbitrarily, out of malice,
ill will or personal bias
3. Whether or not Marcos is entitled to be buried at the Libingan ng
Mga Bayani
ARGUMENTS/DISCUSSIONS:
1. The President’s allocation of public funds for the interment of
Marcos do not constitute any legitimate public purpose.
We agree with Chief Justice Ma. Lourdes Sereno’s dissent on
the matter regarding the burial of Marcos. Duterte, in preparing for the
interment of Marcos on a portion of the Libingan ng mga Bayani,
would entail the disbursement of public funds. Another point to
ponder upon would be the characteristic of the Libingan ng mga
Bayani as a national cemetery owned by the government.
Section 4, par. 2 of the PD 1445, also known as the “Ordaining
and and Instituting A Government Auditing Code of the Philippines”
Law, states that:
“
Xxxxx
2. Government funds or property shall be spent or used solely for
public purposes1
Xxxxx
”
The Supreme Court has elaborated “public purpose” in a
number of cases. According to the case of Yap vs. Commission on
Audit , the Supreme Court stated that the term “public purpose” is
defined as an activity as will serve as benefit to [the] community as a
body and which at the same time is directly related function of
government.2 The Supreme Court also included, in the case of Binay
v. Domingo , the concept of “public purpose” as expenditures which
promote social justice, general welfare, and the common good.3
In justifying that the disbursement of public funds constitute a
public purpose, the respondents asserted their concept of “national
unity and healing”. However, respondents failed to explain how the
interment of Marcos would promote national unity and healing. For
the failure to explain how such goal would be attained in burying
Marcos in the Libingan ng mga Bayani, respondents have failed to
substantiate their claim that such disbursement in the Marcos
interment as a legitimate disbursement of public funds for a public
purpose.
As a final note, we have opined that Duterte’s decision to bury
the late Ferdinand Marcos only served the benefit of the Marcos
family. During Duterte’s campaign, one of his campaign promises
when he wins is that he would bury Marcos. What exemplifies the
1
Ordaining and Instituting a Government Auditing Code of the Philippines [Auditing Code], P.D.
No. 1445, §4 (2), (1978).
2
Yap v. Commission on Audit, G.R. No. 158562, April 23, 2010
3
Binay v. Domingo, G.R. No. 92389, September 11, 1991
political agenda in such declaration is that such promise was made in
no other place than the Marcos’ territory in Ilocos Norte. As such, the
interment does not justify the disbursement of public funds since no
legitimate public purpose was attained in Marcos’ interment in the
Libingan ng mga Bayani, but only advanced the private interests of
the Marcos family.4 The government coffers should not be liable for
the financial cost of burying a loved one of the Marcos family, being a
private matter in nature.
2. The interment of President Marcos at the Libingan ng Mga
Bayani is in violation of international human rights law and RA
10368.
As a constitution that is an answer to grave human rights
violations during the Marcos regime, the Philippine Constitution
upholds the duty of the State to protect human rights. Article II,
Section 11 of the Philippine Constitution5 states that “The State
values the dignity of every human person and guarantees full respect
for human rights,” while embodied in Article III, Section 12 of the
Philippine Constitution6 is the prohibition the use of torture, force,
violence, threat, intimidation, or any other means which vitiate free
will and the mandate to the rehabilitation of victims of torture and
other similar acts. Aside from the domestic laws, international laws
also promotes the protection of human rights.
Article II, Section 2 of the Philippine Constitution7 states that the
Philippines … “adopts the generally accepted principles of
international law as part of the law of the land.” Also, the Philippines
acknowledges the principle of pacta sunt servanda, which bounds the
Philippines to comply in good faith with treaties, agreements and
other obligations in the international arena.
The protection and promotion of human rights is embodied
throughout international instruments such as the UN Charter8, the
International Covenant on Civil and Political Rights9, the General
4
Ocampo v Enriquez, GR No. 225973 (2016) (CJ. Sereno, Dissenting)
5
PHIL. CONST. Art. II, § 11.
6
PHIL. CONST. Art. III, § 12.
7
PHIL. CONST. Art. II, § 2.
8
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI [hereinafter UN
Charter].
9
UN General Assembly, International Convention on Civil and Political Rights, 16 December
1966, United Nations, Treaty Series, Vol. 999 [hereinafter ICCPR].
Article 2(1) of the ICCPR 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.
Comment No. 3110 of the UNHRC, and the Universal Declaration of
Human Rights11. These instruments provide for the obligations of the
State to recognize and respect human rights and provide for remedy
when violated. In short, the duty to respect human rights entails the
obligation to provide an effective remedy. The nature of this obligation
is the grant to reparations to individual victims.
