Ocampo v. Enriquez

SUPREME COURT REPORTS ANNOTATED VOLUME 807 25/01/2019, 11)00 PM
G.R. No. 225973. November 8, 2016.*
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. DELA FUENTE,** 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.
G.R. No. 225984. November 8, 2016.*
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
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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
_______________
* EN BANC.
** Rene A.V. Saguisag, et al. filed a petition for certiorari-in-
intervention.
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Ocampo vs. Enriquez
MARCOS, respondents.
G.R. No. 226097. November 8, 2016.*
LORETTA ANN PARGAS-ROSALES, HILDA B.

NARCISO, AIDA F. SANTOS-MARANAN, 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.
G.R. No. 226116. November 8, 2016.*
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.
G.R. No. 226117. November 8, 2016.*
ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN

BUENAAGUA, JOANNE ROSE SACE LIM, JUAN
ANTONIO RAROGAL MAGALANG, petitioners, vs.
SECRETARY OF NATIONAL DEFENSE
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Ocampo vs. Enriquez

DELFIN N. LORENZANA, AFP CHIEF OF STAFF

RICARDO R. VISAYA, ADMINISTRATOR OF THE
PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO
G. CAROLINA, respondents.
G.R. No. 226120. November 8, 2016.*
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.
G.R. No. 226294. November 8, 2016.*
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.
Constitutional Law; Judicial Department; Judicial Review; It is

well-settled that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by
the Court unless the following requisites for judicial inquiry are
present: (a) there must be an actual case or controversy calling for
the exercise of judicial power; (b) the person challenging the act must
have the standing to question the validity of the subject act or
issuance; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be
the very lis mota of the case.·It is well-settled that no question
involving the constitutionality or validity of a law or governmental
act may be heard and decided by the Court unless the following

requisites for judicial inquiry are present: (a) there must be an

actual case or controversy calling for the exercise of judicial power;
(b) the person challenging the act must have the standing to
question the validity of the subject act or issuance; (c) the question
of constitutionality must be raised at the earliest
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Ocampo vs. Enriquez
opportunity; and (d) the issue of constitutionality must be the

very lis mota of the case. In this case, the absence of the first two
requisites, which are the most essential, renders the discussion of
the last two superfluous.
Same; Same; Same; An „actual case or controversy‰ is one which
involves a conflict of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute.·An „actual case or
controversy‰ is one which involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution
as distinguished from a hypothetical or abstract difference or
dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and
jurisprudence.
Same; Same; Same; Political Questions; President DuterteÊs
decision to have the remains of Marcos interred at the Libingan ng
mga Bayani (LNMB) involves a political question that is not a
justiciable controversy.·The Court agrees with the OSG that
President DuterteÊs decision to have the remains of Marcos interred
at the LNMB involves a political question that is not a justiciable
controversy. In the exercise of his powers under the Constitution
and the Executive Order (E.O.) No. 292 (otherwise known as the
Administrative Code of 1987) to allow the interment of Marcos at
the LNMB, which is a land of the public domain devoted for
national military cemetery and military shrine purposes, President
Duterte decided a question of policy based on his wisdom that it
shall promote national healing and forgiveness.

Locus Standi; Locus standi requires that a party alleges such

personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions.·Defined as a right of appearance in a court of justice on
a given question, locus standi requires that a party alleges such
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult
constitutional questions.
Same; Petitioners, who filed their respective petitions for

certiorari, prohibition and mandamus, in their capacities as
citizens, human rights violations victims, legislators, members of the
Bar and taxpayers, have no legal standing to file such petitions
because they failed to show that they have suffered or will suffer
direct and personal injury as a result of the interment of Marcos at
the Libingan ng mga Bayani (LNMB).·Petitioners, who filed their
respective petitions for certiorari, prohibition and mandamus, in
their capacities as citizens,
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human rights violations victims, legislators, members of the

Bar and taxpayers, have no legal standing to file such petitions
because they failed to show that they have suffered or will suffer
direct and personal injury as a result of the interment of Marcos at
the LNMB.
Doctrine of Exhaustion of Administrative Remedies; Under the
doctrine of exhaustion of administrative remedies, before a party is
allowed to seek the intervention of the court, one should have availed
first of all the means of administrative processes available.·Under
the doctrine of exhaustion of administrative remedies, before a
party is allowed to seek the intervention of the court, one should
have availed first of all the means of administrative processes
available. If resort to a remedy within the administrative

machinery can still be made by giving the administrative officer

concerned every opportunity to decide on a matter that comes
within his jurisdiction, then such remedy should be exhausted first
before the courtÊs judicial power can be sought.
Hierarchy of Courts; The Regional Trial Court (RTC) is not just
a trier of facts, but can also resolve questions of law in the exercise of
its original and concurrent jurisdiction over petitions for certiorari,
prohibition and mandamus, and has the power to issue restraining
order and injunction when proven necessary.·While direct resort to
the Court through petitions for the extraordinary writs of certiorari,
prohibition and mandamus are allowed under exceptional cases,
which are lacking in this case, petitioners cannot simply brush
aside the doctrine of hierarchy of courts that requires such petitions
to be filed first with the proper Regional Trial Court (RTC). The
RTC is not just a trier of facts, but can also resolve questions of law
in the exercise of its original and concurrent jurisdiction over
petitions for certiorari, prohibition and mandamus, and has the
power to issue restraining order and injunction when proven
necessary.
Constitutional Law; Judicial Department; Judicial Review;
While the Constitution is a product of our collective history as a
people, its entirety should not be interpreted as providing guiding
principles to just about anything remotely related to the Martial Law
period such as the proposed Marcos burial at the Libingan ng mga
Bayani (LNMB).·As the Office of the Solicitor General (OSG)
logically reasoned out, while the Constitution is a product of our
collective history as a people, its entirety should not be interpreted
as providing guiding principles to just about anything remotely
related to the Martial Law period such as the proposed Marcos
burial at the LNMB.
Republic Act No. 289; National Pantheon; For the perpetuation
of their memory and for the inspiration and emulation of this
generation and of genera-
228

Ocampo vs. Enriquez

tions still unborn, Republic Act (RA) No. 289 authorized the
construction of a National Pantheon as the burial place of the mortal
remains of all the Presidents of the Philippines, national heroes and
patriots.·For the perpetuation of their memory and for the
inspiration and emulation of this generation and of generations still
unborn, R.A. No. 289 authorized the construction of a National
Pantheon as the burial place of the mortal remains of all the
Presidents of the Philippines, national heroes and patriots. It also
provided for the creation of a Board on National Pantheon to
implement the law.
Same; Same; The National Pantheon does not exist at present.
To date, the Congress has deemed it wise not to appropriate any
funds for its construction or the creation of the Board on National
Pantheon.·The National Pantheon does not exist at present. To
date, the Congress has deemed it wise not to appropriate any funds
for its construction or the creation of the Board on National
Pantheon. This is indicative of the legislative will not to pursue, at
the moment, the establishment of a singular interment place for the
mortal remains of all Presidents of the Philippines, national heroes,
and patriots.
Constitutional Law; Judicial Department; The proposed
interment is not equivalent to the consecration of MarcosÊ mortal
remains. The act in itself does not confer upon him the status of a
„hero.‰·Also, the Court shares the view of the OSG that the
proposed interment is not equivalent to the consecration of MarcosÊ
mortal remains. The act in itself does not confer upon him the
status of a „hero.‰ Despite its name, which is actually a misnomer,
the purpose of the LNMB, both from legal and historical
perspectives, has neither been to confer to the people buried there
the title of „hero‰ nor to require that only those interred therein
should be treated as a „hero.‰
Same; Same; Republic Act No. 10368; With its victim-oriented
perspective, our legislators could have easily inserted a provision
specifically proscribing MarcosÊ interment at the Libingan ng mga
Bayani (LNMB) as a „reparation‰ for the Human Rights Violations
Victims (HRVVs), but they did not.·This Court cannot subscribe to
petitionersÊ logic that the beneficial provisions of R.A. No. 10368 are
not exclusive as it includes the prohibition on MarcosÊ burial at the
LNMB. It would be undue to extend the law beyond what it actually
contemplates. With its victim-oriented perspective, our legislators
could have easily inserted a provision specifically proscribing

MarcosÊ interment at the LNMB as a „reparation‰ for the HRVVs,

but they did not. As it is, the law is silent and should remain to be
so. This Court cannot read into the law what is simply not there.
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Ocampo vs. Enriquez
Same; Executive Department; Our nationÊs history will not be

instantly revised by a single resolve of President Duterte, acting
through the public respondents, to bury Marcos at the Libingan ng
mga Bayani (LNMB).·Contrary to petitionersÊ postulation, our
nationÊs history will not be instantly revised by a single resolve of
President Duterte, acting through the public respondents, to bury
Marcos at the LNMB. Whether petitioners admit it or not, the
lessons of Martial Law are already engraved, albeit in varying
degrees, in the hearts and minds of the present generation of
Filipinos. As to the unborn, it must be said that the preservation
and popularization of our history is not the sole responsibility of the
Chief Executive; it is a joint and collective endeavor of every
freedom-loving citizen of this country.
Libingan ng mga Bayani; The descriptive words „sacred and
hallowed‰ refer to the Libingan ng mga Bayani (LNMB) as a place
and not to each and every mortal remains interred therein. Hence,
the burial of Marcos at the LNMB does not diminish said cemetery
as a revered and respected ground.·Assuming that P.D. No. 105 is
applicable, the descriptive words „sacred and hallowed‰ refer to the
LNMB as a place and not to each and every mortal remains
interred therein. Hence, the burial of Marcos at the LNMB does not
diminish said cemetery as a revered and respected ground. Neither
does it negate the presumed individual or collective „heroism‰ of the
men and women buried or will be buried therein.
Constitutional Law; Executive Department; President Duterte is
not bound by the alleged 1992 Agreement between former President
Ramos and the Marcos family to have the remains of Marcos
interred in Batac, Ilocos Norte.·The presidential power of control
over the Executive Branch of Government is a self-executing

provision of the Constitution and does not require statutory

implementation, nor may its exercise be limited, much less
withdrawn, by the legislature. This is why President Duterte is not
bound by the alleged 1992 Agreement between former President
Ramos and the Marcos family to have the remains of Marcos
interred in Batac, Ilocos Norte.
Libingan ng mga Bayani; The allotment of a cemetery plot at
the Libingan ng mga Bayani (LNMB) for 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.·At present,
there is no law or executive issuance specifically excluding the land
in which the LNMB is located from the use it was originally
intended by the past Presidents. The allotment of a cemetery plot at
the LNMB for Marcos as a former President and Commander-in-
Chief, a legislator, a Secretary of National Defense, a mili-
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Ocampo vs. Enriquez
tary personnel, a veteran, and a Medal of Valor awardee,

whether recognizing his contributions or simply his status as such,
satisfies the public use requirement. The disbursement of public
funds to cover the expenses incidental to the burial is granted to
compensate him for valuable public services rendered.
Constitutional Law; Executive Department; President DuterteÊs
determination to have MarcosÊ remains interred at the Libingan ng
mga Bayani (LNMB) was inspired by his desire for national healing
and reconciliation.·President DuterteÊs determination to have
MarcosÊ remains interred at the LNMB was inspired by his desire
for national healing and reconciliation. Presumption of regularity in
the performance of official duty prevails over petitionersÊ 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.
Libingan ng mga Bayani; In the absence of any executive
issuance or law to the contrary, the Armed Forces of the Philippines
(AFP) Regulations G 161-375 remains to be the sole authority in
determining who are entitled and disqualified to be interred at the
Libingan ng mga Bayani (LNMB).·In the absence of any executive
issuance or law to the contrary, the AFP Regulations G 161-375
remains to be the sole authority in determining who are entitled
and disqualified to be interred at the LNMB. Interestingly, even if
they were empowered to do so, former Presidents Corazon C.
Aquino and Benigno Simeon C. Aquino III, who were themselves
aggrieved at the Martial Law, did not revise the rules by expressly
prohibiting the burial of Marcos at the LNMB.
Same; 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.·
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.
Same; The fact remains that Marcos was not convicted by final
judgment of any offense involving moral turpitude.·Despite all
these ostensibly persuasive arguments, the fact remains that
Marcos was not convicted by final judgment of any offense involving
moral turpitude. No less than the 1987 Constitution man-
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dates that a person shall not be held to answer for a criminal

offense without due process of law.

Same; Marcos was honorably discharged from military service.

Philippine Veterans Affairs Office (PVAO) expressly recognized him
as a retired veteran pursuant to Republic Act (RA) No. 6948, as
amended.·Likewise, Marcos was honorably discharged from
military service. PVAO expressly recognized him as a retired
veteran pursuant to R.A. No. 6948, as amended. Petitioners have
not shown that he was dishonorably discharged from military
service under AFP Circular 17, Series of 1987 (Administrative
Discharge Prior to Expiration of Term of Enlistment) for violating
Articles 94, 95 and 97 of the Articles of War.
Same; It cannot be conveniently claimed that MarcosÊ ouster
from the presidency during the Epifanio de los Santos Avenue
(EDSA) Revolution is tantamount to his dishonorable separation,
reversion or discharge from the military service.·It cannot be
conveniently claimed that MarcosÊ 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.
Same; Constitutional Law; Judicial Department;
Notwithstanding the call of human rights advocates, the Court must
uphold what is legal and just. And that is not to deny Marcos of his
rightful place at the Libingan ng mga Bayani (LNMB).·At bar,
President Duterte, through the public respondents, acted within the
bounds of the 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 of his rightful place at the
LNMB.
SERENO, CJ., Dissenting Opinion:

View that the Supreme Court (SC) cannot refuse to review an issue
simply because it is alleged to be a political question.·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.
Same; Same; Same; View that the directive of President Duterte
to allow the burial of Marcos at the Libingan ng mga Bayani
(LNMB) contravenes the constitution, laws, policies, and
jurisprudence.·The directive of President
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Ocampo vs. Enriquez
Duterte to allow the burial of Marcos at the LNMB 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.
Same; Same; View that there 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.·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.
Same; Same; View that 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.·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.
Same; Same; View that Marcos may have evaded a criminal
proceeding by choosing to go on exile after the Epifanio de los Santos
Avenue (EDSA) Revolution, the atrocities committed against the
Filipino people during his regime must be remembered.·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.
Same; Same; View that statutes and jurisprudence condemning
Marcos and his regime effectively prohibit the incumbent President
from granting him any form of tribute or honor.·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 PresidentÊs 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.‰
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Libingan ng mga Bayani; View that whether Marcos is to be

buried in the Libingan ng mga Bayani (LNMB) as a hero, soldier, or
former President is of little difference. The most important fact is
that the burial would accord him honor.·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 LNMB as a hero, soldier, or former
President is of little difference. The most important fact is
that the burial would accord him honor.
Same; View that the Armed Forces of the Philippines (AFP) does
not have the authority to select which persons are qualified to be
buried in the Libingan ng mga Bayani (LNMB).·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 LNMB. For
this reason, the enumeration contained in AFP Regulations 161-375
must be deemed invalid.
Same; View that authority of the Philippine Veterans Affairs
Office (PVAO) to administer, maintain and develop the Libingan ng
mga Bayani (LNMB) 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.·The authority of the PVAO
to administer, maintain and develop the LNMB 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.
Same; View that the purported discretion of the President to
determine the persons who may be interred in the Libingan ng mga
Bayani (LNMB) must be considered limited by statutes and judicial
decisions.·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. In the same manner, the purported
discretion of the President to determine the persons who may be
interred in the LNMB must be considered limited by statutes and
judicial decisions.
Same; View that the residual power of the President cannot be
used to justify acts that are contrary to the Constitution and the
laws.·The residual power of the President cannot be used to justify
acts that are contrary to the Constitu-
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tion 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.
Same; View that allowing the proposed burial of Marcos in the
Libingan ng mga Bayani (LNMB) would be a clear violation of
international law obligations.·Allowing the proposed burial of
Marcos in the LNMB would be a clear violation of the foregoing
international law obligations. Consequently, the planned interment
must be enjoined in light of Article II, Section 11 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.
Constitutional Law; Judicial Department; View that the
statutes, issuances, and rules enacted by the different branches of
government to promote human rights cannot suffice for the purpose
of fulfilling the stateÊs obligation to the human rights victims of
former President Marcos.·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 stateÊs 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.
Libingan ng mga Bayani; View that the burial of Marcos would
be more than a simple matter of the interment of his remains,
because it would involve his victimsÊ right to symbolic reparations.·
The burial of Marcos would be more than a simple matter of the
interment of his remains, because it would involve his victimsÊ 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.
Same; View that for the President to allow the burial would
constitute a clear contravention of international human rights law
and would amount to grave abuse of discretion.·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.

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Same; View that to permit the burial would be to sanction

violations of international obligations and to allow the state to
disregard the latterÊs duty to provide effective remedies to victims of
human rights violations, particularly its duty to provide symbolic
reparations and to combat impunity.·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 LNMB
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 latterÊs duty to
provide effective remedies to victims of human rights violations,
particularly its duty to provide symbolic reparations and to combat
impunity.
Same; View that the burial would 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.·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.
Same; View that the burial in the Libingan ng mga Bayani
(LNMB) 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.·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 LNMB 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.
Same; View that respondents fail to explain how the burial
would lead to national unity and healing.·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.
Same; View that the burial would ultimately benefit only the
Marcos family. No general advantage is derived by the public from
the interment.·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.
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Ocampo vs. Enriquez
Same; View that 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.·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.
Same; View that 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.
·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.
Same; View that 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.·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.
CARPIO, J., Dissenting Opinion:
Libingan ng mga Bayani; View that Marcos is not qualified to

be interred at the Libingan ng mga Bayani (LNMB), and thus the
Memorandum dated 7 August 2016 of Department of National
Defense (DND) Secretary Lorenzana was issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.·I vote to
grant the petitions on the ground that Marcos is not qualified to be
interred at the LNMB, and thus the Memorandum dated 7 August
2016 of DND Secretary Lorenzana was issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Same; View that assuming Marcos was qualified to be interred
at the Libingan ng mga Bayani (LNMB) as a Medal of Valor
Awardee, and as a former President of the Philippines and
Commander-in-Chief, he ceased to be qualified when he was ousted
from the Presidency by the nonviolent People Power Revolution on 25
February 1986.·Assuming that Marcos was qualified to be interred
at the LNMB as a Medal of Valor Awardee, and as a former
President of the Philippines and Commander-in-Chief, he ceased to
be qualified when he was
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ousted from the Presidency by the nonviolent People Power

Revolution on 25 February 1986.
Same; Dishonorable Discharge; View that there is nothing more
dishonorable for a President than being forcibly removed from office
by the direct sovereign act of the people.·The removal of Marcos
from the Presidency, therefore, was a direct exercise of the

sovereign act of the Filipino people that is „beyond judicial

scrutiny.‰ It cannot be said that this removal was an „honorable‰
one. Truly, there is nothing more dishonorable for a President than
being forcibly removed from office by the direct sovereign act of the
people.
Same; Same; View that Circular No. 17, issued more than one
(1) year after such separation from office, cannot be made to apply
retroactively to Marcos.·Marcos was separated from service with
finality, having been forcibly ousted by the Filipino people on 25
February 1986. Circular 17, issued more than one year after
such separation from office, cannot be made to apply retroactively
to Marcos. When Circular 17 was issued, Marcos had already been
finally discharged, terminated, and ousted · as President and
Commander-in-Chief · by the Filipino people.
Same; Same; View that even assuming Circular No. 17 can be
given retroactive effect, Marcos was still dishonorably discharged
from service since Circular No. 17 cannot prevail over the sovereign
act of the Filipino people.·Even assuming that Circular 17 can be
given retroactive effect, Marcos was still dishonorably discharged
from service since Circular 17 cannot prevail over the sovereign act
of the Filipino people. Marcos was ousted by the direct act of the
Filipino people. The sovereign people is the ultimate source of all
government powers.
Same; View that there is no substantial distinction between the
military and civilian personnel, for purposes of interment at the
Libingan ng mga Bayani (LNMB), that would warrant applying the
disqualifications to military personnel and not to civilian personnel.
·In this case, however, there is no substantial distinction between
the military and civilian personnel, for purposes of interment at the
LNMB, that would warrant applying the disqualifications to
military personnel and not to civilian personnel.
Same; View that interring Marcos on the hallowed grounds of
the Libingan ng mga Bayani (LNMB), which was established to
show „the nationÊs esteem and reverence‰ for those who fought for
freedom and democracy for our country, extols Marcos and
exculpates him from human rights violations.·Interring Marcos on
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Ocampo vs. Enriquez
the hallowed grounds of the LNMB, which was established to

show „the nationÊs esteem and reverence‰ for those who fought for
freedom and democracy for our country, extols Marcos and
exculpates him from human rights violations. This starkly negates
the „moral and legal obligation‰ of the State to recognize the
sufferings and deprivations of the human rights victims under the
dictatorship of Marcos.
Same; View that MarcosÊ interment at the Libingan ng mga
Bayani (LNMB) will cause undue injury particularly to human
rights victims of the Marcos regime, as well as the sovereign people
who ousted Marcos during the People Power Revolution.·MarcosÊ
interment at the LNMB will cause undue injury particularly to
human rights victims of the Marcos regime, as well as the sovereign
people who ousted Marcos during the People Power Revolution.
MarcosÊ interment at the LNMB is thus contrary to public policy.
Same; Dishonorable Discharge; View that MarcosÊ dishonorable
discharge serves to convert his burial into a private affair of the
Marcos family. Hence, no public purpose is served by interring his
remains at the Libingan ng mga Bayani (LNMB).·Government
funds or property shall be spent or used solely for public purposes.
Since Marcos was ousted by the sovereign act of the Filipino people,
he was dishonorably discharged from office. Consequently, MarcosÊ
dishonorable discharge serves to convert his burial into a private
affair of the Marcos family. Hence, no public purpose is served by
interring his remains at the LNMB.
BRION, J., Separate Concurring Opinion:
Constitutional Law; Judicial Department; View that for the

Court to directly exercise its expanded jurisdiction, the petitioners
carry the burden of proving, prima facie, that the PresidentÊs
decision to inter Marcos at the Libingan ng mga Bayani (LNMB)
violates the Constitution.·In the context of the present case, for the
Court to directly exercise its expanded jurisdiction, the petitioners
carry the burden of proving, prima facie, that the PresidentÊs
decision to inter Marcos at the LNMB violates the Constitution.

Same; Same; Judicial Review; View that petitionersÊ allegations

equating President DuterteÊs alleged statutory violations (when he
issued his burial order) to grave abuse of discretion, are not the
proper subject of judicial review under the CourtÊs direct exercise of
its expanded jurisdiction.·In these lights, I find that the
petitionersÊ allegations equating President DuterteÊs alleged
statutory violations (when he issued his burial order) to grave abuse
of discretion, are not
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Ocampo vs. Enriquez
the proper subject of judicial review under the CourtÊs direct

exercise of its expanded jurisdiction.
Same; Judicial Review; View that the faithful execution clause
does not allow litigants to question the manner by which the
President implements a law.·The petitionersÊ insistence that the
burial orderÊs violation of various laws amounts to a constitutional
violation involving the faithful execution clause, rests on a very
tenuous interpretation of this clause that stretches it to its breaking
point. The faithful execution clause does not allow litigants to
question · as a constitutional violation · the manner by which the
President implements a law.
Same; Judicial Department; Libingan ng mga Bayani; View
that petitioners failed to point to any specific treaty obligation
prohibiting MarcosÊ burial at the Libingan ng mga Bayani (LNMB)
or at any other public cemetery.·While I agree that these
international agreements (except for the UDHR, which is a
nonbinding document with provisions attaining the status of
customary international law) had been ratified by the Philippine
government and hence have the force and effect of law in the
Philippines, the petitioners failed to point to any specific treaty
obligation prohibiting MarcosÊ burial at the LNMB or at any other
public cemetery.
Same; Republic Act No. 10368; Libingan ng mga Bayani; View

that the burial order does not have the effect of rewriting
jurisprudence and excusing the ills of the Marcos administration;
neither does it amend Republic Act (RA) No. 10368.·It must be
considered that the burial order does not have the effect of
rewriting jurisprudence and excusing the ills of the Marcos
administration; neither does it amend Republic Act No. 10368
(„Human Rights Victims Reparation and Recognition Act of 2013‰),
a law that had been enacted as part of the PhilippinesÊ compliance
with its obligations in the ICCPR and CAT.
Same; Judicial Department; View that Article II, Section 27 and
Article XI, Section 1 of the 1987 Constitution cannot be interpreted
to prohibit former President MarcosÊ interment at the Libingan ng
mga Bayani (LNMB).·Neither can we interpret Article II, Section
27 and Article XI, Section 1 to prohibit former President MarcosÊ
interment at the LNMB. To be sure, these are provisions that
cannot be faulted as they enshrine honesty, integrity, and
accountability in the public service, and require government
officials to exercise their functions „with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism and justice, and
lead modest lives.‰
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Ocampo vs. Enriquez
Same; Same; View that the 1987 ConstitutionÊs enactment after

the Marcos regime collapsed does not suggest and cannot be
translated into an implied command preventing his burial at the
Libingan ng mga Bayani (LNMB) or in a shrine of national
significance.·The Constitution was undeniably forged out of the
ashes of the Marcos regime. Its enactment after the Marcos regime
collapsed, however, does not suggest and cannot be translated into
an implied command preventing his burial at the LNMB or in a
shrine of national significance. Had such prohibition been the
intent, the ConstitutionÊs transitory provisions would have
specifically so provided in the manner these provisions incorporated
terms that the framers wanted to implement within intended and

foreseeable time frames.

