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Ocampo et al. vs. Enriquez,

G.R. Nos. 225973
8 November 2016.
PERALTA, J,:

FACTS

During the campaign period for 2016 elections, Rodrigo Duterte announced that he would allow
the burial of former President Marcos at the Libingan ng mga Bayani (LNMB). On August 7,
2016 public the Secretary of National Defense Delfin Lorenzana issued a Memorandum to the
Chief of Staff of the Armed Forces of the Philippines (AFP) General Ricardo Visaya in regards to
the interment (Burial) of Marcos at the LNMB to comply with the verbal order of President Duterte.
Two days after, AFP Rear Admiral Ernesto Enriquez issued the directives to the Philippine Army
(PA) in order to provide all the necessary services for the interment of Former President Marcos.

With the foregoing issuance, various petitioners were dissatisfied and filed for several petitions,
prohibitions, and mandamus arguing that the burial of Marcos in LNMB violated laws, that it
condones the abuses during Martial Law, that Marcos was not allowed to be buried in LNMB, and
that the Marcos family has already waived such burial when they entered into an agreement with
the Philippine Government.

ISSUES
(PROCEDURAL)

1.1 ) Is President Duterte’s determination to have the remains of Marcos at the LNMB a
Justiciable Controversy?
1.2 ) Does the petitioner have Locus Standi to file the petition?
1.3 ) Is the doctrine of exhaustion of administrative remedies and hierarchy of courts violated
by the petitioners?
(SUBSTANTIVE)

2.1) Did respondent Secretary of National Defense and AFP Rear Admiral committed grave
abuse of discretion?
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2.2) Is the issuance and implementation of the memorandum and directive violating the
Constitution, domestic, and international laws?
2.3) Does the historical facts, laws that enacted to recover their ill-gotten wealth, and the
pronouncements of the court over his regime null his entitlement as a soldier and former
President eligible for interment at the LNMB?
2.4) Is the burial of Marcos deemed waived due to the agreement between the family of Marcos
and the Philippine government as to the conditions and procedures by which his remains shall be
brought back and interred?

RULING

1.1 NO. President Duterte’s determination to have the remains of Marcos at LNMB is not a
Justiciable Controversy.
The court agrees that the case involves political question that is not justiciable controversy. President
Duterte decided a question of policy based on what he thinks shall promote national hearing and
forgiveness thus, having no taint of grave abuse of discretion, the president’s decision on that is outside
of judicial review.

1.2 NO. The petitioner does not have Locus Standi to file the petition.
The petitioners failed to show that they have suffered or will suffer any direct and personal injury as a
result of the burial of Marcos in the LNMB and unless a person actually sustains or is in danger of
sustaining an injury as a result of an act complained, then the petitioners do not have a legal standing.
The petitioners as well must provide evidence that the issue are of grave national importance but since
it has been more than 27 years since the death of Marcos, the interment would have no effect on political,
economic and other aspects thus, the petitioner failed to prove that there is a threat to their constitutional
rights.

1.3 YES. The petitioners violated administrative remedies and hierarchy of courts.
The petitioners failed to avail first of all the means of administrative process and its probable remedy
available before seeking the intervention of the court exercising its judicial power. In terms of hierarchy of
courts, it is required that the filing should start with the Regional Trial Court (RTC) before the higher courts
which the petitioners fail to recognize.
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2.1 NO. Secretary Lorenza and General Enriquez did not commit grave abuse of discretion
There is only grave abuse of discretion if an act is done against the constitution which was rendered not
present. If the executed acts are whimsically, capriciously, or arbitrarily out of malice, ill will, or
personal bias which was not present in the case as well.

2.2 NO. It does not violate the Constitution, Domestic and International Laws.
The petitioners view the ratification of the 1987 Constitution as a condemnation of the Marcos regime
because it is a “Human Rights Constitution” and is a “Post Dictatorship Charter” but the OSG stated
that the constitution, although a product of history, should not be interpreted as principles remotely
related to Martial Law such as the LNMB Burial proposal. With respect to the provisions of Domestic
Laws, the petitioners failed to present any direct or indirect cause to prohibit Marcos’ burial at LNMB.