Several international laws such as the International Covenant
on Civil and Political Rights (ICCPR)12, 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 dated December 16,
2005 by the UN General Assembly , the Convention on the
Elimination of Racial Discrimination (CERD), the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (Convention Against Torture), the Updated Set of
Principles for the Protection and Promotion of Human Rights Through
Action to Combat Impunity dated February 8, 2005 by the United
Nations Economic and Social Council provide for “effective remedies”
and reparations for human rights victims. However, though there
clearly is a right provided for, this right to effective remedies is not
defined in these laws.
The right to effective remedy is to be understood as not a
singular concept but a holistic variety of measures which is comprised
of two dimensions13. First is the procedural and second substantive.
According to the General Comment No. 3 by the UNCAT,
The obligations of State parties to provide
redress under Article 14 are twofold: procedural and
substantive. To satisfy their procedural obligations,
State parties shall enact legislation and establish
complaints mechanisms, investigation bodies and
institutions, including independent judicial bodies,
10
UN Human Rights Committee (HRC), General Comment No. 31 [80], The nature of the general
legal obligation imposed on States Parties to the Covenant, 26 May 2004 [hereinafter UNHRC
General Comment No. 31]
11
UN General Assembly, Universal Declaration on Human Rights, 10 December 1948 [hereinafter
UDHR].
12
Article 2 of the ICCPR states that:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop the possibilities of
judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
13
Ocampo v Enriquez, supra note 4 at 32.
capable of determining the right to and awarding
redress for a victim of torture and illtreatment, and
ensure that mechanisms and bodies are effective
and accessible to all victims. At the substantive level,
State parties shall ensure that victims of torture or
illtreatment obtain full and effective redress and
reparation including compensation and the means
for as full rehabilitation as possible.14
Therefore, the procedural aspect means the legal instruments
to be utilized to address human rights violations while the substantive
aspect means the holistic and effective reparations for the harm
suffered15. The substantive aspect of the right to an effective remedy
is allencompassing in a way that it consists of restitution,
compensation, rehabilitation and the full scope of other measures that
addresses the particular needs of the victims in consideration of the
gravity of the violations done against them.
A facet of the right to effective remedy is the right to
reparations. As stated in Prosecutor v Thomas Lubanga Dyilo, “the
right to reparations is a wellestablished and basic human right, that
is enshrined in universal and regional human rights treaties, and in
other international instruments…16” Reparation comprises “all types of
redress for victims of human rights violations, all seeking to make
them whole again to the fullest extent possible17.” Even though gross
violations of human rights are irreparable, the objective is to attenuate
the victims’ suffering.
The interment of Marcos at the Libingan ng Mga Bayani is a
violation of the international instruments stated above as it violates
the right to effective remedy of the victims of the Martial Law.
The duty of the State to the Martial Law victims is not to further
prevent human rights violations to the victims but to provide for
reparations. This duty is further recognized in RA 1036818. According
14
UN Committee Against Torture (CAT), General Comment No. 3; Convention Against Torture,
and Other Cruel, Inhuman, or Degrading Treatment or Punishment: implementation of Article 14
by States Parties, 13 December 2012 [hereinafter General Comment No. 3]
15
Ocampo v Enriquez, supra note 4 at 40.
16
Prosecutor v Thomas Lubanga Dyilo, ICC01 (2006).
17
Ocampo v Enriquez, supra note 4 at 41.
18
An Act Providing for Reparation And Recognition of Victims of Human Rights Violations During
The Marcos Regime, Documentation of Said Violations, Appropriating Funds Therefor And for
Other Purposes [Human Rights Victims Reparation and Recognition Act of 2013], R.A. No.
10368, §4 (2), (1978)
Section 2 of RA 10368 states that:
Consistent with the foregoing, it is hereby declared the policy of the State to recognize heroism
and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or
involuntary disappearance and other gross human rights violations committed during the regime
of former President Ferdinand E. Marcos covering the period from September 21, 1972 to
to said statute, both monetary and nonmonetary forms of reparations
should be provided. Not only compensation, but also moral reparation
which involve recognition19. Thus, any acts that degrade the
recognition of the injury inflicted should not be entertained.
The burial of Marcos at the Libingan ng Mga Bayani is
contradictory to the intent of the laws which provide for the
reparations for the victims of Martial Law. The burial honors Marcos,
a dictator and a human rights violator. It signifies the neglect of the
duty of the State to uphold, respect and promote human rights and
creates an injustice towards the victims of the Marcos regime.