Libingan ng mga Bayani; View that if we do rule in favor of the
burial of former President Marcos at the Libingan ng mga Bayani
(LNMB), we do not dishonor those who believe they suffered under
his regime.·Thus, if we do rule in favor of the burial of former
President Marcos at the LNMB, we do not thereby dishonor those
who believe they suffered under his regime. Nor are we unmindful
of the laws crafted in their favor; we considered these laws but they
are simply not the laws primarily relevant and applicable to the
issue before us · the interment of former President Marcos at the
LNMB.
View that the wisdom of or need for the interment of former
President Marcos at the Libingan ng mga Bayani (LNMB) is a
policy determination that is outside the CourtÊs jurisdiction to pass
upon or interfere with as a matter of law.·The wisdom of or need
for the interment of former President Marcos at the LNMB is a
political question that our President decided after an assessment of
the thoughts and sentiments of the people from all the regions in
our country; it is a policy determination that is outside the CourtÊs
jurisdiction to pass upon or interfere with as a matter of law.
Same; Same; Same; View that the burial of Marcos had been a
campaign promise strengthens the nature of former President
MarcosÊ burial at the Libingan ng mga Bayani (LNMB) as a
political question.·That the burial of Marcos had been a campaign
promise strengthens the nature of former President MarcosÊ burial
at the LNMB as a political question. Voters knew of his plan to bury
Marcos at the LNMB at the time he campaigned, and might have
voted for him because or regardless of this plan.
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BERSAMIN, J., Concurring Opinion:

Constitutional Law; Executive Department; Judicial Review;

View that the interment of the remains of President Marcos in the
Libingan ng mga Bayani (LNMB) is a matter that exclusively
pertains to the discretion of President Duterte as the Chief Executive.
·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 character of the LNMB as the
resting place for the war dead and other military personnel under
the care and control of the AFP has placed the LNMB under the
control of the President.
Same; Same; Libingan ng mga Bayani; View that President
Marcos · being a former President of the Philippines, a Medal of
Valor awardee, a veteran of World War II, a former Senator and
Senate President, and a former Congressman · is one of those
whose remains are entitled to be interred in the Libingan ng mga
Bayani (LNMB) under the terms of Armed Forces of the Philippines
(AFP) Regulations G 161-375.·President Marcos · being a former
President of the Philippines, a Medal of Valor awardee, a veteran of
World War II, a former Senator and Senate President, and a former
Congressman · is one of those whose remains are entitled to be
interred in the LNMB under the terms of AFP Regulations G 161-
375. President Duterte was far from whimsical or arbitrary in his
exercise of discretion.
Same; Same; Same; View that the Libingan ng mga Bayani
(LNMB) is not the same as the National Pantheon.·The Republic
Memorial Cemetery was reserved as the final resting place for the
war dead of World War II, but President Magsaysay renamed it to
LNMB on October 27, 1954. The history of the LNMB refutes the
petitionersÊ reliance on Republic Act No. 289. Verily, the LNMB is
not the same as the National Pantheon.
Same; Same; Same; View that the petitioners have not cited any
specific provision of either the Constitution or other existing laws
that would expressly prohibit the interment in the Libingan ng mga
Bayani (LNMB) of the remains of President Marcos.·The
petitioners have not laid out any legal foundation for directly
testing the issuance of the challenged executive issuances. They
have not cited any specific provision of either the Constitution or
other existing laws that would expressly prohibit the interment in
the LNMB of the remains of one like President Marcos.
Same; Same; Same; View that none of the disqualifications
listed in Armed Forces of the Philippines (AFP) Regulations G 161-

375 can apply to the late
242

Ocampo vs. Enriquez
President Marcos.·None of the disqualifications can apply to

the late President Marcos. He had not been dishonorably separated
or discharged from military service, or convicted by final judgment
of any offense involving moral turpitude.
Same; Same; Same; View that the ouster from the Presidency by
the 1986 People Power revolution is not the same as being
dishonorably discharged because the discharge must be from the
military service.·The contention that he had been ousted from the
Presidency by the 1986 People Power revolution was not the same
as being dishonorably discharged because the discharge must be
from the military service. In contrast, and at the risk of being
redundant, I remind that he had been a two-term President of the
Philippines, a Medal of Valor awardee, a veteran of World War II, a
former Senator and Senate President, and a former Congressman,
by any of which he was qualified to have his remains be interred in
the LNMB.
PEREZ, J., Separate Opinion:
Constitutional Law; Executive Department; Judicial Review;

View that President Rodrigo R. Duterte did not gravely abuse his
discretion, was neither whimsical nor capricious when upon
assumption of the office to which he was elected he forthwith
proceeded to implement his election promise to have the remains of
the late President Ferdinand E. Marcos buried in the Libingan ng
mga Bayani (LNMB).·I join the opinion to dismiss the
consolidated petitions for the issuance in their favor and against the
respondents, of the special writ of certiorari. President Rodrigo R.
Duterte did not gravely abuse his discretion, was neither whimsical

nor capricious when upon assumption of the office to which he was

elected he forthwith proceeded to implement his election promise to
have the remains of the late President Ferdinand E. Marcos buried
in the Libingan ng mga Bayani.
Same; Same; Same; Libingan ng mga Bayani; View that the
Marcos burial issue was made public and was resolved through a
most political process, a most appropriate process: the election of the
President of the Republic.·The petitioners objected against the
publicly announced Marcos Libingan burial; they protested the
pronouncement. Indeed the issue was made public and was resolved
through a most political process, a most appropriate process: the
election of the President of the Republic.
Same; Same; Same; Same; View that the election result is a
showing that, while there may have once been, there is no longer a
national damnation of President Ferdinand E. Marcos; that the
„constitutionalization‰ of the sin and its
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Ocampo vs. Enriquez
personification is no longer of national acceptance.·The

election result is a showing that, while there may have once been,
there is no longer a national damnation of President Ferdinand E.
Marcos; that the „constitutionalization‰ of the sin and its
personification is no longer of national acceptance. A Marcos vote
came out of the elections, substantial enough to be a legitimate
consideration in the executive policy formulation.
MENDOZA, J., Separate Opinion:
Libingan ng mga Bayani; View that the interment of President

Marcos in the Libingan ng mga Bayani (LNMB) will not erase the
atrocities committed during his authoritarian rule.·Ferdinand
Edralin Marcos (President Marcos) was not, and will never be, a

hero. His interment in the Libingan ng mga Bayani (LNMB) will

not erase the atrocities committed during his authoritarian rule.
His place in history will ultimately be judged by the people.
Same; Constitutional Law; Executive Department; Judicial
Review; View that the decision of President Duterte to allow
President Marcos to be interred in the Libingan ng mga Bayani
(LNMB) is beyond the ambit of judicial review.·Guided by the
foregoing, it is my considered view that the decision of President
Duterte to allow President Marcos to be interred in the LNMB is
beyond the ambit of judicial review.
Same; Same; Same; Same; Political Questions; View that any
act pursuant to the faithful execution clause should be deemed a
political question as the President is merely executing the law as it
is.·The Executive is given much leeway in ensuring that our laws
are faithfully executed. Thus, any act pursuant to the faithful
execution clause should be deemed a political question as the
President is merely executing the law as it is. There is no question
as to the legality of the act but on its wisdom or propriety.
Same; Same; Same; Same; View that the authority of President
Duterte to allow the interment of President Marcos in the Libingan
ng mga Bayani (LNMB) is derived from the residual powers of the
executive.·Moreover, the authority of President Duterte to allow
the interment of President Marcos in the LNMB is derived from the
residual powers of the executive.
Same; Same; Same; View that the interment of President

Marcos in the Libingan ng mga Bayani (LNMB) will not bestow
upon him the title of a hero.·It should be stressed, however, that
the interment of President Marcos in the LNMB will not bestow
upon him the title of a hero. It will not erase from the
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Ocampo vs. Enriquez
memories of the victims what have been etched in their minds

· that President Marcos was a heartless dictator and rapacious

plunderer of our national economy and patrimony.

Same; Same; Same; View that the decision to allow the
interment of President Marcos in the Libingan ng mga Bayani
(LNMB) is not contrary to Republic Act (RA) No. 289 and RA No.
10368.·Moreover, the decision to allow the interment of President
Marcos in the LNMB is not contrary to R.A. No. 289 and R.A. No.
10368. As explained by the public respondents, the National
Pantheon mentioned in R.A. No. 289 was quite different from the
LNMB. As such, the standards claimed by the petitioners in R.A.
No. 289 are not applicable to the LNMB.
Same; Same; Same; View that the interment of President
Marcos in the Libingan ng mga Bayani (LNMB) is not repugnant to
the avowed policy of Republic Act (RA) No. 10368, which seeks to
recognize the heroism of human rights violation victims during
martial law.·The interment of President Marcos in the LNMB is
not repugnant to the avowed policy of R.A. No. 10368, which seeks
to recognize the heroism of human rights violation victims (HRVV)
during martial law.
LEONEN, J., Dissenting Opinion:
Libingan ng mga Bayani; View that President DuterteÊs verbal

orders to carry out the interment of Ferdinand E. Marcos at the
Libingan ng mga Bayani (LNMB) are invalid because they violate
Republic Act (RA) No. 289.·The PresidentÊs verbal orders, which
were the basis for the issuance of the questioned orders of public
respondents, are invalid because they violate Republic Act No. 289.
Republic Act No. 289 was never repealed.
Same; View that President DuterteÊs verbal orders do not
provide for a definite and complete reason for transferring the
remains of Former President Ferdinand E. Marcos from its
originally intended site as shown in the agreement signed by Former
Secretary Rafael Alunan III and Imelda Marcos to the Libingan ng
mga Bayani (LNMB).·The PresidentÊs verbal orders do not provide
for a definite and complete reason for transferring the remains of
Former President Ferdinand E. Marcos from its originally intended
site as shown in the agreement signed by Former Secretary Rafael
Alunan III (Former Secretary Alunan) and Imelda Marcos to the
Libingan ng mga Bayani. It was whimsical, capricious, and an

abuse of discretion, and could have been done only to accommodate

the private interest of the Heirs of Marcos.
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Same; View that that Republic Act (RA) No. 289 was ignored in
the past does not give legal justification for the present
administration to likewise violate the law.·Presidents who do not
follow the law do not repeal that law. Laws can only be repealed by
a subsequent law. Again, that Republic Act No. 289 was ignored in
the past does not give legal justification for the present
administration to likewise violate the law.
Same; View that Ferdinand E. Marcos does not meet the
standard in Section 1 of Republic Act (RA) No. 289 that those buried
at the Libingan ng mga Bayani (LNMB) must have led lives worthy
of „inspiration and emulation.‰·Under Section 1 of Republic Act
No. 289, those buried at the Libingan ng mga Bayani must have led
lives worthy of „inspiration and emulation.‰ Ferdinand E. Marcos
does not meet this standard.
Same; View that jurisprudence, Republic Act (RA) No. 10368,
the findings of the National Historical Commission, and the actual
testimony of petitioners clearly show that the life of Ferdinand E.
Marcos either as President or as a soldier is bereft of inspiration.·
The CourtÊs findings in a catena of cases in its jurisprudence, a
legislative determination in Republic Act No. 10368, the findings of
the National Historical Commission, and the actual testimony of
petitioners during the Oral Arguments clearly show that the life of
Ferdinand E. Marcos either as President or as a soldier is bereft of
inspiration.
Same; View that burying the remains of Ferdinand E. Marcos at
the Libingan ng mga Bayani (LNMB) violates Republic Act (RA) No.
10368 as the act may be considered as an effort to conceal abuses
during the Marcos regime or to conceal the effects of Martial Law.·
Burying the remains of Ferdinand E. Marcos at the Libingan ng

mga Bayani violates Republic Act No. 10368 as the act may be
considered as an effort „to conceal abuses during the Marcos
regime‰ or to „conceal . . . the effects of Martial Law.‰ Its symbolism
is unmistakable. It undermines the recognition of his complicity.
Clearly, it is illegal.
Same; View that if there was no intention to bestow any
recognition upon Ferdinand E. Marcos as a hero, then he should not
be buried at the Libingan ng mga Bayani (LNMB).·If there was no
intention to bestow any recognition upon Ferdinand E. Marcos as a
hero, then he should not be buried at the Libingan ng mga Bayani.
If the President wanted to allot a portion of public property to bury
Ferdinand E. Marcos without according him the title of a hero, the
President had other options.
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Ocampo vs. Enriquez
Same; View that the transfer of Ferdinand E. MarcosÊ remains

is a violation of the fundamental statutory policy of recognition of
the human rights violations committed during the Marcos regime.·
The transfer of Ferdinand E. MarcosÊ remains violates the policy of
full and public disclosure of the truth. It produces an inaccurate
account of the violations committed. It will fail to educate all sectors
of society and all generations of the human rights violations
committed under his watch. It is a violation of the fundamental
statutory policy of recognition of the human rights violations
committed during the Marcos regime.
Same; View that if the government buries and honors Ferdinand
E. MarcosÊ body as the body of a former soldier, it will, at the same
time, be burying and honoring the body of a human rights violator,
dictator, and plunderer.·When a person is buried, the whole person
is buried, not just parts of him or her. Thus, if government buries
and honors Ferdinand E. MarcosÊ body as the body of a former
soldier, it will, at the same time, be burying and honoring the body
of a human rights violator, dictator, and plunderer. It is impossible
to isolate the President, soldier, and Medal of Valor awardee from

the human rights violator, dictator, and plunderer.

Same; View that allowing Ferdinand E. MarcosÊ burial under
the pretense of the PresidentÊs policy of promotion of national healing
and forgiveness lowers the victimsÊ dignity and takes away from
them their right to heal in their own time.·Allowing Ferdinand E.
MarcosÊ burial under the pretense of the PresidentÊs policy of
promotion of national healing and forgiveness lowers the victimsÊ
dignity and takes away from them their right to heal in their own
time. Allowing the Marcos burial on the premise of national healing
and forgiveness is a compulsion from the State for the victims and
the Filipino People to forgive their transgressor without requiring
anything to be done by the transgressor or his successors, and
without even allowing the victims to be provided first the
reparations granted to them by law.
Same; View that to allow the Marcos burial is diametrically
opposed to Republic Act (RA) No. 10368.·To allow the Marcos
burial is diametrically opposed to Republic Act No. 10368. The
stated policies are clear. These must be applied, and applied in its
entirety · in accordance with its spirit and intent.
Same; View that there is no legitimate public purpose for setting
aside public land at the Libingan ng mga Bayani (LNMB) for
Ferdinand E. Marcos.·Considering Ferdinand E. MarcosÊ
disreputable role in Philippine history, there can be no recognition
that serves the public interest for him. There is no legiti-
247
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Ocampo vs. Enriquez
mate public purpose for setting aside public land at the

Libingan ng mga Bayani · definitely a national shrine · for him.
Same; Constitutional Law; Judicial Department; Judicial

Review; View that the theory that a campaign promise becomes
policy is an abdication of the judiciaryÊs duty to uphold the
Constitution and its laws.·In other words, under our constitutional
order, we elect a President subject to the Constitution and the

current state of the law. We do not, through the process of elections,

anoint a king. Moreover, the theory that a campaign promise
becomes policy is an abdication of the judiciaryÊs duty to uphold the
Constitution and its laws.
Same; Same; Same; Same; View that there is an actual case or
controversy in this case as it involves a conflict of legal rights arising
from actual facts, which have been properly established through
evidence or judicial notice, and which provide the natural
limitations upon judicial interpretation of the statute.·There is an
actual case or controversy in this case as it involves a conflict of
legal rights arising from actual facts, which have been properly
established through evidence or judicial notice, and which provide
the natural limitations upon judicial interpretation of the statute.
Same; Same; Same; Same; View that the rule on locus standi
has been relaxed when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest.
·In any case, the rule on standing has been relaxed „when the
matter is of transcendental importance, of overreaching significance
to society, or of paramount public interest.‰
Same; Same; Same; Same; View that the exceptions to the
doctrine of hierarchy of courts and exhaustion of administrative
remedies are present in this petition.·These exceptions are present
in these consolidated cases. First, these cases involve reviewing the
act of another constitutional organ, that is, the PresidentÊs exercise
of discretion in allowing Ferdinand E. MarcosÊ burial at the
Libingan ng mga Bayani. Second, these Petitions raise
constitutional questions that would be better decided by this Court,
as well as issues relating to public policy that may be beyond the
competence of the lower courts. These cases are likewise of first
impression, and no jurisprudence yet exists on this matter. Thus,
the Petitions cannot be dismissed by invoking the doctrine of
hierarchy of courts and exhaustion of administrative remedies.
Same; Same; Same; View that to suggest that Ferdinand E.
Marcos was just a human who erred like us is an affront to those
who suffered under the Marcos regime.·These were not accidents
that humans, like us, commit. These
248


Ocampo vs. Enriquez
were deliberate and conscious acts by one who abused his

power. To suggest that Ferdinand E. Marcos was „just a human who
erred like us‰ is an affront to those who suffered under the Marcos
regime.
Same; Same; View that with the transfer of the MarcosÊ remains
to the sacred grounds of the Libingan ng mga Bayani (LNMB) will
permanently cause untold anguish to Martial Law victims.·The
reality is that the retelling of the story of Martial Law is agonizing
to many who went through the ordeal. Reliving it for eternity, with
the transfer of the remains of he who is responsible for the ordeal to
the sacred grounds of the Libingan ng mga Bayani (LNMB), will
permanently cause untold anguish to the victims.
Same; Same; View that the burial of Ferdinand E. Marcos at
the Libingan ng mga Bayani (LNMB) is not an act of national
healing.·The burial of Ferdinand E. Marcos at the Libingan ng
mga Bayani (LNMB) is not an act of national healing. It cannot be
an act of healing when petitioners, and all others who suffered, are
not consulted and do not participate. Rather, it is an effort to forget
our collective shame of having failed to act as a People as many
suffered. It is to contribute to the impunity for human rights abuses
and the plunder of our public trust.
Same; Same; View that Ferdinand E. MarcosÊ remains, by law,
cannot be transferred to the Libingan ng mga Bayani (LNMB).·
Ferdinand E. MarcosÊ remains, by law, cannot be transferred to the
Libingan ng mga Bayani. Ferdinand E. Marcos is not a „bayani.‰
CAGUIOA, J., Dissenting Opinion:
Constitutional Law; Judicial Department; View that President

DuterteÊs decision to have the remains of President Marcos interred
at the Libingan ng mga Bayani (LNMB) does not raise a political
question.·The ponencia holds that President DuterteÊs decision to
have the remains interred at the LNMB involves a political
question that is not a justiciable controversy. I disagree.
Same; Same; Locus Standi; Political Questions; View that

victims of human rights violations during martial law have the legal
standing to question the internment and burial of former President
Marcos at the Libingan ng mga Bayani (LNMB).·Victims of human
rights violations during martial law have the requisite legal
standing to file their respective petitions. Their personal and direct
interest to question the interment and burial of former President
Marcos at the LNMB rests on their right to a full and effective
remedy and entitlement
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Ocampo vs. Enriquez
to monetary and nonmonetary reparations guaranteed by the

State under the Constitution, domestic and international laws.
Same; Taxation; TaxpayerÊs Suit; View that the public character
of the Libingan ng mga Bayani (LNMB) and the general
appropriations for its maintenance, preservation and development
satisfy the requirements for a taxpayerÊs suit.·Petitioners also have
standing as citizens-taxpayers. The public character of the LNMB
and the general appropriations for its maintenance, preservation
and development satisfy the requirements for a taxpayerÊs suit.
Same; Legislative Department; View that Members of Congress
have no personality to maintain the suit because they failed to show
how the PresidentÊs directives to have the remains of former
President Marcos interred at the Libingan ng mga Bayani (LNMB)
usurps or infringes upon their legislative functions.·Members of
Congress in the Lagman petition and petitioner De Lima have no
personality to maintain the suit as legislators because they failed to
allege, much less show, how the PresidentÊs directive to have the
remains of former President Marcos interred at the LNMB usurps
or infringes upon their legislative functions.
Libingan ng mga Bayani; Certiorari; Jurisdiction; Locus
Standi; Supreme Court; View that under the CourtÊs expanded
jurisdiction, the validity of the PresidentÊs directive to have the
remains of former President Marcos interred and buried at the
Libingan ng mga Bayani (LNMB) and the legality of the assailed

Memorandum and Directive issued by public respondents, are

proper subjects of a petition for certiorari and prohibition.·
Therefore, that the assailed act and/or issuances do not involve the
exercise of judicial, quasi-judicial or ministerial functions is of no
moment. Under the CourtÊs expanded jurisdiction, the validity of
the PresidentÊs directive to have the remains of former President
Marcos interred and buried at the LNMB and the legality of the
assailed Memorandum and Directive issued by public respondents,
are proper subjects of a petition for certiorari and prohibition.
Supreme Court; Jurisdiction; View that there are special and
compelling reasons attendant in the case which justify direct resort
to this Court.·Contrary to the ponenciaÊs holding, there are special
and compelling reasons attendant in the case at bar which justify
direct resort to this Court. Apart from the fact that the issues
presented here are of transcendental importance, as earlier
explained, they are being brought before the Court for the first
time. As no jurisprudence yet exists on the matter, it is best that
this case be decided by this Court.
250

Ocampo vs. Enriquez
Doctrine of Exhaustion of Administrative Remedies; View that

the doctrine of exhaustion of administrative remedies is not absolute
as there are numerous exceptions laid down by jurisprudence.·The
doctrine of exhaustion of administrative remedies is not absolute as
there are numerous exceptions laid down by jurisprudence.
Constitutional Law; Libingan ng mga Bayani; View that the
order to inter the remains of former President Marcos in the
Libingan ng mga Bayani (LNMB) is contrary to the Constitution,
the law, and several executive issuances that have the force of law, as
well as the public policy that the Constitution, the said laws, and
executive issuances espouse and advance.·I believe that the
petitions are with merit, and that the order to inter the remains of
former President Marcos in the LNMB is contrary to the
Constitution, the law, and several executive issuances that have the

force of law, as well as the public policy that the Constitution, the
said laws, and executive issuances espouse and advance.
Same; Public Purpose; View that any disbursement of public
funds in connection with the interment will not be for a public
purpose, as it is principally for the advantage of a private party.·
This admission by the Solicitor General indicates to me that the
interment is primarily to favor the Marcos family, and serves no
legitimate public purpose. Therefore, the first requirement for the
legitimate exercise of the PresidentÊs power to reserve has not been
met. Moreover, any disbursement of public funds in connection with
the interment will not be for a public purpose, as it is principally for
the advantage of a private party · separate from the motivation for
the same.
Libingan ng mga Bayani; Public Purpose; View that the
interment cannot be justified by the power to reserve because it is not
a legitimate public purpose, and is not consistent with the national
shrine purposes of Libingan ng mga BayaniÊs (LNMBÊs) reservation.
·Moreover, the interment cannot be justified by the power to
reserve because it is not a legitimate public purpose, and is not
consistent with the national shrine purposes of LNMBÊs
reservation. For the same reasons that the interment serves
no legitimate public purpose, no use of public property or
public funds can be made to support it.
Same; Presidency; View that while the order to inter former
President Marcos in the Libingan ng mga Bayani (LNMB) may be
considered an exercise of the PresidentÊs power of control, this is
necessarily subject to the limitations found in the Constitution, laws
and executive issuances.·While the order to inter former President
Marcos in the LNMB may be considered an exercise of the
PresidentÊs power of control, this is necessarily subject to the
limitations similarly applica-
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Ocampo vs. Enriquez

ble to his subordinate, the Philippine Veterans Affairs Office

(„PVAO‰) or the Quartermaster General · found in the
Constitution, laws and executive issuances.
Same; National Pantheon; View that the land on which the
National Pantheon was to be built refers to a discrete parcel of land
that is different from site of the Libingan ng mga Bayani (LNMB).·
I agree that RA 289 is not applicable. Reading RA 289 together with
Proclamation No. 431 leads to no other conclusion than that the
land on which the National Pantheon was to be built refers to a
discrete parcel of land that is different from site of the LNMB.
Constitutional Law; Libingan ng mga Bayani; View that the
interment of former President Marcos constitutes a violation of the
physical, historical and cultural integrity of the Libingan ng mga
Bayani (LNMB) as a national shrine, which the State has the
obligation to conserve.·Verily, the interment of former
President Marcos constitutes a violation of the physical,
historical and cultural integrity of the LNMB as a national
shrine, which the State has the obligation to conserve.
Same; Dishonorable Discharge; View that when Marcos was
forcibly taken out of office and removed as a President and a
Commander-in-Chief by the sovereign act of the people expressed in
the Epifanio de los Santos Avenue (EDSA) Revolution, it can
reasonably be said that he was dishonorably separated as a
President and dishonorably discharged as a Commander-in-Chief.·
When Marcos was forcibly taken out of office and removed as a
President and a Commander-in-Chief by the sovereign act of the
people expressed in the EDSA Revolution · which is an act higher
than an act of a military tribunal or of a civilian administrative
tribunal · then it can reasonably be said that he was dishonorably
separated as a President and dishonorably discharged as a
Commander-in-Chief.
Same; Libingan ng mga Bayani; Presidency; View that whether
as a soldier or as a President, former President Marcos does not
deserve a resting place together with the heroes at the Libingan ng
mga Bayani (LNMB).·His soldier persona cannot be separated
from his private citizen cum former President persona, and vice
versa, unless by some miracle one can be excised from the other.
Either the entire remains of former President Marcos are allowed to
be buried in the LNMB or none of his parts. Whether as a soldier or
as a President, former President Marcos does not deserve a resting
place together with the heroes at the LNMB.