2.3 No. Marcos is still liable for interment at the LNMB.

The AFP Regulation 161-375 supersedes past AFP Regulations, wherein under the said regulations, (J)
Former Presidents and (A) Awardees of Medal of Valor are eligible for interment at the LNMB. In the
scenario that we disregard Marcos as the President and Commander In Chief, due to his alleged human
rights crime, we cannot deny that he shall be recognized for the other positions such as military
activities and he held and awards he has received, such as the Medal of Valor award.

2.4 NO. The burial was not waived due to prior agreements.
President Duterte is not bound by the said prior agreement between former President Ramos. As the
present President of the Republic of the Philippines, Duterte is free to amend, revoke, or rescind any
political agreements done by previous administrations. He has the power to determine policies which
he thinks is most effective in carrying out his mandate, based on informed judgment and presumed
wisdom.

Thus, with the facts presented and rulings of the court, there is no legal basis for the said petition
where we can deny Marcos of his rightful place at the LNMB.

SERENO, C.J,. DISSENTING OPINION:

According to Sereno, If the court’s determinant to dismiss the grave abuse of discretion just because there
was no prohibition in the constitution that does not allow Marcos to not be buried in the LNMB then mere
clerks or supervisor of the LNMB can decide on this matter. The Supreme court also needs to recognize
and reject government actions that are contrary to the respect of Human Rights because once the
government violates for what reason it was established then, it forfeits its right to govern thus by then, the
court should intervene and reject the attempt to degrade those rights.
The petitioners contending that this matter is beyond the power of judicial review for being a political
question should not stop the court to review the issue, this is because the new provision (Art. 1 Sec 7 1987
Constitution) has expanded the concept of Judicial review wherein, it gives the Supreme Court to rule upon
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the decisions of the Executive and Legislative departments, and declare them invalid. It is also demonstrated
that that the directive of President Duterte violates constitutions, laws, and policies wherein these laws and
jurisprudence reveal their clear policy of condemning the Martial Law Regime and Marcos which were
clear indictments that the state recognizes his criminal liability for the effect on victims and the massive
plunder. The president also gives effect to the declarations of the Judiciary and Legislature in order to
execute the laws, and he cannot authorize an act that is counter to the letter of spirit of that law. Thus in this
case, paying tribute to an individual who had been condemned by the other two branches of government is
absurd according to Sereno, wherein this controversy wouldn’t have started if it wasn’t for the fact that the
burial would bring him “honor” whether it be as hero, soldier, or former President.
The AFP Regulation 161-375 is not also binding in the court as it does not have any legal authority to select
which person is qualified to be buried in the LNMB. Philippine Veterans Affairs Office (PVAO) is only
authorized to manage and take care of the company and does not extend to determining the persons who
are entitled to be buried because this power is granted to the CONGRESS, who has the power to deal with
public property, including specifying the purpose for which the property may be used. In terms of the
violation of International Laws, the Philippines is obligated to provide remedies and reparation to the
victims of gross human rights. It is emphasized that monetary compensation is not sufficient for the victim,
the state is responsible for prevention of any future human rights violation by guarantees of non-repetition,
public apologies, and changes in various law and practices thus, the burial of Marcos according to Serano
would contravene the duty of the Philippines to provide the latter.
In compliance of the duty of the state to provide symbolic reparations which provides moral reparation,
they need to recognize that the victims of human rights violation under the Marcos regime has also
expressed their objection to the burial of Marcos and asserted that it would constitute a narrative which
confers honor upon him which would subject them to the same hurt, damage, and indignity they have
experienced under the regime. The state is also obliged to combat impunity and preserve memory, which
means that allowing the burial of Marcos would be equal to the disregard of the human rights violation
during his regime, and would sanction the act of impunity wherein the government allowed to bestow an
honor not due to the perpetrator of the violation thus, violating the rights of the victim.
In the said burial of the Marcos in the LNMB, public funds will be used in order to prepare and maintain
the gravesite, as well as, the military honors to be done by the AFP. That being said, we must take into
consideration that these funds and public properties belong to the people and we must ensure that it must
be used properly which promotes social justice, general welfare, and common good. The respondents failed
to prove that the burial serves such purpose and with that being said, it only promotes the private interest
of the Marcos family.
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The court cannot simply disregard the fact of the historical truths during the Marcos regime and just present
the dispute as a matter of military entitlement of a soldier to be buried in the LNMB. Regardless of the
promise to bring healing and national unity, it would be a degrade of the duties of the state to not recognize
the pain of countless victim during the regimes. Wherefore, voting to grant the petitions.

