Concurring opinions

MANILA, Philippines – Nine justices of the Supreme Court voted to dismiss the consolidated petitions
against the order of President Rodrigo Duterte to bury former President Ferdinand Marcos at the Libingan
ng mga Bayani.

Majority of the SC magistrates ruled that Duterte did not commit grave abuse of discretion in ordering a
hero's burial for the ousted dictator.

Associate Justices Estela Perlas-Bernabe, Lucas Bersamin, Arturo Brion, Leonardo-De Castro, Mariano
Del Castillo, Jose Mendoza, Diosdado Peralta, Jose Perez, and Presbitero Velasco Jr. voted to dismiss
the petitions.

The SC Public Information Office released the concurring opinions of Bersamin, Brion, Perez and
Mendoza on the Marcos burial cases.

Here's a summary of their main points.

Associate Justice Lucas Bersamin

 The foregoing antecedents render it quite evident to me that the interment of the remains of
President Marcos in the LNMB is a matter that exclusively pertains to the discretion of President Duterte
as the Chief Executive.
 The several laws the petitioner have invoked to prevent the interment are not relevant to the
LNMB.
 AFP regulations list those who are disqualified to have their remains interred in the LNMB:
 Personnel who were dishonorably separated/reverted/discharged from the service.
 Authorized personnel who were convicted by final judgment of an offense involving moral
turpitude.

Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1

Associate Justice Arturo Brion

 Judicial review, even under our Court's expanded jurisdiction, does not empower the Court to
directly pass upon allegations involving violations of statutes.
 The Constitution's "faithful execution" clause cannot be made the basis to question the
Executive's manner of implementing our laws.
 The petitioners failed to specify any treaty obligation prohibiting Marcos' burial at the LNMB.
 The Constitution, while built on the ashes of the Marcos regime, should not be interpreted in a
way that would prevent reconciliation and the country's move towards national unity.
 The necessity of Marcos' burial at the LNMB is a political question that the President has decided,
and is not without support from the Filipino electorate.

Associate Justice Jose Perez

 Whether the policy of healing and reconciliation "over and above the pain and suffering of the
human rights victims" is in grave abuse of executive discretion or not is answered by the evidently
substantial Marcos vote during the fresh and immediately preceding national elections of 2016.
 A Marcos vote came out of the elections, substantial enough to be a legitimate consideration in
the executive policy formulation.
 The redemption of an election pledge and the policy which has basis in the result of the election,
cannot be tainted with grave abuse of discretion.

Associate Justice Jose Mendoza

 Issues involved are truly political questions which are non-justiciable.
 Interment of President Marcos in the LNMB is a discretionary act of President Duterte.
 No grave abuse of discretion
 The Court is not passing in whether President Marcos truly deserves to be buried in the LNMB. It
is merely exercising judicial restraint as the issues at hand are truly political in nature and are best left to
the discretion of the President.

SC: ‘No grave abuse of

discretion’ by Duterte on
Marcos burial
INQUIRER.net / 11:13 AM November 09, 2016

The Supreme Court on Tuesday allowed the hero’s burial for the late
dictator Ferdinand Marcos at the Libingan ng mga Bayani, ruling that
President Rodrigo Duterte did not commit grave abuse of discretion in
ordering Marcos’ interment at the heroes’ cemetery. Junking all petitions
against Duterte’s directive with a vote of 9-5, the high tribunal
maintained that no law prohibits Marcos’ burial at Libingan, and that
President Duterte “acted within the bounds of law and jurisprudence.”

READ:  SC votes, 9-5, for burial of Marcos at Libingan

The ponente of the decision denying the petitions is Associate Justice
Diosdado Peralta. Here’s a summary of the decision as released by the SC
public information office.

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

ADVERTISEMENT

“…(there is ) no clear constitutional or legal basis to hold that there was

grave abuse of discretion amounting to lack or excess of jurisdiction
which would justify the Court to interpose its authority to check and
override an act entrusted to the judgment of another branch. Truly, the
President’s discretion is not totally unfettered. ‘Discretion is not a free-
spirited stallion that runs and roams wherever it pleases but is reined in
to keep it from straying. In its classic formulation, “discretion is not
unconfined and vagrant” but “canalized within banks that keep it from
overflowing.” At bar, President Duterte, through the public respondents
acted within the bounds of law and jurisprudence. Notwithstanding the
call of human rights advocates, the Court must uphold what is legal and
just. And that is not to deny Marcos his rightful place at the (Libingan ng
mga Bayani) LNMB. For even the Framers of our Constitution intend that
full respect for human rights is available at any stage of a person’s
development, from the time he or she becomes a person to the time he or
she leaves this earth.

There are certain things that are better left for history—not this Court—to
adjudge. The Court could only do so much in accordance with the clearly
established rules and principles. Beyond that, it is ultimately for the
people themselves, as the sovereign, to decide, a task that may require the
better perspective that the passage of time provides. In the meantime, the
country must move on and let this issue rest.”

There are certain things that are better left for history—not this Court—
to adjudge. The Court could only do so much in accordance with the
clearly established rules and principles. Beyond that, it is ultimately for
the people themselves, as the sovereign, to decide, a task that may require
the better perspective that the passage of time provides. In the meantime,
the country must move on and let this issue rest.

The Court found that the President committed no grave abuse of

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

Finding that the President’s power of control over the Executive Branch is
a self-executing provision not requiring legislative implementation, the
majority also found that the President is not bound by the 1992
Agreement entered into between former President Fidel V. Ramos and
the Marcos family to have the remains interred in Batac, Ilocos Norte. As
the incumbent, President Duterte is free to amend, revoke, or rescind
political agreements entered into by his predecessors, and to determine
policies which he considers, based on informed judgment and presumed
wisdom, will be most effective in carrying out his mandate.