252

Ocampo vs. Enriquez
Libingan ng mga Bayani; Human Rights Abuses; View that

burial of former President Marcos in the Libingan ng mga Bayani
(LNMB) would blur his real role in the countryÊs history and in the
human rights abuses that the human rights victims suffered under
his martial law regime.·The burial of former President Marcos in
the LNMB which, as already explained, is not a mere cemetery but
a memorial for heroes, will certainly not further or advance the
PhilippinesÊ obligation to accord HRVVs their right to truth and
preserve memory. Indeed, such an act would blur the real role of
former President Marcos in the countryÊs history and in the human
rights abuses that the HRVVs suffered under his martial law
regime.
Constitutional Law; Libingan ng mga Bayani; Republic Act No.
10368; View that there is sufficient basis to rule that the burial of
former President Marcos in the Libingan ng mga Bayani (LNMB)
will violate certain international law principles and obligations,
which the Philippines has adopted and must abide by, and Republic
Act (RA) No. 10368 which transformed the principle and State policy
expressed in Article II, Section 11 of the Constitution.·There is
sufficient basis to rule that the burial of former President Marcos in
the LNMB will violate certain international law principles and
obligations, which the Philippines has adopted and must abide by,
and RA 10368 which transformed the principle and State policy
expressed in Article II, Section 11 of the Constitution which states:
„The State values the dignity of every human person and
guarantees full respect for human rights.‰
SPECIAL CIVIL ACTIONS in the Supreme Court.

Certiorari, Prohibition, Certiorari-in-Intervention, and
Mandamus.
The facts are stated in the opinion of the Court.
Edre U. Olalia and Maria Cristina Yambot, et al. for
petitioners in G.R. No. 225973.

John Michael A. Bernardo, et al. for petitioners in G.R.

No. 225984.
Ibarra M. Guttierez III, et al. for petitioners in G.R.
No. 226097.
Reody Anthony M. Balisi, et al. for petitioners in G.R.
No. 226116.
Hyacinth E. Rafael-Antonio for the heirs of Ferdinand
E. Marcos.
Jesus Nicardo M. Falcis III for petitioners in G.R. No.
226117.
Algamar A. Latiph for petitioner in G.R. No. 226120.
253
VOL. 807, NOVEMBER 8, 2016 253

Ocampo vs. Enriquez
PERALTA, J.:
In law, as much as in life, there is need to find

closure. Issues that have lingered and festered for so
long and which unnecessarily divide the people and
slow the path to the future have to be interred. To
move on is not to forget the past. It is to focus on the
present and the future, leaving behind what is better
left for history to ultimately decide. The Court finds
guidance from the Constitution and the applicable
laws, and in the absence of clear prohibition against
the exercise of discretion entrusted to the political
branches of the Government, the Court must not
overextend its readings of what may only be seen as
providing tenuous connection to the issue before it.
Facts
During the campaign period for the 2016 Presidential

Election, then candidate Rodrigo R. Duterte (Duterte)
publicly announced that he would allow the burial of
former President Ferdinand E. Marcos (Marcos) at the

Libingan ng mga Bayani (LNMB). He won the May 9, 2016

election, garnering 16,601,997 votes. At noon of June 30,
2016, he formally assumed his office at the Rizal Hall in
the Malacañan Palace.
On August 7, 2016, public respondent Secretary of
National Defense Delfin N. Lorenzana issued a
Memorandum to the public respondent Chief of Staff of the
Armed Forces of the Philippines (AFP), General Ricardo R.
Visaya, regarding the interment of Marcos at the LNMB, to
wit:
Subject: Interment of the late Former President Ferdinand

Marcos at LNMB
Reference: Verbal Order of President Rodrigo Duterte on July 11,

2016.
In compliance to (sic) the verbal order of the President to

implement his election campaign promise to have the remains of
the late former President Ferdinand E. Marcos be interred at the
Libingan ng mga Bayani, kindly undertake all the necessary
planning and preparations to facilitate the coordination of all
agencies concerned
254

Ocampo vs. Enriquez
specially the provisions for ceremonial and security requirements.

Coordinate closely with the Marcos family regarding the date of
interment and the transport of the late former PresidentÊs remains
from Ilocos Norte to the LNMB.
The overall OPR for this activity will [be] the PVAO since the
LNMB is under its supervision and administration. PVAO shall
designate the focal person for this activity who shall be the overall
overseer of the event.
Submit your Implementing Plan to my office as soon as possible.1

On August 9, 2016, respondent AFP Rear Admiral

Ernesto C. Enriquez issued the following directives to the
Philippine Army (PA) Commanding General:
SUBJECT: Funeral Honors and Service
TO: Commanding General, Philippine Army

Headquarters, Philippine Army
Fort Bonifacio, Taguig City
Attn: Assistant Chief of Staff for RRA, G9
1. Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP

dated 14 July 1992, provide services, honors and other
courtesies for the late Former President Ferdinand
E. Marcos as indicated:
[x] Vigil -Provide vigil-;
[x] Bugler/Drummer;
[x] Firing Party;
[x] Military Host/Pallbearers;
[x] Escort and Transportation;
[x] Arrival/Departure Honors;
2. His remains lie in state at Ilocos Norte.

3. Interment will take place at the Libingan ng mga
Bayani, Ft. Bonifacio, Taguig City. Date: TBAL.
4. Provide all necessary military honors accorded
for a President.
_______________
1 See Annex „A‰ of Petition for Prohibition of Lagman, et al., G.R. No.
225984.
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Ocampo vs. Enriquez

5. POC: Administrator, PVAO BY COMMAND OF

GENERAL VISAYA.2
Dissatisfied with the foregoing issuance, the following

were filed by petitioners:
1. Petition for Certiorari and Prohibition3 filed by
Saturnino Ocampo and several others,4 in their capacities
as human rights advocates or human rights violations
victims as defined under Section 3(c) of Republic Act (R.A.)
No. 10368 (Human Rights Victims Reparation and
Recognition Act of 2013).
2. Petition for Certiorari-in-Intervention5 filed by Rene
A.V. Saguisag, Sr. and his son,6 as members of the Bar and
human rights lawyers, and his grandchild.7
3. Petition for Prohibition8 filed by Representative Edcel
C. Lagman, in his personal capacity, as member of the
House of Representatives and as Honorary Chairperson of
Families of Victims of Involuntary Disappearance (FIND),
a duly-registered corporation and organization of victims
and families of enforced disappearance, mostly during the
martial law regime of the former President Marcos, and
several others,9 in their official capacities as duly-elected
Congressmen of the House of Representatives of the
Philippines.
_______________
2 See Annex „B,‰ id. (Emphasis in the original)

3 G.R. No. 225973.
4 TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO
P. ILAGAN, NERI JAVIER COLMENARES, MARIA CAROLINA P.
ARAULLO, M.D., SAMAHAN NG EX-DETAINEES LABAN SA
DETENSYON AT ARESTO (SELDA) represented by DIONITO
CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL
ROSARlO, FELIX C. DALISAY and DANILO M. DELA FUENTE.
5 G.R. No. 225973.
6 RENE A. Q. SAGUISAG, JR.
7 RENE A. C. SAGUISAG, III.
8 G.R. No. 225984.
9 FIND COCHAIRPERSON, NILDA L. SEVILLA, REP. TEDDY
BRAWNER BAGUILAT, JR., REP. TOMASITO S. VILLARIN, REP.
EDGAR R. ERICE and REP. EMMANUEL A. BILLONES.

256

Ocampo vs. Enriquez
4. Petition for Prohibition10 filed by Loretta Ann Pargas-

Rosales, former Chairperson of the Commission on Human
Rights, and several others,11 suing as victims of State-
sanctioned human rights violations during the martial law
regime of Marcos.
5. Petition for Mandamus and Prohibition12 filed by
Heherson T. Alvarez, former Senator of the Republic of the
Philippines, who fought to oust the dictatorship of Marcos,
and several others,13 as concerned Filipino citizens and
taxpayers.
6. Petition for Certiorari and Prohibition14 filed by Zaira
Patricia B. Baniaga and several others,15 as concerned
Filipino citizens and taxpayers.
7. Petition for Certiorari and Prohibition16 filed by
Algamar A. Latiph, former Chairperson of the Regional
Human Rights Commission, Autonomous Region in Muslim
Mindanao, by himself and on behalf of the Moro17 who are
victims of human rights during the martial law regime of
Marcos.
_______________
10 G.R. No. 226097.

11 HILDA B. NARCISO, AIDA F. SANTOS-MARANAN, JO-ANN Q.
MAGLIPON, ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA
P. BAWAGAN, MILA D. AGUILAR, MINERVA G. GONZALES, MA.
CRISTINA V. RODRIGUEZ, LOUUE G. CRISMO, FRANCISCO E.
RODRIGO, JR., LIWAYWAY D. ARCE and ABDULMARI DE LEON
IMAO, JR.
12 G.R. No. 226116.
13 JOEL C. LAMANGAN, FRANCIS X. MAGLAPUS, 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.
14 G.R. No. 226117.
15 JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, and
JUAN ANTONIO RAROGAL MAGALANG.
16 G.R. No. 226120.
17 Defined as native peoples who have historically inhabited
Mindanao, Palawan and Sulu, who are largely of the Islamic Faith,
under Sec. 4, par. d.[8], RA 9710 otherwise known as THE MAGNA CARTA OF
WOMEN.
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Ocampo vs. Enriquez
8. Petition for Certiorari and Prohibition18 filed by Leila

M. De Lima as member of the Senate of the Republic of the
Philippines, public official and concerned citizen.
Issues
Procedural
1. Whether President DuterteÊs determination to have the

remains of Marcos interred at the LNMB poses a
justiciable controversy.
2. Whether petitioners have locus standi to file the
instant petitions.
3. Whether petitioners violated the doctrines of
exhaustion of administrative remedies and hierarchy of
courts.
Substantive
1. Whether the respondents Secretary of National

Defense and AFP Rear Admiral committed grave abuse of
discretion, amounting to lack or excess of jurisdiction, when
they issued the assailed memorandum and directive in

compliance with the verbal order of President Duterte to

implement his election campaign promise to have the
remains of Marcos interred at the LNMB.
2. Whether the Issuance and implementation of the
assailed memorandum and directive violate the
Constitution, domestic and international laws, particularly:
(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II,
Section 1 of Article III, Section 17 of Article VII, Section 1
of Article XI, Section 3(2) of Article XIV, and Section 26 of
Article XVIII of the 1987 Constitution;
(b) R.A. No. 289;
(c) R.A. No. 10368;
(d) AFP Regulation G 161-375 dated September 11, 2000;
(e) The International Covenant on Civil and Political
Rights;
_______________
18 G.R. No. 226294.
258

Ocampo vs. Enriquez
(f) 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‰ of the United Nations
(U.N.) General Assembly; and
(g) The „Updated Set of Principles for Protection and
Promotion of Human Rights through Action to Combat
Impunity‰ of the U.N. Economic and Social Council;
3. Whether historical facts, laws enacted to recover ill-
gotten wealth from the Marcoses and their cronies, and the
pronouncements of the Court on the Marcos regime have
nullified his entitlement as a soldier and former President
to interment at the LNMB.
4. Whether the Marcos family is deemed to have waived

the burial of the remains of former President Marcos at the

LNMB after they entered into an agreement with the
Government of the Republic of the Philippines as to the
conditions and procedures by which his remains shall be
brought back to and interred in the Philippines.
Opinion
The petitions must be dismissed.
Procedural Grounds
Justiciable controversy
It is well-settled that no question involving the

constitutionality or validity of a law or governmental act
may be heard and decided by the Court unless the
following requisites for judicial inquiry are present: (a)
there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the
subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity; and (d) the issue
of constitutionality must be the very lis mota of the case.19
_______________
19 Belgica v. Ochoa, Jr., 721 Phil. 416, 518-519; 710 SCRA 1, 89

(2013).
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Ocampo vs. Enriquez
In this case, the absence of the first two requisites, which

are the most essential, renders the discussion of the last
two superfluous.20
An „actual case or controversy‰ is one which involves a

conflict of legal rights, an assertion of opposite legal claims,

susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute.21 There must
be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence.22
Related to the requisite of an actual case or controversy is
the requisite of „ripeness,‰ which means that something
had then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened
injury to itself as a result of the challenged action.23
Moreover, the limitation on the power of judicial review to
actual cases and controversies carries the assurance that
the courts will not intrude into areas committed to the
other branches of government.24 Those areas pertain to
questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to
the legislative or executive branch of the government.25 As
they are concerned with questions of policy and issues
dependent upon the wisdom, not legality of a particular
measure,26 political questions used to be beyond the ambit
of judicial review. However, the scope of the political
question doctrine has been limited by Section 1 of Article
VIII of the 1987 Constitution when it vested in the
judiciary the power to determine whether or not there has
been grave
_______________
20 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism

Council, 646 Phil. 452, 471; 632 SCRA 146, 167 (2010).
21 Supra note 19 at p. 519; p. 90, citing Province of North Cotabato v.
Government of the Republic of the Philippines Peace Panel on Ancestral
Domain (GRP), 589 Phil. 387, 481; 568 SCRA 402, 450 (2008).
22 Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain (GRP), id.
23 Supra note 19 at pp. 519-520; p. 90.
Philippines Peace Panel on Acestral Domain (GRP), supra.
25 Tañada v. Cuenco, 100 Phil. 1101 (1957); Belgica v. Ochoa, Jr.,
supra note 19 at p. 526; pp. 286-289.

26 Id.; id.
260

Ocampo vs. Enriquez
abuse of discretion amounting to lack or excess of

jurisdiction on the part of any branch or instrumentality of
the Government.
The Court agrees with the OSG that President DuterteÊs
decision to have the remains of Marcos interred at the
LNMB involves a political question that is not a justiciable
controversy. In the exercise of his powers under the
Constitution and the Executive Order (E.O.) No. 292
(otherwise known as the Administrative Code of 1987) to
allow the interment of Marcos at the LNMB, which is a
land of the public domain devoted for national military
cemetery and military shrine purposes, President Duterte
decided a question of policy based on his wisdom that it
shall promote national healing and forgiveness. There
being no taint of grave abuse in the exercise of such
discretion, as discussed below, President DuterteÊs decision
on that political question is outside the ambit of judicial
review.
Locus standi
Defined as a right of appearance in a court of justice on

a given question,27 locus standi requires that a party
alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional
questions.28 Unless a person has sustained or is in
imminent danger of sustaining an injury as a result of an
act complained of, such proper party has no standing.29
Petitioners, who filed their respective petitions for
certiorari, prohibition and mandamus, in their capacities

as citizens, human rights violations victims, legislators,

members of the Bar and taxpayers, have no legal standing
to file such petitions because they failed to show that they
have suffered or will suffer direct and personal injury as a
result of the interment of Marcos at the LNMB.
_______________
27 BlackÊs Law Dictionary, p. 941, 6th edition, 1991.

28 Supra note 19 at p. 527; p. 99.
29 Id., citing La Bugal-BÊLaan Tribal Association, Inc. v. Ramos, 465
Phil. 860, 890; 421 SCRA 148, 178 (2004).
261
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Ocampo vs. Enriquez
Taxpayers have been allowed to sue where there is a

claim that public funds are illegally disbursed or that
public money is being deflected to any improper purpose, or
that public funds are wasted through the enforcement of an
invalid or unconstitutional law.30 In this case, what is
essentially being assailed is the wisdom behind the
decision of the President to proceed with the interment of
Marcos at the LNMB. As taxpayers, petitioners merely
claim illegal disbursement of public funds, without showing
that Marcos is disqualified to be interred at the LNMB by
either express or implied provision of the Constitution, the
laws or jurisprudence.
Petitioners Saguisag, et al.,31 as members of the Bar, are
required to allege any direct or potential injury which the
Integrated Bar of the Philippines, as an institution, or its
members may suffer as a consequence of the act
complained of.32 Suffice it to state that the averments in
their petition-in-intervention failed to disclose such injury,
and that their interest in this case is too general and
shared by other groups, such that their duty to uphold the
rule of law, without more, is inadequate to clothe them with

requisite legal standing.33

As concerned citizens, petitioners are also required to
substantiate that the issues raised are of transcendental
importance, of overreaching significance to society, or of
paramount public interest.34 In cases involving such issues,
the imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence.35
In Marcos v. Manglapus,36 the majority opinion observed
that the subject controversy was of grave national
importance, and that the CourtÊs decision would
_______________
30 Supra note 19 at p. 528; pp. 99-100.

31 Rene A.V. Saguisag, Sr. and Rene A.Q. Saguisag, Jr.
32 David v. Macapagal-Arroyo, 522 Phil. 705, 762; 489 SCRA 160, 223
(2006).
33 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618; 338
SCRA 81 (2000).
34 Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, May 5,
1994, 232 SCRA 110.
35 The Diocese of Bacolod v. Commission on Elections, G.R. No.
205728, January 21, 2015, 747 SCRA 1, 46.
36 258 Phil 479; 177 SCRA 668 (1989).
262

Ocampo vs. Enriquez
have a profound effect on the political, economic, and other

aspects of national life. The ponencia explained that the
case was in a class by itself, unique and could not create
precedent because it involved a dictator forced out of office
and into exile after causing twenty years of political,
economic and social havoc in the country and who, within
the short space of three years (from 1986), sought to return
to the Philippines to die.
At this point in time, the interment of Marcos at a

cemetery originally established as a national military

cemetery and declared a national shrine would have no
profound effect on the political, economic, and other aspects
of our national life considering that more than twenty-
seven (27) years since his death and thirty (30) years after
his ouster have already passed. Significantly, petitioners
failed to demonstrate a clear and imminent threat to their
fundamental constitutional rights.
As human rights violations victims during the Martial
Law regime, some of petitioners decry re-traumatization,
historical revisionism, and disregard of their state
recognition as heroes. PetitionersÊ argument is founded on
the wrong premise that the LNMB is the National
Pantheon intended by law to perpetuate the memory of all
Presidents, national heroes and patriots. The history of the
LNMB, as will be discussed further, reveals its nature and
purpose as a national military cemetery and national
shrine, under the administration of the AFP.
Apart from being concerned citizens and taxpayers,
petitioners Senator De Lima, and Congressman Lagman, et
al.37 come before the Court as legislators suing to defend
the Constitution and to protect appropriated public funds
from being used unlawfully. In the absence of a clear
showing of any direct injury to their person or the
institution to which they belong, their standing as
members of the Congress cannot be upheld.38 They do not
specifically claim that the official actions complained of,
i.e., the memorandum of the Secretary of National Defense
and the
_______________
37 REP. TEDDY BRAWNER BAGUILAT JR., REP. TOMASITO S.

VILLARIN, REP. EDGAR R. ERICE and REP. EMMANUEL A.
BILLONES.
38 BAYAN (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623,
648; 342 SCRA 449, 479 (2000).
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Ocampo vs. Enriquez
directive of the AFP Chief of Staff regarding the interment

of Marcos at the LNMB, encroach on their prerogatives as
legislators.39
Exhaustion of Administrative Remedies
Petitioners violated the doctrines of exhaustion of

administrative remedies and hierarchy of courts. Under the
doctrine of exhaustion of administrative remedies, before a
party is allowed to seek the intervention of the court, one
should have availed first of all the means of administrative
processes available.40 If resort to a remedy within the
administrative machinery can still be made by giving the
administrative officer concerned every opportunity to
decide on a matter that comes within his jurisdiction, then
such remedy should be exhausted first before the courtÊs
judicial power can be sought.41 For reasons of comity and
convenience, courts of justice shy away from a dispute until
the system of administrative redress has been completed
and complied with, so as to give the administrative agency
concerned every opportunity to correct its error and dispose
of the case.42 While there are exceptions43 to the
_______________
39 Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374,

439; 637 SCRA 78, 233 (2010).
40 Maglalang v. Philippine Amusement and Gaming Corporation
(PAGCOR), 723 Phil. 546, 556; 712 SCRA 472, 482-483 (2013).
41 Id.
42 Id., at p. 557; p. 482.
43 Nonetheless, the doctrine of exhaustion of administrative remedies
and the corollary doctrine of primary jurisdiction, which are based on
sound public policy and practical considerations, are not inflexible rules.
There are many accepted exceptions, such as: (a) where there is estoppel
on the part of the party invoking the doctrine; (b) where the challenged
administrative act is patently illegal, amounting to lack of jurisdiction;
(c) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (d) where the amount involved is

relatively small so as to make the rule impractical and oppressive; (e)

where the question involved is purely legal and will ultimately have to be
decided by the courts of justice; (f) where judicial intervention is urgent;
(g) when its application may cause great and irreparable damage; (h)
where the controverted acts violate due process; (i) when the issue of
nonexhaustion of administrative remedies has been rendered moot; (j)
when there is no other plain, speedy and adequate remedy; (k) when
strong public interest is
264

Ocampo vs. Enriquez
doctrine of exhaustion of administrative remedies,

petitioners failed to prove the presence of any of those
exceptions.
Contrary to their claim of lack of plain, speedy, adequate
remedy in the ordinary course of law, petitioners should be
faulted for failing to seek reconsideration of the assailed
memorandum and directive before the Secretary of
National Defense. The Secretary of National Defense
should be given opportunity to correct himself, if
warranted, considering that AFP Regulations G 161-375
was issued upon his order. Questions on the
implementation and interpretation thereof demand the
exercise of sound administrative discretion, requiring the
special knowledge, experience and services of his office to
determine technical and intricate matters of fact. If
petitioners would still be dissatisfied with the decision of
the Secretary, they could elevate the matter before the
Office of the President which has control and supervision
over the Department of National Defense (DND).44
Hierarchy of Courts
In the same vein, while direct resort to the Court

through petitions for the extraordinary writs of certiorari,
prohibition and mandamus are allowed under exceptional

cases,45 which are lacking in this case, peti-
_______________
involved; and, (l) in quo warranto proceedings. (See Republic v. Lacap,

546 Phil. 87, 97-98; 517 scra 255, 265-266 [2007]).
44 Book IV, Chapter 1, Section 1 of the Administrative Code.
45 Direct resort to the Court is allowed as follows (1) when there are
genuine issues of constitutionality that must be addressed at the most
immediate time; (2) when the issues involved are of transcendental
importance; (3) when cases of first impression are involved; and (4) when
constitutional issues raised are better decided by the Court; (5) when the
time element presented in the case cannot be ignored; (6) when the filed
petition reviews the act of a constitutional organ; (7) when petitioners
rightly claim that they had no other plain, speedy and adequate remedy
in the ordinary course of law that could free them from the injurious
effects of respondentsÊ acts in violation of their right to freedom of
expression; and (8) when the petition includes questions that are
„dictated by public welfare and the advancement of public policy, or
demanded by the broader interest of justice, or the orders complained of
were found to be patent
265
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Ocampo vs. Enriquez
tioners cannot simply brush aside the doctrine of hierarchy

of courts that requires such petitions to be filed first with
the proper Regional Trial Court (RTC). The RTC is not just
a trier of facts, but can also resolve questions of law in the
exercise of its original and concurrent jurisdiction over
petitions for certiorari, prohibition and mandamus, and has
the power to issue restraining order and injunction when
proven necessary.
In fine, the petitions at bar should be dismissed on
procedural grounds alone. Even if We decide the case based
on the merits, the petitions should still be denied.

Substantive Grounds
There is grave abuse of discretion when an act is (1)

done contrary to the Constitution, the law or jurisprudence
or (2) executed whimsically, capriciously or arbitrarily, out
of malice, ill will or personal bias.46 None is present in this
case.
I
The PresidentÊs decision to bury Marcos
at the LNMB is in accordance with the Constitution,
the law or jurisprudence
Petitioners argue that the burial of Marcos at the LNMB

should not be allowed because it has the effect of not just
rewriting history as to the Filipino peopleÊs act of revolting
against an authoritarian ruler but also condoning the
abuses committed during the Martial Law, thereby
violating the letter and spirit of the 1987 Constitution,
which is a „post-dictatorship charter‰ and a „human rights
constitution.‰ For them, the ratification of the Constitution
serves as a clear condemnation of MarcosÊ alleged
„heroism.‰ To support their case, petitioners invoke
Sections
_______________
nullities, or the appeal was considered as clearly an inappropriate

remedy.‰ (See The Diocese of Bacolod v. Commission on Elections, supra
note 35 at pp. 45-49.
46 National Artist for Literature Virgilio Almario, et al. v. The
Executive Secretary, 714 Phil. 127, 169; 701 SCRA 269, 316 (2013).
266

Ocampo vs. Enriquez
2,47 11,48 13,49 23,50 26,51 2752 and 2853 of Article II, Sec. 17

of Art. VII,54 Sec. 3(2) of Art. XIV,55 Sec. 1 of Art. XI,56 and
Sec. 26 of Art. XVIII57 of the Constitution.
_______________
47 SECTION 2. The Philippines renounces war as an instrument of

national policy, adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.
48 SECTION 11. The State values the dignity of every human
person and guarantees full respect for human rights.
49 SECTION 13. The State recognizes the vital role of the youth in
nation-building and shall promote and protect their physical, moral,
spiritual, intellectual, and social well-being. It shall inculcate in the
youth atriotism and nationalism, and encourage their involvement in
public and civic affairs.
50 SECTION 23. The State shall encourage non-governmental,
community-based, or sectoral organizations that promote the welfare of
the nation.
51 SECTION 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political dynasties as may
be defined by law.
52 SECTION 27. The State shall maintain honesty and integrity in
the public service and take positive and effective measures against graft
and corruption.
53 SECTION 28. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public disclosure of
all its transactions involving public interest.
54 SECTION 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.
55 SECTION 3. x x x
(2) They shall inculcate patriotism and nationalism, foster love of
humanity, respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the rights and
duties of citizenship, strengthen ethical and spiritual values, develop
moral character and personal discipline, encourage critical and creative
thinking, broaden scientific and technological knowledge, and promote
vocational efficiency.
56 SECTION 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency, act with

patriotism and justice, and lead modest lives.