CARPIO, J,. DISSENTING OPINION:

In AFP R 161- 375, It is enumerated that military personnel who were dishonorably
separated/reverted/discharge are not qualified to be buried at the LNMB whereas although Marcos qualifies
as a Medal of Valor Awardee, former President, and the Commander-In-Chief of the AFP, he is ceased to
be qualified in the burial when he was ousted as from Presidency during the People Power Revolution.
Although respondents argue that the disqualifications only apply to military personnel as stated and not
former presidents, it negates the purpose as to why LNMB was created which is to honor Filipino soldiers
who fought for freedom and democracy, and it also favors nonmilitary personnel who will always be
eligible despite committing crimes against humanity. Thus, violating equal protection clause due to the
creation of an unreasonable classifications between civilians and military personnel for the sole purpose of
interment at LNMB.
The interment of Marcos at the LNMB is also contrary to public policy whereas it is defined that “no subject
or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good”
which makes the DND Memorandum as contrary to public goods, because burying Marcos in the grounds
of LNMB, which were establish to show the reverence of the state to those who fought for freedom and
democracy for our country, would extol and exculpate him from his violations against human rights.
Accordingly, I vote to grant the petition.

BRION, J,. CONCURRING OPINION:

The court cannot grant the petition because the issues that were presented are outside our judicial authority
to resolve. The emotions and beliefs of the petitioners should not influence the duties of the members of
the court, as they do not present an actual case or controversy that calls for the exercise of power for judicial
review. Petitioners also directly seek the exercise of our power of judicial review, which cannot be granted
because they failed to establish the necessity to do so since their arguments involves violations and
misapplication of law which are remedied by the Rules of Court for the errors of law.
The expanded jurisdiction granted in the court also affects only the means of invoking judicial review,
which does not change the nature of this power at all. It only means the power of the court to test the validity
of executive and legislative acts for their conformity with the constitution. Thus, in order for the court to
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practice their expanded jurisdiction the petitioner must prove that the decision of the president on the burial
is violating the constitution. The allegations of petitioners on President Duterte’s alleged statutory
violations to grave abuse of discretion are not for review of the Court as these may be placed before the
courts and once the lower courts have rendered their decisions it is the only time it may be elevated to the
higher court by appeal.
In terms of the violation of International Law Obligations, the petitioners still fail to point out any specific
treaty obligation prohibiting Marcos’ Burial at the LNMB or at any other public cemetery. They only
provided principles as their legal bases which are not legally binding obligations nor international
agreements because the states have not agreed to be bound by them. Thus, it cannot be interpreted as
constraints to the President because it proves no basis to nullify his order.

BERSAMIN, J,. CONCURRING OPINION:

President Duterte in his decision to interment the remains of Marcos in the LNMB is a matter that
exclusively pertains to the discretion of the President as Chief Executive, and with the LNMB carrying the
character as a resting place for the war dead and military personnel with the care of AFP has placed it is
under the control of the president. The decision of President Duterte, exercising the discretion upon a matter
as such is beyond the review of court wherein the court must respect the president’s exercise of discretion.
The laws that petitioners have invoked are not relevant to LNMB. For instance, the LNMB is not the
National Pantheon in RA No. 289. The petitioners also failed to provide any provision on the constitution
or in any laws that expressly prohibits Marcos Burial in the LNMB. The AFP R 161-375 also lists those
who are disqualified from having their remains interred whereas Marcos have not violated any since he has
not been separated from the Military service nor convicted of a final judgment of any offense involving
moral turpitude.

PEREZ, J,. CONCURRING OPINION:

The petitioners admit that the determination of the issue, where President Duterte, during his campaign
declared that he will be allowing the burial of Marcos at the LNMB, can be left to the will of the people. It
should also be taken into consideration that during the campaign, it was only Duterte who made a serious
and specific promise of the Interment of Marcos in LNMB, whilst the other four candidates did not give a
clear preference. Thus being said, the votes for the other four cannot count as against the burial. Though, it
is also stated that not all who voted for Duterte favored the burial, but rather determined by his other
platforms, it cannot be questioned then that Duterte did not lose because of his Burial pronouncement. The
election result is a showing that although there may once have been, there is presently no longer a national
damnation for the former President Marcos. Thus, the policy, which has a basis in the result of the election,
cannot be tainted with grave abuse of discretion. Whereas, I vote to dismiss the petitions.
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MENDOZA, J,. CONCURRING OPINION:

There is no Justiciable controversy. His worthiness as a hero is not the issue at hand but rather the decision
of the administration to allow the burial of the remains A political question is not considered justiciable if
there are no constitutionally imposed limits on the power and functions conferred upon the political bodies,
thus the political question doctrine remains operative. Even in cases where matters of policy may be brought
before the court, there must be a showing of grave abuse of discretion, If grave abuse is not established,
then the court will not substitute its judgment. Any act pursuant to faithful execution clause should be
deemed a political question because the President is merely executing the law as it is, as well as that of his
powers are residual powers of the executive, which means that the interment of Marcos was for national
healing, reconciliation, and forgiveness so that our country could move forward in unity far from the spectre
of the martial law regime.
There was no grave abuse of discretion because there is no showing that the acts of the respondents were
tainted with grave abuse of discretion because no violation of constitution or provision of the law was done,
In fact respondents were guided by the laws such as the AFP R 161 375 wherein in the absence of any law
to the contrary, the regulation remains to be the sole basis as to who are qualified to be buried in LNMB.
The court sympathizes with the victims and acknowledges the ordeals they suffered under the martial law
regime which will never be forgotten, and whereas the burial of Marcos will not re write history. The court
however should not resolve the issue in this political controversy. Whereas, I vote to dismiss the petition
and move on.

LEONEN, J,. DISSENTING OPINION:

Given the present state of our constitution, laws, and jurisprudence it is illegal for the remains of Marcos to
be interred because it violates various laws in the constitution. The AFP Regulations are also ultra vires for
violating RA No 289, but SG argues that it does not apply to the LNMB because it is a defunct law. However,
a law cannot be repealed by inaction or tradition, nor can it be repealed by a president. In terms of the
eligibility of burial, it is said under RA No. 289 that those buried in the LNMB must have led lives worthy
of inspiration and emulation whereas Marcos does not meet the standard when evidences show that his
regime establishes a climate of gross human rights violation. Thus, burying the remains of Marcos can be
considered as an effort to conceal the abuses during the regime. The president has other option to select
where Marcos was to be buried and if there were no intention upon Marcos to be buried as a hero then he
should not be buried at the LNMB wherein, the president can allot a portion of public property without
according him the title of “her” since the name of the cemetery clearly conveys that it was named such to
honor and esteem those who are and will be buried there.
The nature of Marcos’ burial at the LNMB contravenes public policy and is inconsistent with the memory
of honoring the Martial Law Victims. The claim that he will only be buried as a solder or as medal of valor
awardee is a fallacy because once the government buries Marcos’ body as a soldier it will also bury and
honor the same body of a human rights violator and dictator. Whereas, I vote to grant the petitions.

CAGUIOA, J,. DISSENTING OPINION:

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The issues of justiciability and political questioned are intertwined because any discussion of the political
question doctrine will draw the concept of judicial power. The Solicitor General also argues that the wisdom
of the President cannot be questioned, but then we have to take into consideration that the presidential
powers is not without limitations. Contrary to the hold that petitioners failed to observe the rules on
hierarchy of courts, and that it must be filed with the RTC however in the case of Diocese of Bacolod v.
COMELEC the court recognized that hierarchy of courts is not an iron clad rule. This there are reasons
which justifies direct resort to this court.
In terms of International laws, the victims have several rights under international law that the stat has the
duty to protect. The right to an effective remedy, the right to be protected from re traumatization, whereas
the victims stated that the interment would reopen wound and re traumatize them. In this regard the
international law has recognized that impunity must be considered as a continued and ongoing form of
tortures and to bury the leader of martial law would act as impunity. The right to truth and the states duty
to preserve memory, wherein the burial of Marcos at the LNMB intended for heroes will not advance the
Philippines obligation to accord the rights of the victims in their right to truth and preserve memory but
rather blur out the country’s history and in the human rights abuses. Lastly is the right to forms of reparation,
wherein it was stated by the respondent that the victims have been taken care of and that provided remedies
and reparation. In other words, the SG says that in the existence of several laws and decision that describes
Marcos as a plunderer and violator already “restores” the dignities and reputation of the victims. Though
we must take into consideration that reparations has a wider scope that includes restitution, compensation,
satisfaction, and guarantees of non-repetition should also be considered. Whereas, for these reasons, I vote
to grant the petitions.