3. Former President Marcos did not live a life worthy of
inspiration and emulation.
The Lorenzana Memorandum and the Enriquez orders are
invalid. Section 1 of Republic Act No. 289 states that those who shall
be buried at the Libingan ng mga Bayani must have led lives worthy
of inspiration and emulation. Ferdinand Marcos, even with all his
achievements, unfortunately does not meet this standard.
Jurisprudence itself clearly shows that Ferdinand Marcos does not
even come close to being an individual which one should gain
inspiration from and aspire to emulate. The path set by Ferdinand
Marcos must not be emulated by this and all other generations yet to
come. Ferdinand E. Marcos has been characterized as an
authoritarian by this Court in nine (9) Decisions, 9 Separate Opinions,
and he was called a dictator in 19 Decisions and 16 Separate
Opinions.20
Former President Ferdinand Marcos’ removal from office by the
will of the people through a People Power Revolution, the billions of
pesos worth of illgotten wealth deposited to Swiss accounts, and the
countless number of individuals who were killed, raped, and tortured
during his regime proves that he did not live a life worthy of emulation
and inspiration. The dark days of Martial Law has left a scar on this
nation economically, socially, and politically. Even after several
decades have passed since the days of Martial Law, its effects are
still being felt to this day. The mere fact that he was deposed from his
position by the people themselves shows the population’s disdain for
his character and his rule. As held in jurisprudence, Marcos is liable
both directly and indirectly to several human rights violations and
corruption. Thus, it is clear that Marcos did not live an honorable life
February 25, 1986 and restore the victims’ honor and dignity. The State hereby acknowledges its
moral and legal obligation to recognize and/or provide reparation to said victims and/or their
families for the deaths, injuries, sufferings, deprivations and damages they suffered under the
Marcos regime.
19
Id.
20
Ocampo v Enriquez, GR No. 225973 (2016) (Leonen, J., Dissenting)
that should be a source of inspiration and should be emulated by the
future generations. Marcos is not, and could never be considered a
hero.
4. President Marcos is not qualified to be buried at the Libingan
ng mga Bayani
President Marcos is ineligible to be interred at the Libingan ng
mga Bayani. AFP Regulations G 161375 (Allocation of Cemetery
Plots at the Libingan Ng Mga Bayani ) specifically provides that
personnel who were dishonorably separated/reverted/discharged
from the service are not to be interred at the LNMB.
According to Article II, Section 1 of the 1987 Constitution, the
Philippines is a democratic and republican State. Sovereignty resides
in the people and all government authority emanates from them.21
In February 1986, President Marcos was ousted from office.
The Constitution states that public office is public trust.22 When the
Filipino people lost their trust in the Marcos Administration, they
initiated the People Power Revolution, which is a direct act exercising
the people’s sovereignty over government authority.
This disqualifies Marcos from internment at the Libingan ng
mga Bayani according to AFP Regulations G 161375. When he was
ousted as President of the Philippines, he was also ousted as the
Commander in Chief of the Armed Forces of the Philippines. This
removal from office “is the strongest form of dishonorable discharge
from office since it is meted out by the direct act of the sovereign
people.”23
The respondent’s contention that Marcos was not dishonorably
discharged in accordance with the procedures and guidelines
prescribed in Administrative Discharge Prior to Expiration of Term of
Enlistment24 has no merit. He was ousted by the People Power
Revolution in February 1986. Circular 17 was released in 1987, one
year after Marcos was forcibly removed from office. It cannot be
retroactively applied to him, as the Circular 17 only applies to
incumbent or serving members of the military.
WHEREFORE, premises considered, it is prayed to this
HONORABLE COURT, that judgement be rendered to enjoin the
21
PHIL. CONST. art. 2, § 1
22
PHIL. CONST. art. 11, § 1.
23
Ocampo vs. Enriquez, G.R. No. 225973, Nov. 8, 2016 (J. Carpio, dissenting opinion).
24
Armed Forces of the Philippines, Circular 17, Series of 1987 (Oct. 2, 1987)
orders of President Duterte to bury the former president Ferdinand
Marcos at the Libingan ng Mga Bayani.
Other relief just and equitable is likewise prayed for.
Makati City, December 29, 2017.
Prepared by:
Atty. Troy Combate Atty. Isabelle Corpus
Counsel for the plaintiff Counsel for the plaintiff
Atty. Bea Navarro Atty. Justin Ocampo
Counsel for the plaintiff Counsel for the plaintiff