57 SECTION 26. The authority to issue sequestration or freeze
orders under Proclamation No. 3 dated March 25, 1986 in relation to the
recovery of ill-gotten wealth shall remain operative for not more than
eighteen months after
267
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Ocampo vs. Enriquez
There is no merit to the contention.

As the Office of the Solicitor General (OSG) logically
reasoned out, while the Constitution is a product of our
collective history as a people, its entirety should not be
interpreted as providing guiding principles to just about
anything remotely related to the Martial Law period such
as the proposed Marcos burial at the LNMB.
Tañada v. Angara58 already ruled that the provisions in
Article II of the Constitution are not self-executing. Thus:
By its very title, Article II of the Constitution is a „declaration of

principles and state policies.‰ The counterpart of this article in the
1935 Constitution is called the „basic political creed of the nation‰
by Dean Vicente Sinco. These principles in Article II are not
intended to be self-executing principles ready for enforcement
through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case of
Kilosbayan, Incorporated vs. Morato, the principles and state
policies enumerated in Article II x x x are not „self-executing
provisions, the disregard of which can give rise to a cause of action
in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation.‰
In the same light, we held in Basco vs. Pagcor that broad
constitutional principles need legislative enactments to implement
them x x x.
_______________

the ratification of this Constitution. However, in the national interest, as

certified by the President, the Congress may extend said period.
A sequestration or freeze order shall be issued only upon showing of a
prima facie case. The order and the list of the sequestered or frozen
properties shall forthwith be registered with the proper court. For orders
issued before the ratification of this Constitution, the corresponding
judicial action or proceeding shall be filed within six months from its
ratification. For those issued after such ratification, the judicial action or
proceeding shall be commenced within six months from the issuance
thereof.
The sequestration or freeze order is deemed automatically lifted if no
judicial action or proceeding is commenced as herein provided.
58 338 Phil. 546; 272 SCRA 18 (1997).
268

Ocampo vs. Enriquez
xxx
The reasons for denying a cause of action to an alleged

infringement of broad constitutional principles are sourced from
basic considerations of due process and the lack of judicial authority
to wade „into the uncharted ocean of social and economic policy
making.‰59
In the same vein, Sec. 1 of Art. XI of the Constitution is

not a self-executing provision considering that a law should
be passed by the Congress to clearly define and effectuate
the principle embodied therein. As a matter of fact,
pursuant thereto, Congress enacted R.A. No. 6713 („Code of
Conduct and Ethical Standards for Public Officials and
Employees‰), R.A. No. 6770 („The Ombudsman Act of
1989‰), R.A. No. 7080 (An Act Defining and Penalizing the
Crime of Plunder), and Republic Act No. 9485 („Anti-Red
Tape Act of 2007‰). To complement these statutes, the
Executive Branch has issued various orders, memoranda,

and instructions relative to the norms of behavior/code of

conduct/ethical standards of officials and employees;
workflow charts/public transactions; rules and policies on
gifts and benefits; whistle blowing and reporting; and client
feedback program.
PetitionersÊ reliance on Sec. 3(2) of Art. XIV and Sec. 26
of Art. XVIII of the Constitution is also misplaced. Sec. 3(2)
of Art. XIV refers to the constitutional duty of educational
institutions in teaching the values of patriotism and
nationalism and respect for human rights, while Sec. 26 of
Art. XVIII is a transitory provision on sequestration or
freeze orders in relation to the recovery of MarcosÊ ill-gotten
wealth. Clearly, with respect to these provisions, there is no
direct or indirect prohibition to MarcosÊ interment at the
LNMB.
_______________
59 Tañada v. Angara, id., at pp. 580-581; p. 55. (Citations omitted).

The case was cited in Tondo Medical Center Employees Association v.
Court of Appeals, 554 Phil. 609, 625-626; 527 SCRA 746, 764-765 (2007);
Bases Conversion and Development Authority v. Court of Appeals, 599
Phil. 455, 465; 580 SCRA 295, 303 (2009); and Espina v. Zamora, Jr., 645
Phil. 269, 278-279; 631 SCRA 17, 26 (2010). See also Manila Prince Hotel
v. Government Service Insurance System, 335 Phil. 82, 101-102; 267
SCRA 408, 477 (1997).
269
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Ocampo vs. Enriquez
The second sentence of Sec. 17 of Art. VII pertaining to

the duty of the President to „ensure that the laws be
faithfully executed,‰ which is identical to Sec. 1, Title I,
Book III of the Administrative Code of 1987,60 is likewise
not violated by public respondents. Being the Chief
Executive, the President represents the government as a
whole and sees to it that all laws are enforced by the

officials and employees of his or her department.61 Under

the Faithful Execution Clause, the President has the power
to take „necessary and proper steps‰ to carry into execution
the law.62 The mandate is self-executory by virtue of its
being inherently executive in nature and is intimately
related to the other executive functions.63 It is best
construed as an imposed obligation, not a separate grant of
power.64 The provision simply underscores the rule of law
and, corollarily, the cardinal principle that the President is
not above the laws but is obliged to obey and execute
them.65
Consistent with President DuterteÊs mandate under Sec.
17, Art. VII of the Constitution, the burial of Marcos at the
LNMB does not contravene R.A. No. 289, R.A. No. 10368,
and the international human rights laws cited by
petitioners.
On R.A. No. 28966

A.
For the perpetuation of their memory and for the

inspiration and emulation of this generation and of
generations still unborn, R.A. No. 289 authorized the
construction of a National Pantheon as the burial place of
the mortal remains of all the Presidents of the Philippines,
_______________
60 Executive Order No. 292, S. 1987, Signed on July 25, 1987.

61 Supra note 39 at p. 451; p. 160.
62 Philippine Constitution Association v. Enriquez, G.R. Nos. 113105,
113174, 113766, and 113888, August 19, 1994, 235 SCRA 506, 552.
63 Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, January 12,
2016, 779 SCRA 241, 339.
Executive Secretary, supra note 46 at p. 164; p. 309, as cited in Saguisag
v. Ochoa, Jr., supra.
65 Id.
66 Entitled „AN ACT PROVIDING FOR THE CONSTRUCTION OF A NATIONAL
PANTHEON FOR PRESIDENTS OF THE PHILIPPINES, NATIONAL HEROES AND
PATRIOTS OF THE COUNTRY,‰ approved on June 16, 1948.

270

Ocampo vs. Enriquez
national heroes and patriots.67 It also provided for the

creation of a Board on National Pantheon to implement the
law.68
On May 12, 1953, President Elpidio R. Quirino approved
the site of the National Pantheon at East Avenue, Quezon
City.69 On December 23, 1953, he issued Proclamation No.
431 to formally „withdraw from sale or settlement and
reserve as a site for the construction of the National
Pantheon a certain parcel of land located in Quezon City.‰
However, on July 5, 1954, President Magsaysay issued
Proclamation No. 42 revoking Proclamation Nos. 422 and
431, both Series of 1953, and reserving the parcels of land
embraced therein for national park purposes to be known
as Quezon Memorial Park.
It is asserted that Sec. 1 of R.A. No 289 provides for the
legal standard by which a personÊs mortal remains may be
interred at the LNMB, and that AFP Regulations G 161-
375 merely implements the law and
_______________
67 Section 1.
68 Sec. 2. There is hereby created a Board on National Pantheon
composed of the Secretary of the Interior, the Secretary of Public Works
and Communications and the Secretary of Education and two private
citizens to be appointed by the President of the Philippines with the
consent of the Commission on Appointments which shall have the
following duties and functions:
(a) To determine the location of a suitable site for the construction of
the said National Pantheon, and to have such site acquired, surveyed
and fenced for this purpose and to delimit and set aside a portion thereof
wherein shall be interred the remains of all Presidents of the Philippines
and another portion wherein the remains of heroes, patriots and other
great men of the country shall likewise be interred;
(b) To order and supervise the construction thereon of uniform
monuments, mausoleums, or tombs as the Board may deem appropriate;

(c) To cause to be interred therein the mortal remains of all

Presidents of the Philippines, the national heroes and patriots;
(d) To order and supervise the construction of a suitable road leading
to the said National Pantheon from the nearest national or provincial
road; and
(e) To perform such other functions as may be necessary to carry out
the purposes of this Act.
69 Office of the President of the Philippines. (1953). Official Month in
Review. Official Gazette of the Republic of the Philippines, 49(5), lxv-lxxvi
<http://www.gov.ph/1953/05/01/official-month-in-review-may-1953/>, (last
accessed on October 28, 2016).
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Ocampo vs. Enriquez
should not violate its spirit and intent. Petitioners claim

that it is known, both here and abroad, that MarcosÊ acts
and deed · the gross human rights violations, the massive
corruption and plunder of government coffers, and his
military record that is fraught with myths, factual
inconsistencies, and lies · are neither worthy of
perpetuation in our memory nor serve as a source of
inspiration and emulation of the present and future
generations. They maintain that public respondents are not
members of the Board on National Pantheon, which is
authorized by the law to cause the burial at the LNMB of
the deceased Presidents of the Philippines, national heroes,
and patriots.
Petitioners are mistaken. Both in their pleadings and
during the oral arguments, they miserably failed to provide
legal and historical bases as to their supposition that the
LNMB and the National Pantheon are one and the same.
This is not at all unexpected because the LNMB is distinct
and separate from the burial place envisioned in R.A. No
289. The parcel of land subject matter of President
QuirinoÊs Proclamation No. 431, which was later on
revoked by President MagsaysayÊs Proclamation No. 42, is

different from that covered by MarcosÊ Proclamation No.

208. The National Pantheon does not exist at present. To
date, the Congress has deemed it wise not to appropriate
any funds for its construction or the creation of the Board
on National Pantheon. This is indicative of the legislative
will not to pursue, at the moment, the establishment of a
singular interment place for the mortal remains of all
Presidents of the Philippines, national heroes, and patriots.
Perhaps, the Manila North Cemetery, the Manila South
Cemetery, and other equally distinguished private
cemeteries already serve the noble purpose but without
cost to the limited funds of the government.
Even if the Court treats R.A. No. 289 as relevant to the
issue, still, petitionersÊ allegations must fail. To apply the
standard that the LNMB is reserved only for the „decent
and the brave‰ or „hero‰ would be violative of public policy
as it will put into question the validity of the burial of each
and every mortal remains resting therein, and infringe
upon the principle of separation of powers since the
allocation of plots at the LNMB is based on the grant of
authority to the President under existing laws and
regulations. Also, the Court shares the view of the OSG
that the proposed interment is not equivalent to the
consecration of MarcosÊ mortal remains. The act in itself
does not confer upon him the status of
272

Ocampo vs. Enriquez
a „hero.‰ Despite its name, which is actually a misnomer,

the purpose of the LNMB, both from legal and historical
perspectives, has neither been to confer to the people
buried there the title of „hero‰ nor to require that only
those interred therein should be treated as a „hero.‰ Lastly,
petitionersÊ repeated reference to a „heroÊs burial‰ and
„state honors,‰ without showing proof as to what kind of
burial or honors that will be accorded to the remains of
Marcos, is speculative until the specifics of the interment

have been finalized by public respondents.
On R.A. No. 1036870

B.
For petitioners, R.A. No. 10368 modified AFP

Regulations G 161-375 by implicitly disqualifying MarcosÊ
burial at the LNMB because the
_______________
70 Approved on February 25, 2013, R.A. No. 10368 is the

consolidation of House Bill (H.B.) No. 5990 and Senate Bill (S.B.) No.
3334. H.B. No. 5990, entitled „An Act Providing Compensation to Victims
of Human Rights Violations During the Marcos Regime, Documentation
of Said Violations, Appropriating Funds Therefor, and for Other
Purposes,‰ was cosponsored by Lorenzo R. Tañada III, Edcel C. Lagman,
Rene L. Relampagos, Joseph Emilio A. Abaya, Walden F. Bello, Kaka J.
Bag-ao, Teodoro A. Casiño, Neri Javier Colmenares, Rafael V. Mariano,
Luzviminda C. Ilagan, Antonio L. Tinio, Emerenciana A. De Jesus, and
Raymond V. Palatino. No member of the House signified an intention to
ask any question during the period of sponsorship and debate, and no
committee or individual amendments were made during the period of
amendments (Congressional Record, Vol. 2, No. 44, March 14, 2012, p. 3).
The bill was approved on Second Reading (Congressional Record, Vol. 2,
No. 44, March 14, 2012, p. 4). On Third Reading, the bill was approved
with 235 affirmative votes, no negative vote, and no abstention
(Congressional Record, Vol. 2, No. 47, March 21, 2012, p. 15). On the
other hand, S.B. No. 3334, entitled „An Act Providing for Reparation and
Recognition of the Survivors and Relatives of the Victims of Violations of
Human Rights and Other Related Violations During the Regime of
Former President Ferdinand Marcos, Documentation of Said Violations,
Appropriating Funds Therefor, and for Other Purposes,‰ was coauthored
by Sergio R. Osmeña III, Teofisto D. Guingona III, Francis G. Escudero,
and Franklin M. Drilon. Senators Drilon and Panfilo M. Lacson
withdrew their reservation to interpellate on the measure (Senate
Journal No. 41, December 10, 2012, p. 1171). The bill was approved on
Second Reading with no objection (Senate Journal No. 41, December 10,
2012, p. 1172). On Third Reading, the bill was approved with 18 senators
voting in favor, none against, and no abstention (Senate Journal No. 44,
December 17, 2012, p. 1281).

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Ocampo vs. Enriquez
legislature, which is a co-equal branch of the government,

has statutorily declared his tyranny as a deposed dictator
and has recognized the heroism and sacrifices of the
Human Rights Violations Victims (HRVVs)71 under his
regime. They insist that the intended act of public
respondents damages and makes mockery of the
mandatory teaching of Martial Law atrocities and of the
lives and sacrifices of its victims. They contend that
„reparation‰ under R.A. No. 10368 is nonjudicial in nature
but a political action of the State through the Legislative
and Executive branches by providing administrative relief
for the compensation, recognition, and memorialization of
human rights victims.
We beg to disagree.
Certainly, R.A. No. 10368 recognizes the heroism and
sacrifices of all Filipinos who were victims of summary
execution, torture, enforced or involuntary disappearance,
and other gross human rights violations committed from
September 21, 1972 to February 25, 1986. To restore their
honor and dignity, the State acknowledges its moral and
legal obligation72 to provide reparation to said victims
and/or their families for
_______________
71 Human Rights Violations Victim (HRVV) refers to a person whose

human rights were violated by persons acting in an official capacity
and/or agents of the State as defined herein. In order to qualify for
reparation under this Act, the human rights violation must have been
committed during the period from September 21, 1972 to February 25,
1986: Provided, however, That victims of human rights violations that
were committed one (1) month before September 21, 1972 and one (1)
month after February 25, 1986 shall be entitled to reparation under this
Act if they can establish that the violation was committed:
(1) By agents of the State and/or persons acting in an official
capacity as defined hereunder;

(2) For the purpose of preserving, maintaining, supporting or

promoting the said regime; or
(3) To conceal abuses during the Marcos regime and/or the effects of
Martial Law. (Sec. 3[c] of R.A. No. 10368).
72 Section 11 Article II and Section 12 Article III of the 1987
Constitution as well as Section 2 of Article II of the 1987 Constitution in
relation to the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights (ICCPR), the Convention Against
Torture (CAT) and Other
274

Ocampo vs. Enriquez
the deaths, injuries, sufferings, deprivations and damages

they experienced.
In restoring the rights and upholding the dignity of
HRVVs, which is part of the right to an effective remedy,
R.A. No. 10368 entitles them to monetary and
nonmonetary reparation. Any HRVV qualified under the
law73 shall receive a monetary reparation, which is tax-free
and without prejudice to the receipt of any other sum from
any other person or entity in any case involving human
rights violations.74 Anent the nonmonetary reparation, the
Department of Health (DOH), the Department of Social
Welfare and Development (DSWD), the Department of
Education (DepEd), the Commission on Higher Education
(CHED), the Technical Education and Skills Development
Authority (TESDA), and such other government agencies
are required to render the necessary services for the
HRVVs and/or their families, as may be determined by the
Human Rights VictimsÊ Claims Board (Board) pursuant to
the provisions of the law.75
Additionally, R.A. No. 10368 requires the recognition of
the violations committed against the HRVVs, regardless of
whether they opt to seek reparation or not. This is
manifested by enshrining their names in the Roll of
Human Rights Violations Victims (Roll) prepared by the

Board.76 The Roll may be displayed in government agencies

designated by the
_______________
Cruel, Inhuman or Degrading Treatment or Punishment, and other

international human rights laws and conventions (See Sec. 2 of R.A. No.
10368).
73 The claimants in the class suit and direct action plaintiffs in the
Human Rights Litigation Against the Estate of Ferdinand E. Marcos
(MDL No. 840, CA No. 86-0390) in the US Federal District Court of
Honolulu, Hawaii wherein a favorable judgment has been rendered, and
the HRVVs recognized by the Bantayog ng mga Bayani Foundation shall
be extended the conclusive presumption that they are HRVVs. However,
the Human Rights VictimsÊ Claims Board is not deprived of its original
jurisdiction and its inherent power to determine the extent of the human
rights violations and the corresponding reparation and/or recognition
that may be granted (See Sec. 17 of R.A. No. 10368).
74 Sec. 4 of R.A. No. 10368.
75 Id., Sec. 5.
76 Id., Sec. 6.
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Ocampo vs. Enriquez
HRVV Memorial Commission (Commission).77 Also, a

Memorial/Museum/Library shall be established and a
compendium of their sacrifices shall be prepared and may
be readily viewed and accessed in the internet.78 The
Commission is created primarily for the establishment,
restoration, preservation and conservation of the
Memorial/Museum/ Library/Compendium.79
To memorialize80 the HRVVs, the Implementing Rules
and Regulations of R.A. No. 10368 further mandates that:
(1) the database prepared by the Board derived from the
processing of claims shall be turned over to the
Commission for archival purposes, and made accessible for

the promotion of human rights to all government agencies

and instrumentalities in order to prevent recurrence of
similar abuses, encourage continuing reforms and
contribute to ending impunity;81 (2) the lessons learned
from Martial Law atrocities and the lives and sacrifices of
HRVVs shall be included in the basic and higher education
curricula, as well as in continuing adult learning,
prioritizing those most prone to commit human rights
violations;82 and (3) the Commission shall publish only
those stories of HRVVs who have given prior informed
consent.83
This Court cannot subscribe to petitionersÊ logic that the
beneficial provisions of R.A. No. 10368 are not exclusive as
it includes the prohibition on MarcosÊ burial at the LNMB.
It would be undue to extend the law beyond what it
actually contemplates. With its victim-oriented perspective,
our legislators could have easily inserted a provision
specifi-
_______________
77 Id.
78 Id.
79 Id., Sec. 27.
80 „Memorialization‰ refers to the preservation of the memory of the
human rights violations victims, objects, events and lessons learned
during the Marcos regime. This is part of the inherent obligation of the
State to acknowledge the wrongs committed in the past, to recognize the
heroism and sacrifices of all Filipinos who were victims of gross human
rights violations during Martial Law, and to prevent the recurrence of
similar abuses (Sec. 1[j], Rule II, IRR of R.A. No. 10368).
81 Sec. 1, Rule VII, IRR of R.A. No. 10368.
82 Id., Sec. 2.
83 Id., Sec. 3.
276

Ocampo vs. Enriquez

cally proscribing MarcosÊ interment at the LNMB as a

„reparation‰ for the HRVVs, but they did not. As it is, the
law is silent and should remain to be so. This Court cannot
read into the law what is simply not there. It is irregular, if
not unconstitutional, for Us to presume the legislative will
by supplying material details into the law. That would be
tantamount to judicial legislation.
Considering the foregoing, the enforcement of the
HRVVsÊ rights under R.A. No 10368 will surely not be
impaired by the interment of Marcos at the LNMB. As
opined by the OSG, the assailed act has no causal
connection and legal relation to the law. The subject
memorandum and directive of public respondents do not
and cannot interfere with the statutory powers and
functions of the Board and the Commission. More
importantly, the HRVVsÊ entitlements to the benefits
provided for by R.A. No 10368 and other domestic laws are
not curtailed. It must be emphasized that R.A. No. 10368
does not amend or repeal, whether express or implied, the
provisions of the Administrative Code or AFP Regulations
G 161-375:
It is a well-settled rule of statutory construction that repeals by

implication are not favored. In order to effect a repeal by
implication, the later statute must be so irreconcilably inconsistent
and repugnant with the existing law that they cannot be made to
reconcile and stand together. The clearest case possible must be
made before the inference of implied repeal may be drawn, for
inconsistency is never presumed. There must be a showing of
repugnance clear and convincing in character. The language used in
the later statute must be such as to render it irreconcilable with
what had been formerly enacted. An inconsistency that falls short of
that standard does not suffice. x x x84
On International Human Rights Laws

C.
Petitioners argue that the burial of Marcos at the LNMB

will violate the rights of the HRVVs to „full‰ and „effective‰
reparation, which is provided under the International
Covenant on Civil and Political Rights
_______________

84 Remman Enterprises, Inc. v. Professional Regulatory Board of Real

Estate Service, 726 Phil. 104, 118-119; 715 SCRA 293, 308-309 (2014).
277
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Ocampo vs. Enriquez
(ICCPR),85 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 Law86
_______________
85 Article 2
1. 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.
2. Where not already provided for by existing legislative or other
measures, each State Party to the present Covenant undertakes to take
the necessary steps, in accordance with its constitutional processes and
with the provisions of the present Covenant, to adopt such laws or other
measures as may be necessary to give effect to the rights recognized in
the present Covenant.
3. Each State Party to the present Covenant undertakes:
(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.

Reparation for harm suffered
86 IX.
15. Adequate, effective and prompt reparation is intended to promote
justice by redressing gross violations of international human rights law
or serious violations of international humanitarian law. Reparation
should be proportional to the gravity of the violations and the harm
suffered. In accordance with its domestic laws and international legal
obligations, a State shall provide reparation to victims for acts or
omissions which can be attributed to the State and constitute gross
violations of international human rights law or serious violations of
international humanitarian law. In cases where a person, a legal person,
or other entity is found liable for reparation to a victim, such party
should provide reparation to the victim or compensate the State if the
State has already provided reparation to the victim.
16. States should endeavour to establish national programmes for
reparation and other assistance to victims in the event that the parties
liable for the harm suffered are unable or unwilling to meet their
obligations.
278

Ocampo vs. Enriquez
_______________
17. States shall, with respect to claims by victims, enforce domestic

judgements for reparation against individuals or entities liable for the
harm suffered and endeavour to enforce valid foreign legal judgements
for reparation in accordance with domestic law and international legal
obligations. To that end, States should provide under their domestic laws
effective mechanisms for the enforcement of reparation judgements.
18. In accordance with domestic law and international law, and
taking account of individual circumstances, victims of gross violations of
international human rights law and serious violations of international
humanitarian law should, as appropriate and proportional to the gravity
of the violation and the circumstances of each case, be provided with full
and effective reparation, as laid out in principles 19 to 23, which include
the following forms: restitution, compensation, rehabilitation,

satisfaction and guarantees of non-repetition.