The Court also found that under the Administrative Code, the President
has the power to reserve for public use and for specific public purposes
any of the lands of the public domain and that the reserved land shall
remain subject to the specific public purpose indicated until otherwise
provided by law or proclamation. It found that there is no law or
executive issuance at present that specifically excludes the land in which
the LNMB is located from the use it was originally intended by the past
Presidents. The majority found that the allotment of a cemetery plot at
the LNMB for former President Marcos as a former President and
Commander-in-Chief, a legislator, a Secretary of National Defense, a
military personnel, a veteran, and a Medal of Valor awardee, whether
recognizing his contributions or simply his status as such, satisfies the
public use requirement. According to the majority, the disbursement of
public funds to cover the expenses incidental to the burial is granted to
compensate him for valuable public services rendered.  In this regard,
the majority also considered that the President’s determination to have
Marcos’s remains interred at LNMB was inspired by his desire for
national healing and reconciliation, stating that:
“Presumption of regularity in the performance of official duty prevails
over petitioners’ highly disputed factual allegation that, in the guise of
exercising a presidential prerogative, the Chief Executive is actually
motivated by utang na loob (debt of gratitude)`and bayad utang
(payback) to the Marcoses. As the purpose is not self-evident, petitioners
have the burden of proof to establish the factual basis of their claim. They
failed. Even so, this Court cannot take cognizance of factual issues since
We are not a trier of facts.”

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

“Petitioners did not dispute that Marcos was a former President and
Commander-in-Chief, a legislator, a Secretary of National Defense, a
military personnel, a veteran, and a Medal of Valor awardee. For his
alleged human rights abuses and corrupt practices, we may disregard
Marcos as a President and Commander-in-Chief, but we cannot deny him
the right to be acknowledged based on the other positions he held or the
awards he received. In this sense, We agree with the proposition that
Marcos should be viewed and judged in his totality as a person. While he
was not all good, he was not pure evil either. Certainly, just a human who
erred like us.”

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

“Hence, it cannot be conveniently claimed that Marcos’ ouster from the

presidency during the EDSA Revolution is tantamount to his dishonorable
separation, reversion or discharge from the military service. The fact that
the President is the Commander-in-Chief of the AFP under the 1987
Constitution only enshrines the principle of supremacy of civilian
authority over the military. Not being a military person who may be
prosecuted before the court martial, the President can hardly be deemed
‘dishonorably separated/reverted/discharged from the service’ as
contemplated by AFP Regulations G 161-1375. Dishonorable discharge
through a successful revolution is an extra-constitutional and direct
sovereign act of the people which is beyond the ambit of judicial review,
let alone a mere administrative regulation.

It is undeniable that former President Marcos was forced out of office by

the people through the so-called EDSA Revolution. Said political act of the
people should not be automatically given a particular legal meaning
other than its obvious political consequence—that of ousting him as
president. To do otherwise would lead the Court to the treacherous and
perilous path of having to make choices from multifarious inferences or
theories arising from the various acts of the people. It is not the function
of the Court, for instance, to divine the exact implications or significance
of the number of votes obtained in elections, or the message from the
number of participants in public assemblies. Worse, the Court may be
misled by the noise of a boisterous crowd, drowning the message of the
silent (or silenced) majority. If the Court is not to fall into the pitfalls of
getting embroiled in political and oftentimes emotional, if not
acrimonious, debates, it must remain steadfast in abiding by its
recognized guiding starts—clear constitutional and legal rules—not by
the uncertain, ambiguous and confusing messages from the actions of the
people.”
The Court also disagreed with the argument that Marcos was disqualified
to be buried at the LNMB because he had not been convicted of crimes
involving moral turpitude. Relying on the presumption of innocence, the
majority stated that “(d)espite all these ostensibly persuasive arguments,
the fact remains that Marcos was not convicted by final judgment of any
offense involving moral turpitude.” The majority also stated that “(t)he
various cases cited by petitioners, which were decided with finality by
courts here and abroad, have no bearing in this case since they were
merely civil in nature; hence, (they) cannot and do not establish moral
turpitude.” YG

5 reasons
Te cited five reasons the magistrates voted to uphold Mr. Duterte’s order based on the
summary of the decision penned by Justice Diosdado M. Peralta:
The majority of the justices did not find any grave abuse of discretion by the President
in ordering the burial of Marcos at Libingan because this was done under the mandate
of Article VII, Section 17 of the Constitution to ensure the faithful execution of laws.
Mr. Duterte is not bound by the agreement between then President Fidel V. Ramos
and the Marcos family to have the remains interred in Batac, Ilocos Norte.
The President is empowered under the Administrative Code to reserve the cemetery
plot for Marcos until a law is passed stating otherwise.
Despite Marcos’ alleged human rights abuses and corrupt practices, the tribunal could
not deny his right to be acknowledged based on the other positions he held or the
awards he received. His being a former President, military personnel, veteran and
Medal of Valor awardee “satisfies the public requirement.”
The majority of justices argued that Marcos was honorably discharged and recognized
as a retired veteran. This is contrary to claims that Marcos was “dishonorably
discharged” as this only applied to the military under the Articles of War or those in
active service.
Marcos has not been convicted of any crimes involving moral turpitude. The majority
said that the various cases cited by petitioners were all civil cases and had no bearing
on the case.