19. Restitution should, whenever possible, restore the victim to the
original situation before the gross violations of international human
rights law or serious violations of international humanitarian law
occurred. Restitution includes, as appropriate: restoration of liberty,
enjoyment of human rights, identity, family life and citizenship, return to
oneÊs place of residence, restoration of employment and return of
property.
20. Compensation should be provided for any economically
assessable damage, as appropriate and proportional to the gravity of the
violation and the circumstances of each case, resulting from gross
violations of international human rights law and serious violations of
international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social
benefits;
(c) Material damages and loss of earnings, including loss of earning
potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and
medical services, and psychological and social services.
21. Rehabilitation should include medical and psychological care as
well as legal and social services.
22. Satisfaction should include, where applicable, any or all of the
following:
(a) Effective measures aimed at the cessation of continuing
violations;
(b) Verification of the facts and full and public disclosure of the truth
to the extent that such disclosure does not cause further harm or
threaten the safety and interests of the victim, the victimÊs relatives,
witnesses, or persons
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Ocampo vs. Enriquez
adopted by the U.N. General Assembly on December 16,

2005, and the Updated Set of Principles for the Protection

and Promotion of Human
_______________
who have intervened to assist the victim or prevent the occurrence of

further violations;
(c) The search for the whereabouts of the disappeared, for the
identities of the children abducted, and for the bodies of those killed, and
assistance in the recovery, identification and reburial of the bodies in
accordance with the expressed or presumed wish of the victims, or the
cultural practices of the families and communities;
(d) 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;
(e) Public apology, including acknowledgment of the facts and
acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for
the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in
international human rights law and international humanitarian law
training and in educational material at all levels.
23. Guarantees of non-repetition should include, where applicable,
any or all of the following measures, which will also contribute to
prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by
international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health care
professions, the media and other related professions, and human rights
defenders;
(e) Providing, on a priority and continued basis, human rights and
international humanitarian law education to all sectors of society and
training for law enforcement officials as well as military and security
forces;
(f) Promoting the observance of codes of conduct and ethical norms,
in particular international standards, by public servants, including law
enforcement, correctional, media, medical, psychological, social service
and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social
conflicts and their resolution;

(h) Reviewing and reforming laws contributing to or allowing gross

violations of international human rights law and serious violations of
international humanitarian law.
280

Ocampo vs. Enriquez
Rights Through Action to Combat Impunity87 dated

February 8, 2005 by the U.N. Economic and Social Council.
We do not think so. The ICCPR,88 as well as the U.N.
principles on reparation and to combat impunity, call for
the enactment of legislative measures, establishment of
national programmes, and provision for administrative and
judicial recourse, in accordance with the countryÊs
constitutional processes, that are necessary to give effect to
human rights embodied in treaties, covenants and other
international laws. The U.N. principles on reparation
expressly states:
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[.] [Emphasis
supplied]
The Philippines is more than compliant with its

international obligations. When the Filipinos regained
their democratic institutions after
_______________
87 PRINCIPLE 2. THE INALIENABLE RIGHT TO THE TRUTH

Every people has the inalienable right to know the truth about past
events concerning the perpetration of heinous crimes and about the
circumstances and reasons that led, through massive or systematic

violations, to the perpetration of those crimes. Full and effective exercise

of the right to the truth provides a vital safeguard against the recurrence
of violations.
PRINCIPLE 3. THE DUTY TO PRESERVE MEMORY
A peopleÊs knowledge of the history of its oppression is part of its
heritage and, as such, must be ensured by appropriate measures in
fulfillment of the StateÊs 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.
88 Adopted and opened for signature, ratification and accession by
General Assembly resolution 2200A (XXI) of December 16, 1966, entry
into force March 23, 1976, in accordance with Article 49
<http.//www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>, (last
accessed on October 28, 2016).
281
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Ocampo vs. Enriquez
the successful People Power Revolution that culminated on

February 25, 1986, the three branches of the government
have done their fair share to respect, protect and fulfill the
countryÊs human rights obligations, to wit:
The 1987 Constitution contains provisions that promote
and protect human rights and social justice.
As to judicial remedies, aside from the writs of habeas
corpus, amparo,89 and habeas data,90 the Supreme Court
promulgated on March 1, 2007 Administrative Order No.
25-2007,91 which provides rules on cases involving
extrajudicial killings of political ideologists and members of
the media. The provision of the Basic Principles and
Guidelines on the prevention of the victimÊs re-
traumatization applies in the course of legal and
administrative procedures designed to provide justice and
reparation.92

On the part of the Executive Branch, it issued a number

of administrative and executive orders. Notable of which
are the following:
1. A.O. No. 370 dated December 10, 1997 (Creating the
Inter-Agency Coordinating Committee on Human
Rights);
2. E.O. No. 118 dated July 5, 1999 (Providing for the
Creation of a National Committee on the Culture of
Peace);
_______________
89 A.M. No. 07-9-12-SC, Effective on October 24, 2007.

90 A.M. No. 08-1-16-SC, Effective on February 2, 2008.
91 Reiterated in OCA Circular No. 103-07 dated October 16, 2007 and
OCA Circular No. 46-09 dated April 20, 2009.
Treatment of victims
92 VI.
10. Victims should be treated with humanity and respect for their
dignity and human rights, and appropriate measures should be taken to
ensure their safety, physical and psychological well-being and privacy, as
well as those of their families. The State should ensure that its domestic
laws, to the extent possible, provide that a victim who has suffered
violence or trauma should benefit from special consideration and care to
avoid his or her re-traumatization in the course of legal and
administrative procedures designed to provide justice and reparation.
282

Ocampo vs. Enriquez
3. E.O. No. 134 dated July 31, 1999 (Declaring August

12, 1999 and Every 12th Day of August Thereafter as
International Humanitarian Law Day);
4. E.O. No. 404 dated January 24, 2005 (Creating the
Government of the Republic of the Philippines
Monitoring Committee [GRPMC] on Human Rights
and International Humanitarian Law);
5. A.O. No. 157 dated August 21, 2006 (Creating an

Independent Commission to Address Media and

Activist Killings);
6. A.O. No. 163 dated December 8, 2006 (Strengthening
and Increasing the Membership of the Presidential
Human Rights Committee, and Expanding Further
the Functions of Said Committee);93
7. A.O. No. 181 dated July 3, 2007 (Directing the
Cooperation and Coordination Between the National
Prosecution Service and Other Concerned Agencies of
Government for the Successful Investigation and
Prosecution of Political and Media Killings);
8. A.O. No. 197 dated September 25, 2007 (DND and
AFP Coordination with PHRC Sub-committee on
Killings and Disappearances);
9. A.O. No. 211 dated November 26, 2007 (Creating a
Task Force Against Political Violence);
10. A.O. No. 249 dated December 10, 2008 (Further
Strengthening Government Policies, Plans, and
Programs for the Effective Promotion and Protection of
Human Rights on the Occasion of the 60th
Anniversary of the Universal Declaration of Human
Rights);
11. E.O. No. 847 dated November 23, 2009 (Creating the
Church-Police-Military-Liaison Committee to
Formulate and Implement a Comprehensive Program
to Establish Strong Partner-
_______________
93 Originated from A.O. No. 101 dated Docember 13, 1988 and A.O.
No. 29 dated January 27, 2002.
283
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Ocampo vs. Enriquez
ship Between the State and the Church on Matters

Concerning Peace and Order and Human Rights);

12. A.O. No. 35 dated November 22, 2012 (Creating the

Inter-Agency Committee on Extra-Legal Killings,
Enforced Disappearances, Torture and Other Grave
Violations of the Right to Life, Liberty and Security of
Persons);
13. A.O. No. 1 dated October 11, 2016 (Creating the
Presidential Task Force on Violations of the Right to
Life, Liberty and Security of the Members of the
Media).
Finally, the Congress passed the following laws affecting

human rights:
1. Republic Act No. 7438 (An Act Defining Certain Rights
of Person Arrested, Detained or Under Custodial
Investigation as well as the Duties of the Arresting,
Detaining and Investigating Officers and Providing
Penalties for Violations Thereof);
2. Republic Act No. 8371 (The Indigenous PeoplesÊ Rights
Act of 1997);
3. Republic Act No. 9201 (National Human Rights
Consciousness Week Act of 2002);
4. Republic Act No. 9208 (Anti-Trafficking in Persons Act
of 2003);
5. Republic Act No. 9262 (Anti-Violence Against Women
and Their Children Act of 2004);
6. Republic Act No. 9344 (Juvenile Justice and Welfare
Act of 2006);
7. Republic Act No. 9372 (Human Security Act of 2007);
8. Republic Act No. 9710 (The Magna Carta of Women);
9. Republic Act No. 9745 (Anti-Torture Act of 2009);
10. Republic Act No. 9851 (Philippine Act on Crimes
Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity);
11. Republic Act No. 10121 (Philippine Disaster Risk
Reduction and Management Act of 2010);
284

Ocampo vs. Enriquez

12. Republic Act No. 10168 (The Terrorism Financing

Prevention and Suppression Act of 2012);
13. Republic Act No. 10353 (Anti-Enforced or
Involuntary Disappearance Act of 2012);
14. Republic Act No. 10364 (Expanded Anti-Trafficking
In Persons Act of 2012);
15. Republic Act No. 10368 (Human Rights Victims
Reparation and Recognition Act of 2013);
16. Republic Act No. 10530 (The Red Cross and Other
Emblems Act of 2013).
Contrary to petitionersÊ postulation, our nationÊs history

will not be instantly revised by a single resolve of President
Duterte, acting through the public respondents, to bury
Marcos at the LNMB. Whether petitioners admit it or not,
the lessons of Martial Law are already engraved, albeit in
varying degrees, in the hearts and minds of the present
generation of Filipinos. As to the unborn, it must be said
that the preservation and popularization of our history is
not the sole responsibility of the Chief Executive; it is a
joint and collective endeavor of every freedom-loving citizen
of this country.
Notably, complementing the statutory powers and
functions of the Human Rights VictimsÊ Claims Board and
the HRVV Memorial Commission in the memorialization of
HRVVs, the National Historical Commission of the
Philippines (NHCP), formerly known as the National
Historical Institute (NHI),94 is mandated to act as the
primary government agency responsible for history and is
authorized to determine all factual matters relating to
official Philippine history.95 Among others, it is tasked to:
(a) conduct and support all kinds of research relating to
Philippine national and local history; (b) develop
educational materials in various media, implement
historical educational activities for the popularization of
Philippine history, and disseminate, information regarding
Philippine historical events, dates, places and personages;
and (c) actively engage in the settlement or resolution of
controversies or
_______________

94 Sec. 4 of R.A. No. 10086.

95 Id., Sec. 5.
285
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Ocampo vs. Enriquez
issues relative to historical personages, places, dates and

events.96 Under R.A. Nos. 10066 (National Cultural
Heritage Act of 2009)97 and 10086 (Strengthening PeoplesÊ
Nationalism Through Philippine History Act),98 the
declared State policy is to conserve, develop, promote, and
popularize the nationÊs historical and cultural heritage and
resources.99 Towards this end, means shall be provided to
strengthen peopleÊs nationalism, love of country, respect for
its heroes and pride for the peopleÊs accomplishments by
reinforcing the importance of Philippine national and local
history in daily life with the end in view of raising social
consciousness.100 Utmost priority shall be given not only
with the research on history but also its popularization.101
II.
The PresidentÊs decision to bury Marcos at
the LNMB is not done whimsically, capri-
ciously or arbitrarily, out of malice, ill will
or personal bias
Petitioners contend that the interment of Marcos at the

LNMB will desecrate it as a sacred and hallowed place and
a revered national shrine where the mortal remains of our
countryÊs great men and women are interred for the
inspiration and emulation of the present generation and
generations to come. They erred.
National Shrines
A.
As one of the cultural properties of the Philippines,

national historical shrines (or historical shrines) refer to

sites or structures hallowed and
_______________
96 Id.
97 Approved on March 26, 2010.
98 Approved on May 12, 2010 and took effect on June 13, 2010.
99 Sec. 2 of R.A. 10066 and Sec. 2 of R.A. 10086.
100 Id.
101 Id.
286

Ocampo vs. Enriquez
revered for their history or association as declared by the

NHCP.102 The national shrines created by law and
presidential issuance include, among others: Fort Santiago
(Dambana ng Kalayaan) in Manila;103 all battlefield areas
in Corregidor and Bataan;104 the site of First Mass in the
Philippines in Magallanes, Limasawa, Leyte;105 Aguinaldo
Shrine or Freedom Shrine in Kawit, Cavite;106 Fort San
Antonio Abad National Shrine in Malate, Manila;107 Tirad
Pass National Shrine in Ilocos Sur;108 Ricarte Shrine109 and
Aglipay Shrine110 in Batac, Ilocos Norte; Liberty Shrine in
Lapu-Lapu, Cebu;111 „Red Beach‰ or the landing point of
General Douglas MacArthur and the liberating forces in
Baras, Palo, Leyte;112 Dapitan City as a National Shrine
City in Zamboanga Del Norte;113 General Leandro Locsin
Fullon National Shrine in Hamtic, Antique;114 and Mabini
Shrine in Polytechnic University of the Philippines-Mabini
Campus, Sta. Mesa, Manila.115 As sites of the birth, exile,
imprisonment, detention or death of great and eminent
leaders of the nation, it is the policy of the Government to
hold and keep the national shrines as sacred and hallowed
place.116 P.D. No. 105117 strictly prohibits
_______________

102 See Sec. 4(d) of R.A. 10066 in relation to Sec. 3(u) of R.A. No.
10066 and Sec. 3(n) of R.A. No. 10086. The Implementing Rules and
Regulations of R.A. No. 10086 specifically defines National Historical
Shrine as „a site or structure hallowed and revered for its association to
national heroes or historical events declared by the Commission.‰ (Art.
6[q], Rule 5, Title I)
103 R.A. No. 597, as amended by R.A. Nos. 1569 and 1607.
104 E.O. No. 58 issued on August 16, 1954 (See Arula v. Espino, 138
Phil. 570, 589-591; 28 SCRA 540, 555-557 [1969]).
105 R.A. No. 2733.
106 R.A. No. 4039.
107 Proclamation No. 207 dated May 27, 1967.
108 Proclamation No. 433 dated July 23, 1968.
109 R.A. No. 5648.
110 R.A. No. 5649.
111 R.A. No. 5695.
112 Proclamation No. 618 dated October 13, 1969, as amended by
Proclamation No. 1272 dated June 4, 1974.
113 R.A. No. 6468.
114 Batas Pambansa Bilang 309 dated November 14, 1982.
115 Proclamation No. 1992 dated February 8, 2010.
116 P.D. No. 105 dated January 24, 1973.
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and punishes by imprisonment and/or fine the desecration

of national shrines by disturbing their peace and serenity
through digging, excavating, defacing, causing unnecessary
noise, and committing unbecoming acts within their
premises. R.A. No. 10066 also makes it punishable to
intentionally modify, alter, or destroy the original features
of, or undertake construction or real estate development in
any national shrine, monument, landmark and other
historic edifices and structures, declared, classified, and
marked by the NHCP as such, without the prior written
permission from the National Commission for Culture and

the Arts (NCAA).118

As one of the cultural agencies attached to the NCAA,119
the NHCP manages, maintains and administers national
shrines, monuments, historical sites, edifices and
landmarks of significant historico-cultural value.120 In
particular, the NHCP Board has the power to approve the
declaration of historic structures and sites, such as
national shrines, monuments, landmarks and heritage
houses and to determine the manner of their identification,
maintenance, restoration, conservation, preservation and
protection.121
Excluded, however, from the jurisdiction of the NHCP
are the military memorials and battle monuments declared
as national shrines, which have been under the
administration, maintenance and development of the
Philippine Veterans Affairs Office (PVAO) of the DND.
Among the military shrines are: Mt. Samat National
Shrine in Pilar, Bataan;122 Kiangan War Memorial Shrine
in Linda, Kiangan, Ifugao;123 Capas National Shrine in
Capas, Tarlac;124 Ricarte National Shrine in
_______________
117 Entitled „DECLARING NATIONAL SHRINES AS SACRED (HALLOWED)

PLACES AND PROHIBITING DESECRATION THEREOF‰ (Signed on January 24,
1973).
118 Sec. 48(b).
119 Sec. 31(d) of R.A. No. 10066.
120 Sec. 5(d) of R.A. No. 10086.
121 Article 12(e) and (f), Rule 8, Title III of the Implementing Rules
and Regulations of R.A. No. 10086.
122 Proclamation No. 25 dated April 18, 1966.
123 Proclamation No. 1682 dated October 17, 1977.
124 Proclamation No. 842 dated December 7, 1991 and R.A. No. 8221.
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Malasin, Batac, Ilocos Norte;125 Balantang Memorial

Cemetery National Shrine in Jaro, Iloilo;126 Balete Pass
National Shrine in Sta. Fe, Nueva Vizcaya;127 USAFIP, NL
Military Shrine and Park in Bessang Pass, Cervantes,
Ilocos Sur;128 and the LNMB in Taguig City, Metro
Manila.129
The Libingan ng mga Bayani

B.
At the end of World War II, the entire nation was left
mourning for the death of thousands of Filipinos. Several
places served as grounds for the war dead, such as the
Republic Memorial Cemetery, the Bataan Memorial
Cemetery, and other places throughout the country. The
Republic Memorial Cemetery, in particular, was
established in May 1947 as a fitting tribute and final
resting place of Filipino military personnel who died in
World War II.
On October 23, 1954, President Ramon D. Magsaysay,
Sr. issued E.O. No. 77, which ordered „the remains of the
war dead interred at the Bataan Memorial Cemetery,
Bataan Province, and at other places in the Philippines, be
transferred to, and reinterred at, the Republic Memorial
Cemetery at Fort Wm Mckinley, Rizal Province‰ so as to
minimize the expenses for the maintenance and upkeep,
and to make the remains accessible to the widows, parents,
children, relatives, and friends.
On October 27, 1954, President Magsaysay issued
Proclamation No. 86, which changed the name of Republic
Memorial Cemetery to Libingan ng mga Bayani to
symbolize „the cause for which our soldiers have died‰ and
to „truly express the nationÊs esteem and reverence for her
war dead.‰130
On July 12, 1957, President Carlos P. Garcia issued
Proclamation No. 423, which reserved for military
purposes, under the administration of
_______________
125 Proclamation No. 228 dated August 12, 1993.

126 Proclamation No. 425 dated July 13, 1994.
127 R.A. No. 10796.

128 <http://server.pvao.mil.ph/PDF/shrines/usafipnl.pdf>, (last

accessed on September 19, 2016).
129 Proclamation No. 208 dated May 28, 1967.
130 See Whereas Clause of Proclamation No. 86.
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the AFP Chief of Staff, the land where LNMB is located.

The LNMB was part of a military reservation site then
known as Fort Wm McKinley (now known as Fort Andres
Bonifacio).
On May 28, 1967, Marcos issued Proclamation No. 208,
which excluded the LNMB from the Fort Bonifacio military
reservation and reserved the LNMB for national shrine
purposes under the administration of the National Shrines
Commission (NSC) under the DND.
On September 24, 1972, Marcos, in the exercise of his
powers as the AFP Commander-in-Chief, and pursuant to
Proclamation No. 1081 dated September 21, 1972, and
General Order No. 1 dated September 22, 1972, as
amended, issued Presidential Decree (P.D.) No. 1 which
reorganized the Executive Branch of the National
Government through the adoption of the Integrated
Reorganization Plan (IRP). Section 7, Article XV, Chapter I,
Part XII thereof abolished the NSC and its functions
together with applicable appropriations, records,
equipment, property and such personnel as may be
necessary were transferred to the NHI under the
Department of Education (DEC). The NHI was responsible
for promoting and preserving the Philippine cultural
heritage by undertaking, inter alia, studies on Philippine
history and national heroes and maintaining national
shrines and monuments.131
Pending the organization of the DEC, the functions
relative to the administration, maintenance and
development of national shrines tentatively integrated into

the PVAO in July 1973.

On January 26, 1977, President Marcos issued P.D. No.
1076. Section 7, Article XV, Chapter I, Part XII of the IRP
was repealed on the grounds that „the administration,
maintenance and development of national shrines
consisting of military memorials or battle monuments can
be more effectively accomplished if they are removed from
the [DEC] and transferred to the [DND] by reason of the
latterÊs greater capabilities and resources‰ and that „the
functions of the [DND] are more closely related and relevant
to the charter or significance of said national shrines.‰
Henceforth, the PVAO · through the Military Shrines
Service (MSS), which was created to perform the functions
of the abolished NSC ·
_______________
131 Section 1, Article XV, Chapter I, Part XII of the IRP.
290

Ocampo vs. Enriquez
would administer, maintain and develop military

memorials and battle monuments proclaimed as national
shrines.
On July 25, 1987, President Corazon C. Aquino issued
the Administrative Code. The Code retains PVAO under
the supervision and control of the Secretary of National
Defense.132 Among others, PVAO shall administer, develop
and maintain military shrines.133 With the approval of
PVAO Rationalization Plan on June 29, 2010, pursuant to
E.O. No. 366 dated October 4, 2004, MSS was renamed to
Veterans Memorial and Historical Division, under the
supervision and control of PVAO, which is presently tasked
with the management and development of military shrines
and the perpetuation of the heroic deeds of our nationÊs
veterans.

As a national military shrine, the main features,

structures, and facilities of the LNMB are as follows:
1. Tomb of the Unknown Soldiers – The main structure

constructed at the center of the cemetery where wreath laying
ceremonies are held when Philippine government officials and
foreign dignitaries visit the LNMB. The following inscription is
found on the tomb: „Here lies a Filipino soldier whose name is
known only to God.‰ Behind the tomb are three marble pillars
representing the three main island groups of the Philippines ·
Luzon, Visayas and Mindanao. Buried here were the remains of
39,000 Filipino soldiers who were originally buried in Camp
OÊDonnell Concentration Camp and Fort Santiago, Intramuros,
Manila.
2. Heroes Memorial Gate – A structure shaped in the form of a
large concrete tripod with a stairway leading to an upper view
deck and a metal sculpture at the center. This is the first
imposing structure one sees upon entering the grounds of the
cemetery complex.
3. Black Stone Walls – Erected on opposite sides of the main
entrance road leading to the Tomb of the Unknown Soldiers and
just near the Heroes Memorial are two 12-foot high black
_______________
132 Book IV, Title VIII, Subtitle II, Chapter 1, Sec. 18.
133 Id., Chapter 5, Sec. 32(4).
291
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stone walls which bear the words, „I do not know the dignity of
his birth, but I do know the glory of his death.‰ that General
Douglas MacArthur made during his sentimental journey to the
Philippines in 1961.
4. Defenders of Bataan and Corregidor Memorial Pylon –
Inaugurated on April 5, 1977 by Secretary Renato S. De Villa in

memory of the defenders of Bataan and Corregidor during World

War II. This monument is dedicated as an eternal
acknowledgment of their valor and sacrifice in defense of the
Philippines.
5. Korean Memorial Pylon – A towering monument honoring the
112 Filipino officers and men who, as members of the Philippine
Expeditionary Forces to Korea (PEFTOK), perished during the
Korean War.
6. Vietnam Veterans Memorial Pylon – Dedicated to the
members of the Philippine Contingents and Philippine Civic
Action Groups to Vietnam (PHILCON-V and PHILCAG-V) who
served as medical, dental, engineering construction, community
and psychological workers, and security complement. They
offered tremendous sacrifices as they alleviated human suffering
in war-ravaged Vietnam from 1964-1971. Inscribed on the
memorial pylon are the words: „To build and not to destroy, to
bring the Vietnamese people happiness and not sorrow, to develop
goodwill and not hatred.‰
7. Philippine World War II Guerillas Pylon – Erected by the
Veterans Federation of the Philippines as a testimony to the
indomitable spirit and bravery of the Filipino guerillas of World
War II who refused to be cowed into submission and carried on
the fight for freedom against an enemy with vastly superior arms
and under almost insurmountable odds. Their hardship and
sufferings, as well as their defeats and victories, are enshrined in
this memorial.134
_______________
134 See Annex to the Manifestation of the AFP Adjutant General and
<http://server.pvao.mil.ph/PDF/shrines/libingan.pdf> (last accessed on
October 25, 2016).
292

Ocampo vs. Enriquez
Contrary to the dissent, P.D. No. 105135 does not apply to

the LNMB. Despite the fact that P.D. No. 208 predated P.D.
No. 105,136 the LNMB was not expressly included in the
national shrines enumerated in the latter.137 The
proposition that the LNMB is implicitly covered in the
catchall phrase „and others which may be proclaimed in the
future as National Shrines‰ is erroneous because:
(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No.
105.
(2) Following the canon of statutory construction known
as ejusdem generis,138 the LNMB is not a site „of the birth,
exile, imprisonment, de-
_______________
135 P.D. No. 105 is an issuance of Marcos, acting as the AFP

Commander-in-Chief and by virtue of his powers under the Martial Law.
It was not a law that was enacted by the Congress.
136 P.D. No. 208 was signed on May 28, 1967 while P.D. No. 105 was
signed on January 24, 1973.
137 Among those named were the birthplace of Dr. Jose Rizal in
Calamba, Laguna, Talisay, Dapitan City, where the hero was exiled for
four years, Fort Santiago, Manila, where he was imprisoned in 1896
prior to his execution; Talaga, Tanauan, Batangas where Apolinario
Mabini was born, Pandacan, Manila, where MabiniÊs house in which he
died, is located; Aguinaldo Mansion in Kawit, Cavite, where General
Emilio Aguinaldo, first President of the Philippines, was born, and where
Philippine Independence was solemnly proclaimed on June 12, 1898; and
Batan, Aklan, where the „Code of Kalantiyaw‰ was promulgated in 1433.
138 Under the principle of ejusdem generis, „where a general word or
phrase follows an enumeration of particular and specific words of the
same class or where the latter follow the former, the general word or
phrase is to be construed to include, or to be restricted to persons, things
or cases akin to, resembling, or of the same kind or class as those
specifically mentioned.‰
The purpose and rationale of the principle was explained by the Court
in National Power Corporation v. Angas as follows:
The purpose of the rule on ejusdem generis is to give effect to both the
particular and general words, by treating the particular words as indicating
the class and the general words as including all that is embraced in said class,
although not specifically named by the particular words. This is justified on the
ground that if the lawmaking body intended the general terms to be used in
their unrestricted sense, it would have not made an enumeration of particular

subjects but would have used only general terms. [2 Sutherland, Statutory
293
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Ocampo vs. Enriquez
tention or death of great and eminent leaders of the nation.‰

What P.D. No. 105 contemplates are the following national
shrines: Fort Santiago („Dambana ng Kalayaan‰), all
battlefield areas in Corregidor and Bataan, the site of First
Mass in the Philippines, Aguinaldo Shrine or Freedom
Shrine, Fort San Antonio Abad National Shrine, Tirad Pass
National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty
Shrine, „Red Beach‰ or the landing point of General
Douglas MacArthur and the liberating forces, Dapitan City,
General Leandro Locsin Fullon National Shrine, and
Mabini Shrine. Excluded are the military memorials and
battle monuments declared as national shrines under the
PVAO, such as: Mt. Samat National Shrine, Kiangan War
Memorial Shrine, Capas National Shrine, Ricarte National
Shrine, Balantang Memorial Cemetery National Shrine,
Balete Pass National Shrine; USAFIP, NL Military Shrine
and Park, and the LNMB.
(3) Since its establishment, the LNMB has been a
military shrine under the jurisdiction of the PVAO. While
P.D. No. 1 dated September 24, 1972 transferred the
administration, maintenance and development of national
shrines to the NHI under the DEC, it never actually
materialized. Pending the organization of the DEC, its
functions relative to national shrines were tentatively
integrated into the PVAO in July 1973. Eventually, on
January 26, 1977, Marcos issued P.D. No. 1076. The PVAO,
through the MSS, was tasked to administer, maintain, and
develop military memorials and battle monuments
proclaimed as national shrines. The reasons being that „the
administration, maintenance and development of national
shrines consisting of military memorials or battle
monuments can be more effectively accomplished if they are

removed from the [DEC] and transferred to the [DND] by

reason of the latterÊs greater capabilities and resources‰ and
that „the functions of the [DND] are more closely related
and relevant to the charter or significance of said national
shrines.‰
_______________
Construction, 3rd ed., pp. 395-400]. (See Pelizloy Realty Corp. v. Province of
Benguet, 708 Phil. 466, 480-481; 695 SCRA 491, 505-506 [2013], as cited in Alta
Vista Golf and Country Club v. City of Cebu, G.R. No. 180235, January 20,
2016, 781 SCRA 335, 357-360)
294

Ocampo vs. Enriquez
The foregoing interpretation is neither narrow and

myopic nor downright error. Instead, it is consistent with
the letter and intent of P.D. No. 105.
Assuming that P.D. No. 105 is applicable, the descriptive
words „sacred and hallowed‰ refer to the LNMB as a place
and not to each and every mortal remains interred therein.
Hence, the burial of Marcos at the LNMB does not
diminish said cemetery as a revered and respected ground.
Neither does it negate the presumed individual or collective
„heroism‰ of the men and women buried or will be buried
therein. The „nations esteem and reverence for her war
dead,‰ as originally contemplated by President Magsaysay
in issuing Proclamation No. 86, still stands unaffected.
That being said, the interment of Marcos, therefore, does
not constitute a violation of the physical, historical, and
cultural integrity of the LNMB as a national military
shrine.
At this juncture, reference should be made to Arlington
National Cemetery (Arlington), which is identical to the
LNMB in terms of its prominence in the U.S. It is not
amiss to point that our armed forces have been patterned

after the U.S. and that its military code produced a

salutary effect in the PhilippinesÊ military justice system.139
Hence, relevant military rules, regulations, and practices of
the U.S. have persuasive, if not the same, effect in this
jurisdiction.
As one of the U.S. Army national military cemeteries,140
the Arlington is under the jurisdiction of the Department of
the Army.141 The Secretary of the U.S. Army has the
responsibility to develop, operate, manage, administer,
oversee, and fund the Army national military cemeteries in
a manner and to standards that fully honor the service and
sacrifices of the deceased members of the armed forces
buried or inurned therein, and shall prescribe such
regulations and policies as may be necessary to administer
the cemeteries.142 In addition, the Secretary of the U.S.
Army
_______________
139 See Cudia v. The Superintendent of the Philippine Military

Academy (PMA), G.R. No. 211362, February 24, 2015, 751 SCRA 469,
542.
140 Also includes the United States SoldiersÊ and AirmenÊs National
Cemetery in the District of Columbia.
141 See 32 C.F.R. § 553.3 and 10 U.S.C.A. § 4721.
142 Id.
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Ocampo vs. Enriquez
is empowered to appoint an advisory committee, which

shall make periodic reports and recommendations as well
as advise the Secretary with respect to the administration
of the cemetery, the erection of memorials at the cemetery,
and master planning for the cemetery.143
Similar to the Philippines, the U.S. national cemeteries
are established as national shrines in tribute to the gallant

dead who have served in the U.S. Armed Forces.144 The

areas are protected, managed and administered as suitable
and dignified burial grounds and as significant cultural
resources.145 As such, the authorization of activities that
take place therein is limited to those that are consistent
with applicable legislation and that are compatible with
maintaining their solemn commemorative and historic
character.146
The LNMB is considered as a national shrine for
military memorials. The PVAO, which is empowered to
administer, develop, and maintain military shrines, is
under the supervision and control of the DND. The DND,
in turn, is under the Office of the President.
The presidential power of control over the Executive
Branch of Government is a self-executing provision of the
Constitution and does not require statutory
implementation, nor may its exercise be limited, much less
withdrawn, by the legislature.147 This is why President
Duterte is not bound by the alleged 1992 Agreement148
between former President
_______________
143 10 U.S.C.A. § 4723.

144 36 C.F.R. § 12.2.
145 Id.
146 Id.
147 See National Electrification Administration v. Commission on
Audit, 427 Phil. 464, 485; 377 SCRA 223, 240 (2002).
148 On August 19, 1992, the Government of the Republic of the
Philippines, represented by Department of Interior and Local
Government (DILG) Secretary Rafael M. Alunan III, and the family of
the late President Marcos, represented by his widow, Mrs. Imelda R.
Marcos, agreed on the following conditions and procedures by which the
remains of the former President shall be brought back to and interred in
the Philippines:
296

Ocampo vs. Enriquez
_______________
I
It is hereby agreed that the remains of former President Ferdinand E.
Marcos shall be allowed to be brought back to the Philippines from Hawaii,
USA on 1 September 1992.
II
That the remains shall be brought directly from Hawaii, USA to Laoag,
Ilocos Norte by means of an aircraft which shall fly directly to its port of
destination at Laoag International Airport, Laoag, Ilocos Norte. It shall be
understood that once the aircraft enters the Philippine area of responsibility,
stopover for whatever reason in any airport other than the airport of
destination shall be allowed only upon prior clearance from the Philippine
Government.
III
That the family of the late President Marcos undertakes to fix a wake period
of nine (9) days beginning 1 September 1992 to allow friends, relatives and
supporters to pay their courtesy, last respect and homage to the former
President at the Marcos family home at Batac, Ilocos Norte. It shall undertake
further to maintain peaceful and orderly wake and/or help and cooperate with
the local government authorities ensure that the same will not be used to
foment and promote civil disorder.
IV
That the remains shall be buried [temporarily interred] on the 9th of
September 1992 at the family burial grounds at Batac, Ilocos Norte, provided
that any transfer of burial grounds shall be with prior clearance from the
Philippine Government taking into account the prevailing socio-political
climate.
V
The government shall provide appropriate military honors during the wake
and interment, the details of which shall be arranged and finalized by and
between the parties thereto.
VI
The Government shall ensure that the facilities at Laoag International
Airport will allow for a safe landing as well as processing of incoming
passengers, their cargoes and/or existing laws and regulations.
297

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Ocampo vs. Enriquez
Ramos and the Marcos family to have the remains of

Marcos interred in Batac, Ilocos Norte. As the incumbent
President, he is free to amend,
_______________
On August 26, 1992, DILG Secretary Alunan informed Mrs. Marcos of

the governmentÊs decision that former President Marcos be accorded
honors befitting a war veteran, and a former member of the AFP which,
in general terms, includes the following: Flag Draped Coffin, Vigil
Guards during the wake, Honor Guard, Firing Detail, Taps, and
Pallbearers composed of retired generals under his command.
On August 25, 1993, Roque R. Ablan, Jr. wrote DILG Secretary
Alunan, confirming the previous arrangements between him and Mrs.
Marcos, and also the arrangements made by Ablan before President
Fidel V. Ramos on the following matters:
1. Direct flight of the remains of the late Pres. Marcos from
Honolulu to Laoag.
2. That there will be an interim burial of the late Pres. Marcos
in Batac, Ilocos Norte until such time when President Ramos will
feel that the healing period would have been attain[ed] and that
he shall be transferred to Manila for final burial.
3. That the remains will not be paraded to the other provinces.
4. That [Ablan] discussed this with Mrs. Marcos this morning
and that she had given me full authority to assure the government
that everything will be in accordance with the memo of
understanding, and the pronouncement made by President Ramos
that the remains can stay at the Don Mariano Marcos State
University provided no government expenditures will be incurred
and that the place will not be disturbed.
Ablan also informed DILG Secretary Alunan of the following details:
(1) the remains of former President Marcos would arrive in Laoag City,
Ilocos Norte on September 7, 1993; (2) from the airport, the remains
would be brought to the Laoag City Cathedral, and after the mass, it
would be brought to the Capitol for public viewing; (3) on the next day,
the remains would be brought to Batac where it should be placed side by
side with the late Doña Josefa Edralin Marcos; (4) that on September 9,

Doña Josefa Marcos would be buried in the cemetery besides Governor

Elizabeth Marcos Roca; and (5) on September 10, the late President
Marcos would be buried in the mausoleum.
On September 10, 1993, the coffin of former President Marcos was
opened inside the mausoleum and was subsequently placed inside a
transparent glass for viewing.
298

Ocampo vs. Enriquez
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.
Moreover, 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.149 At present, there is no law or executive
issuance specifically excluding the land in which the
LNMB is located from the use it was originally intended by
the past Presidents. The allotment of a cemetery plot at the
LNMB for Marcos as a former President and Commander-
in-Chief,150 a legislator,151 a Secretary of National
Defense,152 a military personnel,153 a veteran,154 and a
Medal of Valor awardee,155
_______________
149 Book III, Title I, Chapter 4, Section 14 of the Administrative

Code.
150 From December 30, 1965 until February 25, 1986 when he and
his immediate family members were forcibly exiled in the USA because of
the EDSA People Power Revolution.
151 He was an Assemblyman (1949 to 1959) and a Senator (1959-
1965), serving as Senate President during his last three (3) years.

152 From December 31, 1965 to January 20, 1967.

153 On November 15, 1941, Marcos was called and inducted to the
United States Armed Forces in the Far East (USAFFE) as Third
Lieutenant. From November 16, 1941 to April 8, 1942, he was assigned
as assistant G-2 of the 21st (Lightning) Division of the USAFFE, where
he attained the rank of First Lieutenant. He was then promoted to the
rank of Colonel under Special Orders No. 68 dated September 25, 1962.
In Special Orders No. 264 dated June 11, 1963 and General Orders No.
265 dated May 19, 1964, he remained listed as Colonel. (See Annex „13‰
of the Consolidated Comment filed by the OSG).
154 The PVAO recognized Marcos as a member of the retired army
personnel. Based on a Certification dated August 18, 2016 issued by
PVAOÊs Records Management Division Chief, respondent Imelda
Romualdez Marcos is receiving P5,000.00 as Old Age Pension, being the
surviving spouse of a retired veteran under R.A. No. 6948, as amended.
(See Annex „12‰ of the Consolidated Comment filed by the OSG).
155 During his military career, Marcos was awarded a Medal of Valor
through General Orders No. 167 dated October 16, 1968 „for
extraordinary gallantry and intrepidity at the risk of life, above and
beyond the call of duty in a
299
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Ocampo vs. Enriquez
whether recognizing his contributions or simply his status

as such, satisfies the public use requirement. The
disbursement of public funds to cover the expenses
incidental to the burial is granted to compensate him for
valuable public services rendered.156 Likewise, President
DuterteÊs determination to have MarcosÊ remains interred
at the LNMB was inspired by his desire for national
healing and reconciliation. Presumption of regularity in the
performance of official duty prevails over petitionersÊ 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.
AFP Regulations on the LNMB

C.
A review of the regulations issued by the AFP Chief of

Staff as to who may and may not be interred at the LNMB
underscores the nature and purpose of the LNMB as an
active military cemetery/grave site.
On May 13, 1947, the Chief of Staff of the Philippine
Army, by the direction of the President and by order of the
Secretary of National Defense, issued General Orders No.
111, which constituted and activated, as of said date, the
Graves Registration Platoon as a unit of the Philippine
Army.
On February 2, 1960, the AFP Chief of Staff, by order of
the Secretary of National Defense, issued AFP Regulations
G 161-371 (Administrative and Special Staff Services,
Grave Registration Service), which provided that the
following may be interred in the LNMB: (a) World War II
dead of the AFP and recognized guerillas; (b) Current dead
of the AFP; (c) Retired military personnel of the AFP; (d)
Remains of former members of the AFP
_______________
suicidal action against overwhelming enemy forces at the junction of

Salian River and Abo-Abo River, Bataan, on or about 22 January 1942.‰
(See Annex „14‰ of Consolidated Comment filed by the OSG).
156 See Yap v. Commission on Audit, 633 Phil. 174, 188; 619 SCRA
154, 166-167 (2010).
300

Ocampo vs. Enriquez

who died while in the active service and in the Retired List
of the AFP now interred at different cemeteries and other
places throughout the Philippines or the Secretary of
National Defense; and (e) Others upon approval of the
Congress of the Philippines, the President of the
Philippines or the Secretary of National Defense. The
regulation also stated that the AFP Quartermaster General
will be responsible for, among other matters, the efficient
operation of the Graves Registration Service; the
interment, disinterment and reinterment of the dead
mentioned above; and preservation of military cemeteries,
national cemeteries, and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the
Secretary of National Defense, issued AFP Regulations G
161-372 (Administration and Operation of AFP Graves
Registration Installations), which superseded AFP
Regulations G 161-371. It provided that the following may
be interred in the LNMB: (a) Deceased Veterans of the
Philippine Revolution of 1896/World War I; (b) Deceased
World War II members of the AFP and recognized guerillas;
(c) Deceased military personnel of the AFP who died while
in the active duty; (d) Deceased retired military personnel
of the AFP; (e) Deceased military personnel of the AFP
interred at different cemeteries and other places outside
the LNMB; and (f) Such remains of persons as the
Commander-in-Chief of the AFP may direct. The remains
of the following were not allowed to be interred in the
LNMB: (a) The spouse of an active, or retired, deceased
military personnel, recognized guerillas who
himself/herself is not a military personnel; and (b) AFP
personnel who were retireable but
separated/reverted/discharged for cause, or joined and
aided the enemy of the Republic of the Philippines, or were
convicted of capital or other criminal offenses, involving
moral turpitude. The regulation also stated that the
Quartermaster General shall be responsible for, among
other matters, the efficient operation of the AFP graves
registration installations; the interment, disinterment and
reinterment of deceased military personnel mentioned
above; and the preservation of military cemeteries, proper
marking and official recording of graves therein.
On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by

order of National Defense Minister, issued AFP

Regulations G 161-373 (Allocation of Cemetery Plots at the
Libingan ng mga Bayani), which superseded
301
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Ocampo vs. Enriquez
AFP Regulations G 161-372. It enumerated a list of

deceased person who may be interred at the LNMB,
namely: (a) Medal of Valor Awardees; (b) Presidents or
Commanders-in-Chief, AFP; (c) Ministers of National
Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers
of the AFP; (f) Active and retired military personnel of the
AFP; (g) Veterans of Philippine Revolution of 1896, WWI,
WWII and recognized guerillas; and (h) Government
Dignitaries, Statesmen, National Artist and other deceased
persons whose interment or reinterment has been approved
by the Commander-in-Chief, Batasang Pambansa or the
Minister of National Defense. The regulation also stated
that the Quartermaster General shall be responsible for
the allocation of specific section/areas for the said deceased
persons, while the Commanding Officer of the
Quartermaster Graves Registration Company shall be
charged with the preparation of grave sites, supervision of
burials at LNMB and the registration of graves.
On March 27, 1998, the AFP Chief of Staff, by order of
the Secretary of National Defense, issued AFP Regulations
G 161-374 (Allocation of Cemetery Plots at the Libingan ng
mga Bayani), which superseded AFP Regulations G 161-
373. It provided that the following may be interred in the
LNMB: (a) Medal of Valor Awardees; (b) Presidents or
Commanders-in-Chief, AFP; (c) Secretaries of National
Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers
of the AFP; (f) Active and retired military personnel of the
AFP; (g) Veterans of Philippine Revolution of 1890, WWI,
WWII and recognized guerillas; (h) Government
Dignitaries, Statesmen, National Artists and other
deceased persons whose interment or reinterment has been

approved by the Commander-in-Chief, Congress or

Secretary of National Defense; and (i) Former Presidents,
Secretaries of Defense, CSAFP, Generals/Flag Officers,
Dignitaries, Statesmen, National Artists, widows of former
Presidents, Secretaries of National Defense and Chief of
Staff. The remains of the following were not allowed to be
interred in the LNMB: (a) Personnel who were
dishonorably separated/reverted/discharged from the
service; and (b) Authorized personnel who were convicted
by final judgment of an offense involving moral turpitude.
Like AFP Regulations G 161-373, it stated that the
Quartermaster General shall be responsible for the
allocation of specific section/areas for the deceased persons,
whereas the Commanding Officer of the Quartermaster
Graves Registration Unit shall be
302

Ocampo vs. Enriquez
charged with the preparation of grave sites, supervision of

burials, and the registration of graves.
Finally, on September 11, 2000, the AFP Chief of Staff,
by the order of the Secretary of National Defense, issued
AFP Regulations G 161-375 (Allocation of Cemetery Plots
at the Libingan ng mga Bayani), which superseded AFP
Regulations G 161-374. The regulation stated that the
Chief of Staff shall be responsible for the issuance of
interment directive for all active military personnel for
interment, authorized personnel (such as those former
members of the AFP who laterally entered or joined the
Philippine Coast Guard [PCG] and the Philippine National
Police [PNP]), and retirees, veterans and reservists
enumerated therein. The Quartermaster General is tasked
to exercise overall supervision in the implementation of the
regulation and the Commander ASCOM, PA through the
Commanding Officer of Grave Services Unit is charged
with the registration of the deceased/graves, the allocation
of specific section/area at the LNMB for interment of

deceased, the preparation of grave sites, and the

supervision of burials.
Under AFP Regulations G 161-375, the following are
eligible for interment at the LNMB: (a) Medal of Valor
Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c)
Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e)
General/Flag Officers of the AFP; (f) Active and retired
military personnel of the AFP to include active draftees
and trainees who died in line of duty, active reservists and
CAFGU Active Auxiliary (CAA) who died in combat
operations or combat related activities;
(g) Former members of the AFP who laterally entered or
joined the PCG and the PNP; (h) Veterans of Philippine
Revolution of 1890, WWI, WWII and recognized guerillas;
(i) Government Dignitaries, Statesmen, National Artists
and other deceased persons whose interment or
reinterment has been approved by the Commander-in-
Chief, Congress or the Secretary of National Defense; and
(j) Former Presidents, Secretaries of Defense, Dignitaries,
Statesmen, National Artists, widows of Former Presidents,
Secretaries of National Defense and Chief of Staff. Similar
to AFP Regulations G 161-374, the following are not
qualified to be interred in the LNMB: (a) Personnel who
were dishonorably separated/reverted/discharged from the
service; and (b) Authorized personnel who were convicted
by final judgment of an offense involving moral turpitude.
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In the absence of any executive issuance or law to the

contrary, the AFP Regulations G 161-375 remains to be the
sole authority in determining who are entitled and
disqualified to be interred at the LNMB. Interestingly, even
if they were empowered to do so, former Presidents
Corazon C. Aquino and Benigno Simeon C. Aquino III, who
were themselves aggrieved at the Martial Law, did not
revise the rules by expressly prohibiting the burial of

Marcos at the LNMB. The validity of AFP Regulations G

161-375 must, therefor, be sustained for having been issued
by the AFP Chief of Staff acting under the direction of the
Secretary of National Defense, who is the alter ego of the
President.
x x x In Joson v. Torres, we explained the concept of the alter ego

principle or the doctrine of qualified political agency and its limit in
this wise:
Under this doctrine, which recognizes the establishment of a
single executive, all executive and administrative organizations are
adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally,
the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive. (Emphasis ours,
citation omitted)157
It has been held that an administrative regulation

adopted pursuant to law has the force and effect of law and,
until set aside, is binding upon executive and
administrative agencies, including the President as the
chief executor of laws.158
_______________
157 Resident Marine Mammals of the Protected Seascape Tañon Strait

v. Reyes, G.R. Nos. 180771 & 181527, April 21, 2015, 756 SCRA 513, 560-
561.
Executive Secretary, supra note 46 at p. 166; pp. 312-313.
304


Ocampo vs. Enriquez
Qualification under the AFP Regulations

1.
AFP Regulations G 161-375 should not be stricken down

in the absence of clear and unmistakable showing that it
has been issued with grave abuse of discretion amounting
to lack or excess of jurisdiction. Neither could it be
considered ultra vires for purportedly providing incomplete,
whimsical, and capricious standards for qualification for
burial at the LNMB.
To compare, We again refer to the U.S. Army regulations
on Arlington. In the U.S., the Secretary of the Army, with
the approval of the Secretary of Defense, determines
eligibility for interment or inurnment in the Army national
military cemeteries.159 Effective October 26, 2016, the
rule160 is as follows:
Only those who qualify as a primarily eligible person or a

derivatively eligible person are eligible for interment in Arlington
National Cemetery, unless otherwise prohibited as provided for in
§§ 553.19161-553.20,162 provided that the last period of active duty of
the service member or veteran ended with an honorable discharge.
_______________
159 10 U.S.C.A. § 4722.

160 32 C.F.R. § 553.12.
161 The following persons are not eligible for interment, inurnment,
or memorialization in an Army National Military Cemetery:
(a) A father, mother, brother, sister, or in-law solely on the basis of
his or her relationship to a primarily eligible person, even though the
individual is:
(1) Dependent on the primarily eligible person for support; or
(2) A member of the primarily eligible personÊs household.
(b) A person whose last period of service was not characterized as an
honorable discharge (e.g., a separation or discharge under general but
honorable conditions, other than honorable conditions, a conduct
discharge, a dishonorable discharge, or a dismissal), regardless of
whether the person:
(1) Received any other veteransÊ benefits; or

(2) Was treated at a Department of Veterans Affairs hospital or died

in such a hospital.
(c) A person who has volunteered for service with the U.S. Armed
Forces, but has not yet entered on active duty.
(d) A former spouse whose marriage to the primarily eligible person
ended in divorce.
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Ocampo vs. Enriquez
_______________
(e) A spouse who predeceases the primarily eligible person and is

interred or inurned in a location other than Arlington National
Cemetery, and the primarily eligible person remarries.
(f) A divorced spouse of a primarily eligible person.
(g) Otherwise derivatively eligible persons, such as a spouse or minor
child, if the primarily eligible person was not or will not be interred or
inurned at Arlington National Cemetery.
(h) A service member who dies while on active duty, if the first
General Courts Martial Convening Authority in the service memberÊs
chain of command determines that there is clear and convincing evidence
that the service member engaged in conduct that would have resulted in
a separation or discharge not characterized as an honorable discharge
(e.g., a separation or discharge under general but honorable conditions,
other than honorable conditions, a bad conduct discharge, a dishonorable
discharge, or a dismissal) being imposed, but for the death of the service
member.
(i) Animal remains. If animal remains are unintentionally
commingled with human remains due to a natural disaster, unforeseen
accident, act of war or terrorism, violent explosion, or similar incident,
and such remains cannot be separated from the remains of an eligible
person, then the remains may be interred or inurned with the eligible
person, but the identity of the animal remains shall not be inscribed or
identified on a niche, marker, headstone, or otherwise. (See 32 C.F.R. §
553.19)
162 (a) Prohibition. Notwithstanding §§ 553.12-553.16, 553.18, and

553.22, pursuant to 10 U.S.C. 985 and 38 U.S.C. 2411, the interment,

inurnment, or memorialization in an Army National Military Cemetery
of any of the following persons is prohibited:
(1) Any person identified in writing to the Executive Director by the
Attorney General of the United States, prior to his or her interment,
inurnment, or memorialization, as a person who has been convicted of a
Federal capital crime and whose conviction is final (other than a person
whose sentence was commuted by the President).
(2) Any person identified in writing to the Executive Director by an
appropriate State official, prior to his or her interment, inurnment, or
memorialization, as a person who has been convicted of a State capital
crime and whose conviction is final (other than a person whose sentence
was commuted by the Governor of the State).
(3) Any person found under procedures specified in § 553.21 to have
committed a Federal or State capital crime but who has not been
convicted of such crime by reason of such person not being available for
trial due to death or flight
306

Ocampo vs. Enriquez
(a) Primarily eligible persons. The following are primarily eligible

persons for purposes of interment:
(1) Any service member who dies on active duty in the U.S. Armed
Forces (except those service members serving on active duty for
training only), if the General Courts Martial Convening Authority
grants a certificate of honorable service.
(2) Any veteran retired from a Reserve component who served a
period of active duty (other than for training), is carried on the
official retired list, and is entitled to receive military retired pay.
(3) Any veteran retired from active military service and entitled to
receive military retired pay.
(4) Any veteran who received an honorable discharge from the
Armed Forces prior to October 1, 1949, who was discharged for a
permanent physical disability, who served on active duty (other
than
_______________

to avoid prosecution. Notice from officials is not required for this

prohibition to apply.
(4) Any person identified in writing to the Executive Director by the
Attorney General of the United States or by an appropriate State official,
prior to his or her interment, inurnment, or memorialization, as a person
who has been convicted of a Federal or State crime causing the person to
be a Tier III sex offender for purposes of the Sex Offender Registration
and Notification Act, who for such crime is sentenced to a minimum of
life imprisonment and whose conviction is final (other than a person
whose sentence was commuted by the President or the Governor of a
State, as the case may be).
(b) Notice. The Executive Director is designated as the Secretary of
the ArmyÊs representative authorized to receive from the appropriate
Federal or State officials notification of conviction of capital crimes
referred to in this section.
(c) Confirmation of personÊs eligibility.
(1) If notice has not been received, but the Executive Director has
reason to believe that the person may have been convicted of a Federal
capital crime or a State capital crime, the Executive Director shall seek
written confirmation from:
(i) The Attorney General of the United States, with respect to a
suspected Federal capital crime; or
(ii) An appropriate State official, with respect to a suspected State
capital crime.
(2) The Executive Director will defer the decision on whether to
inter, inurn, or memorialize a decedent until a written response is
received. (See 32 C.F.R. § 553.20)
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Ocampo vs. Enriquez
for training), and who would have been eligible for retirement
under the provisions of 10 U.S.C. 1201 had the statute been in
effect on the date of separation.
(5) Any veteran awarded one of the following decorations:
(i) Medal of Honor;163
(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;

(iii) Distinguished Service Medal;

(iv) Silver Star; or
(v) Purple Heart.
(6) Any veteran who served on active duty (other than active duty
for training) and who held any of the following positions:
(i) President or Vice President of the United States;
(ii) Elected member of the U.S. Congress;
(iii) Chief Justice of the Supreme Court of the United States or
Associate Justice of the Supreme Court of the United States;
(iv) A position listed, at the time the person held the position, in 5
U.S.C. 5312164 or 5313165 (Levels I and II of the Executive
Schedule); or
_______________
163 The medal of honor awarded posthumously to a deceased member

of the armed forces who, as an unidentified casualty of a particular war
or other armed conflict, is interred in the Tomb of the Unknowns at
Arlington National Cemetery, Virginia, is awarded to the member as the
representative of the members of the armed forces who died in such war
or other armed conflict and whose remains have not been identified, and
not to the individual personally. (10 U.S.C.A. § 1134)
164 Includes the Secretary of State, Secretary of the Treasury,
Secretary of Defense, Attorney General, Secretary of the Interior,
Secretary of Agriculture, Secretary of Commerce, Secretary of Labor,
Secretary of Health and Human Services, Secretary of Housing and
Urban Development, Secretary of Transportation, United States Trade
Representative, Secretary of Energy, Secretary of Education, Secretary of
Veterans Affairs, Secretary of Homeland Security, Director of the Office
of Management and Budget, Commissioner of Social Security, Social
Security Administration, Director of National Drug Control Policy,
Chairman and Board of Governors of the Federal Reserve System, and
Director of National Intelligence.
165 Includes the Deputy Secretary of Defense, Deputy Secretary of
State, Deputy Secretary of State for Management and Resources,
Administrator of Agency for International Development, Administrator
of the National Aeronautics and Space Administration, Deputy Secretary
of Veterans Affairs, Deputy Secretary of Homeland Security,
Undersecretary of Homeland Security for Management, Deputy
Secretary of the Treasury, Deputy Secretary of Transpor-

308

Ocampo vs. Enriquez
(v) Chief of Mission of a Category 4, 5, or 5+ post if the

Department of State classified that post as a Category 4, 5, or 5+
post during the personÊs tenure as Chief of Mission.
(7) Any former prisoner of war who, while a prisoner of war,
served honorably in the active military service, and who died on or
after November 30, 1993.
(b) Derivatively eligible persons. The following individuals are
derivatively eligible persons for purposes of interment who may be
interred if space is available in the gravesite of the primarily
eligible person:
(1) The spouse of a primarily eligible person who is or will be
interred in Arlington National Cemetery. A former spouse of a
primarily eligible person is not eligible for interment in Arlington
National Cemetery under this paragraph.
(2) The spouse of an active duty service member or an eligible
veteran, who was:
_______________
tation, Chairman of Nuclear Regulatory Commission, Chairman of

Council of Economic Advisers, Director of the Office of Science and
Technology, Director of the Central Intelligence Agency, Secretary of the
Air Force, Secretary of the Army, Secretary of the Navy, Administrator of
Federal Aviation Administration, Director of the National Science
Foundation, Deputy Attorney General, Deputy Secretary of Energy,
Deputy Secretary of Agriculture, Director of the Office of Personnel
Management, Administrator of Federal Highway Administration,
Administrator of the Environmental Protection Agency, Undersecretary
of Defense for Acquisition, Technology, and Logistics, Deputy Secretary of
Labor, Deputy Director of the Office of Management and Budget,
Independent Members of Thrift Depositor Protection Oversight Board,
Deputy Secretary of Health and Human Services, Deputy Secretary of
the Interior, Deputy Secretary of Education, Deputy Secretary of
Housing and Urban Development, Deputy Director for Management of
Office of Management and Budget, Director of the Federal Housing

Finance Agency, Deputy Commissioner of Social Security, Social Security

Administration, Administrator of the Community Development Financial
Institutions Fund, Deputy Director of National Drug Control Policy,
Members and Board of Governors of the Federal Reserve System,
Undersecretary of Transportation for Policy, Chief Executive Officer of
Millennium Challenge Corporation, Principal Deputy Director of
National Intelligence, Director of the National Counterterrorism Center,
Director of the National Counter Proliferation Center, Administrator of
the Federal Emergency Management Agency and Federal Transit
Administrator.
309
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Ocampo vs. Enriquez
(i) Lost or buried at sea, temporarily interred overseas due to

action by the Government, or officially determined to be missing in
action;
(ii) Buried in a U.S. military cemetery maintained by the
American Battle Monuments Commission; or
(iii) Interred in Arlington National Cemetery as part of a group
burial (the derivatively eligible spouse may not be buried in the
group burial gravesite).
(3) The parents of a minor child or a permanently dependent adult
child, whose remains were interred in Arlington National Cemetery
based on the eligibility of a parent at the time of the childÊs death,
unless eligibility of the non-service connected parent is lost through
divorce from the primarily eligible parent.
(4) An honorably discharged veteran who does not qualify as a
primarily eligible person, if the veteran will be buried in the same
gravesite as an already interred primarily eligible person who is a
close relative, where the interment meets the following conditions:
(i) The veteran is without minor or unmarried adult dependent
children;
(ii) The veteran will not occupy space reserved for the spouse, a
minor child, or a permanently dependent adult child;
(iii) All other close relatives of the primarily eligible person concur
with the interment of the veteran with the primarily eligible person

by signing a notarized statement;

(iv) The veteranÊs spouse waives any entitlement to interment in
Arlington National Cemetery, where such entitlement might be
based on the veteranÊs interment in Arlington National Cemetery.
The Executive Director may set aside the spouseÊs waiver, provided
space is available in the same gravesite, and all close relatives of
the primarily eligible person concur;
(v) Any cost of moving, recasketing, or revaulting the remains will
be paid from private funds.
There is a separate list of eligible with respect to the

inurnment of cremated remains in the Columbarium,166
interment of cremated re-
_______________
166 The following persons are eligible for inurnment in the Arlington
National Cemetery Columbarium, unless otherwise prohibited as
provided for in §§ 553.19-553.20, provided that the last period of active
duty of the service member or veteran ended with an honorable
discharge.
310

Ocampo vs. Enriquez
_______________
(a) Primarily eligible persons. The following are primarily eligible

persons for purposes of inurnment:
(1) Any person eligible for interment in Arlington National
Cemetery, as provided for in § 553.12(a).
(2) Any veteran who served on active duty other than active duty for
training.
(3) Any member of a Reserve component of the Armed Forces who
dies while:
(i) On active duty for training or performing full-time duty under

title 32, United States Code;

(ii) Performing authorized travel to or from such active duty for
training or full-time duty;
(iii) On authorized inactive-duty training, including training
performed as a member of the Army National Guard of the United States
or the Air National Guard of the United States; or
(iv) Hospitalized or receiving treatment at the expense of the
Government for an injury or disease incurred or contracted while on such
active duty for training or full-time duty, traveling to or from such active
duty for training or full-time duty, or on inactive-duty training.
(4) Any member of the Reserve OfficersÊ Training Corps of the United
States, Army, Navy, or Air Force, whose death occurs while:
(i) Attending an authorized training camp or cruise;
(ii) Performing authorized travel to or from that camp or cruise; or
(iii) Hospitalized or receiving treatment at the expense of the
Government for injury or disease incurred or contracted while attending
such camp or cruise or while traveling to or from such camp or cruise.
(5) Any citizen of the United States who, during any war in which
the United States has been or may hereafter be engaged, served in the
armed forces of any government allied with the United States during
that war, whose last service ended honorably by death or otherwise, and
who was a citizen of the United States at the time of entry into that
service and at the time of death.
(6) Commissioned officers, United States Coast and Geodetic Survey
(now National Oceanic and Atmospheric Administration) who die during
or subsequent to the service specified in the following categories and
whose last service terminated honorably:
(i) Assignment to areas of immediate military hazard.
(ii) Served in the Philippine Islands on December 7, 1941.
(iii) Transferred to the Department of the Army or the Department of
the Navy under certain statutes.
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Ocampo vs. Enriquez
mains in the Unmarked Area,167 and group burial.168 As a

national military cemetery, eligibility standards for

interment, inurnment, or memo-
_______________
(7) Any commissioned officer of the United States Public Health

Service who served on full-time duty on or after July 29, 1945, if the
service falls within the meaning of active duty for training as defined in
38 U.S.C. 101(22) or inactive duty training as defined in 38 U.S.C.
101(23) and whose death resulted from a disease or injury incurred or
aggravated in line of duty. Also, any commissioned officer of the Regular
or Reserve Corps of the Public Health Service who performed active
service prior to July 29, 1945 in time of war; on detail for duty with the
Armed Forces; or while the service was part of the military forces of the
United States pursuant to Executive order of the President.
(8) Any Active Duty Designee as defined in this part.
(b) Derivatively eligible persons. Those connected to an individual
described in paragraph (a) of this section through a relationship
described in
§ 553.12(b). Such individuals may be inurned if space is available in the
primarily eligible personÊs niche. (32 C.F.R. § 553.13)
167 (a) The cremated remains of any person eligible for interment in
Arlington National Cemetery as described in § 553.12 may be interred in
the designated Arlington National Cemetery Unmarked Area.
(b) Cremated remains must be interred in a biodegradable container
or placed directly into the ground without a container. Cremated remains
are not authorized to be scattered at this site or at any location within
Arlington National Cemetery.
(c) There will be no headstone or marker for any person choosing this
method of interment. A permanent register will be maintained by the
Executive Director.
(d) Consistent with the one-gravesite-per-family policy, once a person
is interred in the Unmarked Area, any derivatively eligible persons and
spouses must be interred in this manner. This includes spouses who are
also primarily eligible persons. No additional gravesite, niche, or
memorial marker in a memorial area will be authorized. (32 C.F.R. §
553.14)
168 (a) The Executive Director may authorize a group burial in
Arlington National Cemetery whenever several people, at least one of
whom is an active duty service member, die during a military-related
activity and not all remains can be individually identified.
(b) Before authorizing a group burial that includes both United
States and foreign decedents, the Executive Director will notify the

Department of State and request that the Department of State notify the
appropriate foreign embassy. (32 C.F.R. § 553.15)
312

Ocampo vs. Enriquez
rialization in Arlington are based on honorable military

service.169 Exceptions to the eligibility standards for new
graves, which are rarely granted, are for those persons who
have made significant contributions that directly and
substantially benefited the U.S. military.170
Judging from the foregoing, it is glaring that the U.S.
Army regulations on Arlington and the AFP Regulations G
161-375 on the LNMB, as a general rule, recognize and
reward the military services or military related activities of
the deceased. Compared with the latter, however, the
former is actually less generous in granting the privilege of
interment since only the spouse or parent, under certain
conditions, may be allowed „if space is available in the
gravesite of the primarily eligible person.‰
It is not contrary to the „well-established custom,‰ as the
dissent described it, to argue that the word „bayani‰ in the
LNMB has become a misnomer since while a symbolism of
heroism may attach to the LNMB as a national shrine for
military memorial, the same does not automatically attach
to its feature as a military cemetery and to those who were
already laid or will be laid therein. As stated, the purpose
of the LNMB, both from the legal and historical
perspectives, has neither been to confer to the people
buried there the title of „hero‰ nor to require that only
those interred therein should be treated as a „hero.‰ In fact,
the privilege of internment at the LNMB has been loosen
up through the years. Since 1986, the list of eligible
includes not only those who rendered active military
service or military-related activities but also non-military
personnel who were recognized for their significant
contributions to the Philippine society (such as government

dignitaries, statesmen, national artists, and other deceased

persons whose interment or reinterment has been approved
by the Commander-in-Chief, Congress or Secretary of
National Defense). In 1998, the widows of former
Presidents, Secretaries of National Defense and Chief of
Staff were added to the list. Whether or not the extension
of burial privilege to civilians is unwarranted and should
be restricted in order to be consistent with the
_______________
169 32 C.F.R. § 553.22(a).

170 Id.
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original purpose of the LNMB is immaterial and irrelevant

to the issue at bar since it is indubitable that Marcos had
rendered significant active military service and military-
related activities.
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.
Our laws give high regard to Marcos as a Medal of Valor
awardee and a veteran. R.A. No. 9049171 declares the policy
of the State „to consistently honor its military heroes in
order to strengthen the patriotic spirit and nationalist

consciousness of the military.‰172 For the „supreme self-

sacrifice and distinctive acts of heroism and gallantry,‰173 a
Medal of Valor awardee or his/her
dependents/heirs/beneficiaries are entitled to the following
social services and financial rewards:
1. Tax-exempt lifetime monthly gratuity of Twenty
Thousand Pesos (P20,000.00), which is separate and
distinct from any salary or pension that the awardee
currently receives or will receive from the government
of the Philippines;174
2. Precedence in employment in government agencies or
government-owned or -controlled corporation, if the
job qualifications or requirements are met;
_______________
171 Approved on March 22, 2001 and published in national

newspapers of general circulation on April 9, 2001 as well as in the
Official Gazette on July 9, 2001. It repealed P.D. No. 1687 dated March
24, 1980.
172 Sec. 1 of R.A. No. 9049.
173 Id.
174 In the event of the awardeeÊs death, the gratuity shall accrue in
equal shares and with the right of accretion to the surviving spouse until
she remarries and to the children, legitimate, or adopted or illegitimate,
until they reach the age of eighteen (18) or until they marry, whichever
comes earlier.
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Ocampo vs. Enriquez
3. Priority in the approval of the awardeeÊs housing

application under existing housing programs of the
government;
4. Priority in the acquisition of public lands under the
Public Land Act and preferential right in the lease of
pasture lands and exploitation of natural resources;

5. Privilege of obtaining loans in an aggregate amount

not exceeding Five Hundred Thousand Pesos
(P500,000.00) from government-owned or -controlled
financial institutions without having to put up any
collateral or constitute any pledge or mortgage to
secure the payment of the loan;
6. Twenty percent (20%) discount from all
establishments relative to utilization of
transportation services, hotels and similar lodging
establishments, restaurants, recreation and sport
centers and purchase of medicine anywhere in the
country;
7. Twenty percent (20%) discount on admission fees
charged by theaters, cinema houses and concert halls,
circuses, carnivals and other similar places of culture,
leisure and amusement;
8. Free medical and dental services and consultation in
hospital and clinics anywhere in the country;
9. Exemption from the payment of tuition and
matriculation fees in public or private schools,
universities, colleges and other educational
institutions in any pre-school, baccalaureate or post
graduate courses such as or including course leading
to the degree of Doctor of Medicine (MD), Bachelor of
Laws (LLB), and Bachelor of Science in Nursing
(BSN) or allied and similar courses; and
10. If interested and qualified, a quota is given to join
the cadet corps of the Philippine Military Academy or
otherwise priority for direct commission, call to active
duty (CAD) and/or enlistment in regular force of the
AFP.
On the other hand, in recognizing their patriotic services

in times of war and peace for the cause of freedom and
democracy; for the attainment of national unity,
independence, and socioeconomic advancement; and for the
maintenance of peace and order,175 R.A. No. 6948, as
_______________
175 Sec. 1 of R.A. No. 6948.

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amended,176 grants our veterans177 and their dependents or

survivors with pension (old age, disability, total
administrative disability, and death) and non-pension
(burial, education, hospitalization, and medical care and
treatment) benefits as well as provisions from the local
governments. Under the law, the benefits may be withheld
if the Commission on Human Rights certifies to the AFP
General Headquarters that the veteran has been found
guilty by final judgment of a gross human rights
violation while in the service, but this factor shall not be
considered taken against his next of kin.178
Disqualification under the AFP Regulations

2.
Aside from being eligible for burial at the LNMB,

Marcos possessed none of the disqualifications stated in
AFP Regulations G 161-375. He was neither convicted by
final judgment of the offense involving moral turpitude nor
dishonorably separated/reverted/discharged from active
military service.
Petitioners, however, protest that a narrow
interpretation of the AFP regulations disregards historical
context and the rule on statutory construction. They urge
the Court to construe statutes not literally but according to
their spirit and reason.
It is argued that Marcos committed offenses involving
moral turpitude for his gross human rights violations,
massive graft and corruption,
_______________
176 Amended by R.A. Nos. 7696, 9396, and 9499.

177 A veteran refers to „any person who: (1) rendered military service
in the land, sea or air forces of the Philippines during the revolution
against Spain, the Philippine-American War, and World War II, including

Filipino citizens who served with the Allied Forces in Philippine

territory; (2) was a member of the Philippine Expeditionary Forces sent
to the Korean War and the Philippine Civic Action Group sent to the
Vietnam War; (3) rendered military service in the Armed Forces of the
Philippines (AFP) and has been honorably discharged or retired after at
least twenty (20) years total cumulative active service or sooner
separated while in the active service in the AFP due to death or
disability arising from a wound or injury received or sickness or disease
incurred in line of duty.‰ (Sec. 2[a] of R.A. No. 6948, as amended by R.A.
No. 9396).
178 Sec. 25 of R.A. No. 6948.
316

Ocampo vs. Enriquez
and dubious military records, as found by foreign and local

courts as well as administrative agencies. By going into
exile, he deliberately evaded liability for his actions. And
by allowing death to overtake him, he inevitably escaped
the prospect of facing accountability for his crimes. They
also contend that his removal in the 1986 popular uprising
is a clear sign of his discharge from the AFP. The People
Power Revolution was the direct exercise of the FilipinosÊ
power to overthrow an illegitimate and oppressive regime.
As a sovereign act, it necessarily includes the power to
adjudge him as dishonorably discharged from the AFP.
Furthermore, according to petitioners, to limit the
application of the disqualifying provisions of AFP
Regulations G 161-375 only to soldiers would be unfair
(since, unlike Presidents, soldiers have an additional cause
for disqualification) and lead to absurd results (because
soldiers who were dishonorably discharged would be
disqualified for acts that are less atrocious than that
committed by Marcos). Also, the AFP regulations would
place Marcos in the same class as the other Philippine
Presidents when in fact he is a class of his own, sui generis.
The other Presidents were never removed by People Power

Revolution and were never subject of laws declaring them

to have committed human rights violations. Thus, the
intended burial would be an act of similarly treating
persons who are differently situated.
Despite all these ostensibly persuasive arguments, the
fact remains that Marcos was not convicted by final
judgment of any offense involving moral turpitude. No less
than the 1987 Constitution mandates that a person shall
not be held to answer for a criminal offense without due
process of law and that, „[i]n all criminal prosecutions, the
accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and
public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf.‰179 Even the
U.N. principles on reparation and to
_______________
179 Section 14, Article III.
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Ocampo vs. Enriquez
combat impunity cited by petitioners unequivocally

guarantee the rights of the accused, providing that:
Rights of others
XIII.
27. Nothing in this document is to be construed as derogating

from internationally or nationally protected rights of others, in
particular the right of an accused person to benefit from applicable
standards of due process.
xxx

PRINCIPLE 9.
GUARANTEES FOR PERSONS
IMPLICATED
Before a commission identifies perpetrators in its report, the

individuals concerned shall be entitled to the following guarantees:
(a) The commission must try to corroborate information
implicating individuals before they are named publicly;
(b) The individuals implicated shall be afforded an opportunity to
provide a statement setting forth their version of the facts either at
a hearing convened by the commission while conducting its
investigation or through submission of a document equivalent to a
right of reply for inclusion in the commissionÊs file.
To note, in the U.S., a person found to have committed a

Federal or State capital crime (i.e., a crime which a
sentence of imprisonment for life or death penalty may be
imposed) but who has not been convicted by reason of not
being available for trial due to death or flight to avoid
prosecution, may be ineligible for interment, inurnment, or
memorialization in an Army national military cemetery.
Nevertheless, such ineligibility must still observe the
procedures specified in § 553.21.180
_______________
180 (a) Preliminary inquiry. If the Executive Director has reason to

believe that a decedent may have committed a Federal capital crime or a
State capital crime but has not been convicted of such crime by reason of
such person not being available for trial due to death or flight to avoid
prosecution, the Executive Director shall submit the issue to the Army
General Counsel. The Army General Counsel or his or her designee shall
initiate a preliminary inquiry seeking information from Federal, State,
or local law enforcement officials, or other sources of potentially relevant
information.
318

Ocampo vs. Enriquez
_______________
(b) Decision after preliminary inquiry. If, after conducting the

preliminary inquiry described in paragraph (a) of this section, the Army
General Counsel or designee determines that credible evidence exists
suggesting the decedent may have committed a Federal capital crime or
State capital crime, then further proceedings under this section are
warranted to determine whether the decedent committed such crime.
Consequently the Army General Counsel or his or her designee shall
present the personal representative with a written notification of such
preliminary determination and a dated, written notice of the personal
representativeÊs procedural options.
(c) Notice and procedural options. The notice of procedural options
shall indicate that, within fifteen days, the personal representative may:
(1) Request a hearing;
(2) Withdraw the request for interment, inurnment, or
memorialization; or
(3) Do nothing, in which case the request for interment, inurnment,
or memorialization will be considered to have been withdrawn.
(d) Time computation. The fifteen-day time period begins on the
calendar day immediately following the earlier of the day the notice of
procedural options is delivered in person to the personal representative
or is sent by U.S. registered mail or, if available, by electronic means to
the personal representative. It ends at midnight on the fifteenth day. The
period includes weekends and holidays.
(e) Hearing. The purpose of the hearing is to allow the personal
representative to present additional information regarding whether the
decedent committed a Federal capital crime or a State capital crime. In
lieu of making a personal appearance at the hearing, the personal
representative may submit relevant documents for consideration.
(1) If a hearing is requested, the Army General Counsel or his or her
designee shall conduct the hearing.
(2) The hearing shall be conducted in an informal manner.
(3) The rules of evidence shall not apply.
(4) The personal representative and witnesses may appear, at no
expense to the Government, and shall, in the discretion of the Army
General Counsel or his or her designee, testify under oath. Oaths must
be administered by a person who possesses the legal authority to
administer oaths.
(5) The Army General Counsel or designee shall consider any and all

relevant information obtained.

(6) The hearing shall be appropriately recorded. Upon request, a
copy of the record shall be provided to the personal representative.
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The various cases cited by petitioners, which were

decided with finality by courts here and abroad, have no
bearing in this case since they are merely civil in nature;
hence, cannot and do not establish moral turpitude.
Also, the equal protection clause is not violated.
Generally, there is no property right to safeguard because
even if one is eligible to be buried at the LNMB, such fact
would only give him or her the privilege to be interred
therein. Unless there is a favorable recommendation from
the Commander-in-Chief, the Congress or the Secretary of
National Defense, no right can be said to have ripen. Until
then, such inchoate right is not legally demandable and
enforceable.
Assuming that there is a property right to protect, the
requisites of equal protection clause are not met.181 In this
case, there is a real and
_______________
(f) Final determination. After considering the opinion of the Army

General Counsel or his or her designee, and any additional information
submitted by the personal representative, the Secretary of the Army or
his or her designee shall determine the decedentÊs eligibility for
interment, inurnment, or memorialization. This determination is final
and not appealable.
(1) The determination shall be based on evidence that supports or
undermines a conclusion that the decedentÊs actions satisfied the
elements of the crime as established by the law of the jurisdiction in
which the decedent would have been prosecuted.
(2) If an affirmative defense is offered by the decedentÊs personal

representative, a determination as to whether the defense was met shall

be made according to the law of the jurisdiction in which the decedent
would have been prosecuted.
(3) Mitigating evidence shall not be considered.
(4) The opinion of the local, State, or Federal prosecutor as to
whether he or she would have brought charges against the decedent had
the decedent been available is relevant but not binding and shall be
given no more weight than other facts presented.
(g) Notice of decision. The Executive Director shall provide written
notification of the SecretaryÊs decision to the personal representative.
(See 32 C.F.R. § 553.21; Effective: October 26, 2016)
181 The requirements for a valid and reasonable classification are: (1)
it must rest on substantial distinctions; (2) it must be germane to the
purpose of
320

Ocampo vs. Enriquez
substantial distinction between a military personnel and a

former President. The conditions of dishonorable discharge
under the Articles of War182 attach only to the members of
the military. There is also no substantial distinction
between Marcos and the three Philippine Presidents buried
at the LNMB (Presidents Quirino, Garcia, and Macapagal).
All of them were not convicted of a crime involving moral
turpitude. In addition, the classification between a military
personnel and a former President is germane to the
purposes of Proclamation No. 208 and P.D. No. 1076. While
the LNMB is a national shrine for military memorials, it
is also an active military cemetery that recognizes the
status or position held by the persons interred therein.
Likewise, Marcos was honorably discharged from
military service. PVAO expressly recognized him as a
retired veteran pursuant to R.A. No. 6948, as amended.
Petitioners have not shown that he was dishonorably
discharged from military service under AFP Circular 17,
Series of 1987 (Administrative Discharge Prior to

Expiration of Term of Enlistment) for violating Articles 94,

95 and 97 of the Articles of War.183 The
_______________
the law; (3) it must not be limited to existing conditions only; and (4) it
must apply equally to all members of the same class. (Ferrer, Jr. v.
Bautista, G.R. No. 210551, June 30, 2015, 760 SCRA 652, 709-710)
182 Commonwealth Act No. 408 dated September 14, 1938, as
amended.
183 ARTICLE 94. Various Crimes.·Any person subjected to
military law who commits any crime, breach of law or violation of
municipal ordinance, which is recognized as an offense of a penal nature
and is punishable under the penal laws of the Philippines or under
municipal ordinances, on a Philippine Army reservation, shall be
punished as a court-martial may direct; Provided, That in time of peace,
officers and enlisted men of the Philippine Constabulary shall not be
triable by courts-martial for any felony, crime, breach of law or violation
of municipal ordinances committed under this Article.
ARTICLE 95. Frauds Against the Government Affecting Matters and
Equipments.·Any person subject to military law who, having charge,
possession, custody, or control of any money or other property of the
Commonwealth of the Philippines, furnished or intended for the military
service thereof, knowingly delivers, or causes to be delivered, to any
person having authority to receive the same, any amount thereof less
than that for which he receives a certificate or receipt; or
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Ocampo vs. Enriquez
_______________
Who, being authorized to make or deliver any paper certifying the

receipt of any property of the Commonwealth of the Philippines
furnished or intended for the military service thereof, makes or delivers
to any person such writing, without having full knowledge of the truth of
the statements therein contained and with intent to defraud the

Philippines; or
Who steals, embezzles, knowingly and willfully misappropriates,
applies to his own use or benefit, or wrongfully or knowingly sells or
disposes of any ordnance, arms, equipments, ammunition, clothing,
subsistence stores, money, or other property of the Commonwealth of the
Philippines furnished or intended for the military service thereof; or
Who knowingly purchases or receives in pledge for any obligation or
indebtedness from any soldier, officer, or other person who is a part of or
employed in said forces or service, any ordnance, arms, equipment,
ammunition, clothing subsistence stores, or other property of the
Commonwealth of the Philippines, such soldier, officer, or other person
not having lawful right to sell or pledge the same;
Shall, on conviction thereof, be punished by fine or imprisonment, or
by such other punishment as a court-martial may adjudge, or by any or
all of said penalties. And if any person, being guilty of any of the offenses
aforesaid while in the military service of the Philippines, received his
discharge or is dismissed from the service, he shall continue to be liable
to be arrested and held for trial and sentence by a court-martial in the
same manner and to the same extent as if he had not received such
discharge nor been dismissed. And if any officer, being guilty, while in
the military service of the Philippines of embezzlement of ration savings,
post exchange, company, or other like funds, or of embezzlement of
money or other property entrusted to his charge by an enlisted man or
men, receives his discharge, or is dismissed, or is dropped from the rolls,
he shall continue to be liable to be arrested and held for trial and
sentence by a court-martial in the same manner and to the same extent
as if he had not been so discharged, dismissed, or dropped from the rolls.
ARTICLE 97. General Article.·Though not mentioned in these
articles, all disorders and neglects to the prejudice of good order and
military discipline and all conduct of a nature to bring discredit upon the
military service shall be taken cognizance of by a general or special or
summary court-martial according to the nature and degree of the offense,
and punished at the discretion of such court. (Commonwealth Act No.
408 dated September 14, 1938, as amended by P.D. 1166 dated June 24,
1977)
Article 94 is under the jurisdiction of civil courts while Articles 95 to
97, as service-connected crimes or offenses, are under the jurisdiction of
the court-martial (See R.A. No. 7055, approved on June 20, 1991)
322


Ocampo vs. Enriquez
NHCP study184 is incomplete with respect to his entire

military career as it failed to cite and include the official
records of the AFP.
With respect to the phrase „[p]ersonnel who were
dishonorably separated/reverted/discharged from the
service,‰ the same should be viewed in light of the
definition provided by AFP Regulations G 161-375 to the
term „active service‰ which is „[s]ervice rendered by a
military person as a Commissioned Officer, enlisted
man/woman, probationary officer, trainee or draftee in the
Armed Forces of the Philippines and service rendered by
him/her as a civilian official or employee in the Philippine
Government prior to the date of his/her separation or
retirement from the Armed Forces of the Philippines, for
which military and/or civilian service he/she shall have
received pay from the Philippine Government, and/or such
others as may be hereafter be prescribed by law as active
service (PD 1638, as amended).‰185 To my mind, the word
„service‰ should be construed as that rendered by a
military person in the AFP, including civil service, from the
time of his/her commission, enlistment, probation, training
or drafting, up to the date of his/her separation or
retirement from the AFP. Civil service after honorable
separation and retirement from the AFP is outside the
context of „service‰ under AFP Regulations G 161-375.
Hence, it cannot be conveniently claimed that MarcosÊ
ouster from the presidency during the EDSA Revolution is
tantamount to his dishonor-
_______________
184 On July 12, 2016, the NHCP published its study, entitled „Why
Ferdinand E. Marcos Should Not Be Buried at the Libingan Ng Mga
Bayani,‰ concluding that MarcosÊ military record is fraught with myths,
factual inconsistencies, and lies. The NHCP study demonstrated that: (1)
Marcos lied about receiving U.S. Medals (Distinguished Service Cross,
Silver Star, and Order of Purple Heart); (2) his guerilla unit, the Ang
Mga Maharlika, was never officially recognized and neither was his
leadership of it; (3) U.S. officials did not recognize MarcosÊ rank

promotion from Major in 1944 to Lt. Col. by 1947; and (4) some of MarcosÊ
actions as a soldier were officially called into question by the upper
echelons of the U.S. Military, such as his command of the Alias
Intelligence Unit (described as „usurpation‰), his commissioning of
officers (without authority), his abandonment of USAFIP-NL presumably
to build in airfield for Gen. Roxas, his collection of money for the airfield
(described as „illegal‰), and his listing of his name on the roster of
different units (called a „malicious criminal act‰).
185 Emphasis supplied.
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Ocampo vs. Enriquez
able 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 contem-
plated by AFP Regulations G 161-375. 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 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. 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 stars · clear
constitutional and legal rules · not by the uncertain,
ambiguous and confusing messages from the actions of the
people.
Conclusion
In sum, there is no clear constitutional or legal basis to

hold that there was a 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
PresidentÊs discretion is not totally unfettered. „Discretion
is not a freespirited stallion that runs and roams wherever
it pleases but is reined in to keep it from straying. In its
classic formulation, Âdiscretion is not unconfined and
vagrantÊ but Âcanalized within banks that keep it
324

Ocampo vs. Enriquez
from overflowing.Ê‰186 At bar, President Duterte, through

the public respondents, acted within the bounds of the 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 of his rightful place at
the LNMB. For even the Framers of our Constitution
intend that full respect for human rights is available at any
stage of a personÊs development, from the time he or she
becomes a person to the time he or she leaves this earth.187
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.
WHEREFORE, PREMISES CONSIDERED, the
petitions are DISMISSED. Necessarily, the Status Quo
Ante Order is hereby LIFTED.
Sereno, CJ., See Dissenting Opinion.

Carpio, J., See Dissenting Opinion.
Velasco, Jr.,*** J., I concur in the ponencia and also in
the Opinion of Justice Mendoza.
Leonardo-De Castro, J., I concur in the ponencia and
Separate Opinion of Justice Mendoza.
Brion, J., With Separate Concurring Opinion.
Bersamin, J., See Separate Opinion.
Del Castillo, J., I join the Separate Opinion of J.
Mendoza.
_______________
186 National Artist for Literature Virgilio Almario v. The Executive

Secretary, supra note 46 at p. 163; p. 309.
187 Records (Vol. IV), September 19, 1986, pp. 829-831; See also
Bernas, Joaquin G., S.J., The Intent of the 1986 Constitution Writers,
1995, pp. 116-117.
*** On Official Leave.
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Ocampo vs. Enriquez
Perez, J., See Separate Opinion.

Mendoza, J., See Separate Opinion.
Reyes, J., Inhibited/No part.
Perlas-Bernabe, J., I join the Separate Opinion of J.
Mendoza.
Leonen, J., I dissent. See Separate Opinion.

Jardeleza, J., I join dissent of J. Caguioa.

Caguioa, J., I dissent. See Separate Opinion.
DISSENTING OPINION
SERENO, CJ.:
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 PresidentÊs
decision to have him buried at the Libingan ng mga Bayani
(LNMB) as one made in grave abuse of discretion.
Nothing can be more wrong, and no view more
diminishing of the JudiciaryÊs 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 LNMB 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 pro-
326

Ocampo vs. Enriquez

nouncements, 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 CourtÊs 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 todayÊs 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
327
VOL. 807, NOVEMBER 8, 2016 327

Ocampo vs. Enriquez
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
_______________
1 Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January

2016, 779 SCRA 241; Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc., 460 Phil. 830; 415
SCRA 44 (2003); Estrada v. Desierto, 406 Phil. 1; 353 SCRA 452 (2001);
Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792;
Bondoc v. Pineda, 278 Phil. 784; 201 SCRA 792 (1991); Marcos v.
Manglapus, 258 Phil. 479; 177 SCRA 668 (1989).
2 Arroyo v. De Venecia, 343 Phil. 42; 277 SCRA 268 (1997).
3 David v. Macapagal-Arroyo, 522 Phil. 705; 489 SCRA 160 (2006);
Integrated Bar of the Philippines v. Zamora, 392 Phil. 618; 338 SCRA 81
(2000); Llamas v. Orbos, 279 Phil. 920; 202 SCRA 844 (1991).
328

Ocampo vs. Enriquez
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 nationsÊ enduring values,
which this Court must zealously protect.
Countless times, this Court has said in so many words

that the 1987 Constitution embodies the FilipinosÊ
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

_______________
4 1987 CONSTITUTION, Preamble. Also see Concurring Opinion of Chief

Justice Sereno in Poe-Llamanzares v. Commission on Elections, G.R. Nos.
221697 & 221698-700, 8 March 2016, 786 SCRA 1.
5 Resident Marine Mammals of the Protected Seascape Tañon Strait v.
Reyes, G.R. No. 180771, 21 April 2015, 756 SCRA 513, 541; West Tower
Condominium Corporation v. First Philippine Industrial Corporation,
G.R. No. 194239, 16 June 2015, 758 SCRA 292; Metropolitan Manila
Development Authority v. Concerned Residents of Manila Bay, 595 Phil.
305; 574 SCRA 661 (2008); Oposa v. Factoran, Jr., supra note 1.
6 Imbong v. Ochoa, Jr., G.R. Nos. 204819, 204934, 204957, 204988,
205003, 205043, 205138, 205478, 205491, 205720, 206355, 207111,
207172, 207563, 8 April 2014, 721 SCRA 146; Garcia v. Drilon, 712 Phil.
44; 699 SCRA 352 (2013); Philippine Telegraph and Telephone Company
v. NLRC, 338 Phil. 1093; 272 SCRA 596 (1997).
7 Poe-Llamanzares v. Commission on Elections, supra; Dela Cruz v.
Gracia, 612 Phil. 167; 594 SCRA 649 (2009); People v. Abadies, 433 Phil.
814; 384 SCRA 442 (2002).
8 Seagull Maritime Corp. v. Dee, 548 Phil. 660; 520 SCRA 109 (2007);
Lopez v. Metropolitan Waterworks and Sewerage System, 501 Phil. 115;
462 SCRA 428 (2005).
9 La Bugal-BÊlaan Tribal Association, Inc. v. Ramos, 486 Phil. 754;
445 SCRA 1 (2004).
329
VOL. 807, NOVEMBER 8, 2016 329

Ocampo vs. Enriquez
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 JudgesÊ 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.
_______________

205728, 21 January 2015, 747 SCRA 1; Land Bank of the Philippines v.
Heirs of Angel T. Domingo, G.R. No. 168533, 4 February 2008, 543 SCRA
627; Guazon v. De Villa, 260 Phil. 673; 181 SCRA 623 (1990).
11 See Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-
SC, 13 April 2010; The Rule on the Writ of Amparo, A.M. No. 07-9-12-SC,
25 September 2007; Rule on the Writ of Habeas Data, A.M. No. 08-1-16-
SC, 22 January 2008.
330

Ocampo vs. Enriquez

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 Judi-
_______________
12 See, among others, Padilla v. Padilla, 74 Phil. 377 (1943); Republic

v. De los Angeles, 148-B Phil. 902; 41 SCRA 422 (1971); Floresca v. Philex
Mining Corporation, 220 Phil. 533; 136 SCRA 141 (1985); Salvacion v.
Central Bank of the Philippines, 343 Phil. 539; 278 SCRA 27 (1997);
Concurring Opinion of Chief Justice Maria Lourdes P.A. Sereno in
Corpuz v. People, 734 Phil. 353; 724 SCRA 1 (2014), citing the Report of

the Code Commission, p. 78; Social Weather Stations, Inc. v. Commission

on Elections, G.R. No. 208062, 7 April 2015, 755 SCRA 124; Carpio-
Morales v. Court of Appeals (Sixth Division), G.R. Nos. 217126-27, 10
November 2015, 774 SCRA 431; Poe-Llamanzares v. Commission on
Elections, supra note 4.
331
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Ocampo vs. Enriquez
ciary 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 peopleÊs 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.
332

Ocampo vs. Enriquez
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.
Former Chief Justice Reynato Puno has said:
The sole purpose of government is to promote, protect and preserve

these [human] rights. And when government 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 tenureÊs 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
_______________
13 Concurring Opinion of Chief Justice Puno in Republic v.

Sandiganbayan, 454 Phil. 504; 407 SCRA 10 (2003).
333
VOL. 807, NOVEMBER 8, 2016 333

Ocampo vs. Enriquez
that is sought to be protected by the Constitution acts as a

prohibition against the GovernmentÊs 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.

Summary of the arguments

on the substantive issues
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 latterÊs 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 LNMB. 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 LNMB.
_______________
14 Consolidated Comment dated 22 August 2016, p. 62; Oral

Arguments Transcript of Stenographic Notes [hereinafter TSN], 7
September 2016, p. 243; Memorandum dated 27 September 2016, pp.
134-136.
334

Ocampo vs. Enriquez
(1) will derogate from the stateÊs duty to protect and

promote human rights under the Constitution,
domestic statutes, and international law;
(2) will violate Presidential Decree No. 105, and Republic
Act Nos. 10066, 10086 and 289;
(3) is an unconstitutional devotion of public property to a
private purpose;
(4) is an illegal use of public funds;
(5) cannot be sourced from the residual powers of the
President or his powers to reserve lands for public
purposes;
(6) cannot find legal mooring in AFP Regulation G 161-
375;
(7) is in violation of the clause on faithful execution of
the laws.
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.
Discussion
I.
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.
335
VOL. 807, NOVEMBER 8, 2016 335

Ocampo vs. Enriquez
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 government.17
_______________
15 Integrated Bar of the Philippines v. Zamora, supra note 3.

16 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., supra note 1.
17 Oposa v. Factoran, Jr., supra note 1.
336

Ocampo vs. Enriquez
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 first section starts with a sentence copied from former

Constitutions. It says:
The judicial power shall be vested in one Supreme Court and

in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it

first and explain.

Judicial power includes the duty of 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 or instrumentality of the
government.
Fellow Members of this Commission, this is actually a product of

our experience during martial law. As a matter of fact, it has
some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions
and got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law
failed because the government set up the de-
_______________
18 Id.
337
VOL. 807, NOVEMBER 8, 2016 337

Ocampo vs. Enriquez
fense of political question. And the Supreme Court said: „Well, since
it is political, we have no authority to pass upon it.‰ The Committee
on the Judiciary feels that this was not a proper solution of the
questions involved. It 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. . . .
xxxx
Briefly stated, courts of justice determine the limits of power of the

agencies and offices of the government as well as those of its

officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or
so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this
nature.
This is the background of paragraph 2 of Section 1, which

means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters
constitute a political question.19 (Emphasis supplied)
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-à-vis the political
question doctrine under the 1987 Constitution. In that
case, the Court explained:
The present Constitution limits resort to the political question

doctrine and broadens the scope of judicial inquiry into areas which
the Court, under previous constitutions, would have normally left to
the political departments to decide.
xxxx
_______________
19 I Records of the 1986 Constitutional Commission, pp. 434-436

(1986).
20 Estrada v. Desierto, supra note 1.
21 Marcos v. Manglapus, supra note 1.
338

Ocampo vs. Enriquez

x x x When political questions are involved, the Constitution limits

the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.22
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
any branch or instrumentality of government. Heretofore, the
judiciary has focused on the „thou shalt notÊs‰ 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
_______________
22 Id., at pp. 506-507; p. 696.


24 Id., at pp. 42-43; p. 491.
Manggagawang Pilipino, Inc., supra note 1 at p. 910; p. 149.
339
VOL. 807, NOVEMBER 8, 2016 339

Ocampo vs. Enriquez
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 LNMB,
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 judi-

cial power, the Court has decided is-
sues that were traditionally consid-
ered 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 executiveÊs determination
by the executive of sovereign or diplomatic immunity,28 its
espousal of the claims of its nationals against a foreign gov-
_______________
26 Araullo v. Aquino III, G.R. Nos. 209287, 209155, 209164, 209260,

209442, 209517, 209569, 1 July 2014, 728 SCRA 1, 74.
27 Supra note 19.
28 Department of Foreign Affairs v. NLRC, 330 Phil. 573; 262 SCRA
39 (1996); Collado v. International Rice Research Institute, 314 Phil. 46;
244 SCRA 210 (1995); Lasco v. United Nations Revolving Fund for
Natural Resources Ex-
340

Ocampo vs. Enriquez
ernment,29 and the electorateÊs 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 17 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.
Acts of the President
The Court in Marcos v. Manglapus31 ascertained the

validity of the PresidentÊs 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 PresidentÊs power to call
out the armed forces to prevent or suppress
_______________
ploration, 311 Phil. 795; 241 SCRA 681 (1995); The Holy See v. Rosario,
Jr., G.R. No. 101949, 1 December 1994, 238 SCRA 524; International
Catholic Migration Commission v. Calleja, 268 Phil. 134; 190 SCRA 130
(1990).
29 Vinuya v. Romulo, 633 Phil. 538; 619 SCRA 533 (2010).
30 Evardone v. Commission on Elections, G.R. Nos. 94010, 95063, 2
December 1991, 204 SCRA 464.
32 Gonzales v. Macaraig, Jr., 269 Phil. 472; 191 SCRA 452 (1990).
33 Llamas v. Orbos, 279 Phil. 920; 202 SCRA 844 (1991).
341
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Ocampo vs. Enriquez
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 ArroyoÊs 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 PresidentÊs „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 CourtÊs 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
any branch or instrumentality of the government.‰37 (Citations
omitted)
In Biraogo v. Philippine Truth Commission of 2010,38

even the PresidentÊs 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.
_______________

36 David v. Macapagal-Arroyo, supra note 3.
37 Id., at p. 766; pp. 227-228.
38 Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374; 637
SCRA 78 (2010).

342

Ocampo vs. Enriquez
Acts of the Legislature
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 (e) the validity of an investigation
conducted in aid of legislation by certain Senate
committees;44 and (f) the decision of the House of
Representatives Committee on Justice to take cognizance
of two impeachment complaints.45
_______________
39 Daza v. Singson, 259 Phil. 980; 180 SCRA 496 (1989).

40 Bondoc v. Pineda, supra note 1.
41 Bengzon, Jr. v. Senate Blue Ribbon Committee, G.R. No. 89914, 20
November 1991, 203 SCRA 767, 769.

42 In Oposa v. Factoran, Jr., supra note 1, the Court declared that

„the political question doctrine is 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.‰
Manggagawang Pilipino, Inc., supra note 1.
44 Neri v. Senate Committee on Accountability of Public Officers and
Investigations, 573 Phil. 554; 564 SCRA 152 (2008).
45 Gutierrez v. House of Representatives Committee on Justice, 658
Phil. 322; 643 SCRA 198 (2011). We explained therein that „the Court is
not asserting
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Ocampo vs. Enriquez
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 government.‰48
Latest Jurisprudence
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 CourtÊs 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
noncandidate petitioners to post the subject tarpaulin in
their private property was an exercise of their right to free
expression. In rejecting the COMELECÊs political question
defense, it held that
_______________
its ascendancy over the Legislature in this instance, but simply

upholding the supremacy of the Constitution as the repository of the
sovereign will.‰
46 Tañada v. Angara, 338 Phil. 546, 575; 272 SCRA 18, 49 (1997).
47 Id.
48 Id.
49 Belgica v. Ochoa, Jr., 721 Phil. 416; 710 SCRA 1 (2013).
50 Araullo v. Aquino III, supra note 26.
51 The Diocese of Bacolod v. Commission on Elections, supra note 10.
344

Ocampo vs. Enriquez
„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 JBCÊs 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
_______________
52 Id., at p. 53.
53 Villanueva v. Judicial and Bar Council, G.R. No. 211833, 7 April
2015, 755 SCRA 182.
54 Id., at p. 197.
55 779 SCRA 241, supra note 1.
56 Id.

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Ocampo vs. Enriquez
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 Âto 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 GovernmentÊ is
restricted only by the definition and confines of the term
Âgrave abuse of discretion.Ê‰
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.
_______________
57 See Pimentel, Jr. v. Senate Committee of the Whole, 660 Phil. 202;
644 SCRA 741 (2011); Dela Paz v. Senate Committee on Foreign
Relations, 598 Phil. 981; 579 SCRA 521 (2009); Garcia v. Executive
Secretary, 602 Phil. 64; 583 SCRA 119 (2009); Sanlakas v. Executive

Secretary, 466 Phil. 482; 421 SCRA 656 (2004); Eastern Assurance &
Surety Corporation (EASCO) v. Land Transportation Franchising and
Regulatory Board (LTFRB), 459 Phil. 395; 413 SCRA 75 (2003); Lim v.
Executive Secretary, 430 Phil. 555; 380 SCRA 739 (2002); Bagatsing v.
Committee on Privatization, 316 Phil. 404; 246 SCRA 334 (1995); Co v.
Electoral Tribunal of the House of Representatives, 216 Phil. 758; 199
SCRA 692 (1991); Garcia v. Executive Secretary, 281 Phil. 572; 204 SCRA
516 (1991).
58 Santiago v. Guingona, Jr., 359 Phil. 276; 298 SCRA 756 (1998).
346

Ocampo vs. Enriquez
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:
The genesis of the foregoing cases can be traced to the events

prior to the historic May 2010 elections, when then Senator Benigno
Simeon Aquino III declared his staunch condemnation of graft and
corruption with his slogan, „Kung walang corrupt, walang
mahirap.‰ The Filipino people, convinced of his sincerity and of his
ability to carry out this noble objective, catapulted the good senator
to the presidency.
To transform his campaign slogan into reality, President Aquino
found a need for a special body to investigate reported cases of graft
and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July
30, 2010, signed Executive Order No. 1 establishing the Philippine
Truth Commission of 2010 (Truth Commission).60
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 LNMB is consistent with the
Constitution and the laws.
_______________
59 Supra note 38.

60 Id., at p. 428; pp. 138-139.
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II.
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:
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.‰
The PresidentÊs power must be exercised in accordance with

existing laws. Section 17, Article VII of the Constitution prescribes
faithful execution of the laws by the President:
Sec. 17. The President shall have control of all the

executive departments, bureaus and offices. He shall ensure
that the laws be faithfully executed.
The PresidentÊs discretion in the conferment of the Order of

National Artists should be exercised in accordance with the duty to
faithfully execute the relevant laws. The faithful execution
clause is best construed as an obligation imposed on the
President, not a separate grant of power. It simply
underscores the rule of law and, corollarily, the cardinal
principle that the President is not above the laws but is
obliged to obey and execute them. This is precisely why the law
provides that „[a]dministrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the
laws or the Constitution.‰62 (Citations omitted and emphasis
supplied)
_______________
61 1987 CONSTITUTION, Article VII, Section 17.

62 714 Phil. 127, 163-164; 701 SCRA 269, 309 (2013).
348

Ocampo vs. Enriquez
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 LNMB
contravenes the constitution, laws,
_______________
63 See Concurring Opinion of Associate Justice Arturo Brion, Biraogo

v. Philippine Truth Commission of 2010, supra note 38.
64 135 U.S. 1, 82-84.
65 Id., at p. 64.
66 In Carpio-Morales v. Court of Appeals (Sixth Division), supra note
12, the Court defined grave abuse of discretion in this manner:
It is well-settled that an act of a court or tribunal can only be considered as

with grave abuse of discretion when such act is done in a capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility. It has also been held
that „grave abuse of discretion arises when a lower court or tribunal patently
violates the Constitution, the law or existing jurisprudence.‰ [citations omitted]
67 Supra note 38.
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Ocampo vs. Enriquez
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 PresidentÊs residual powers. Such act is
tainted with grave abuse of discretion.
A. Statutes and jurisprudence estab-

lish a clear policy to condemn the
acts of Marcos and what he repre-
sents, 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,

_______________
68 234 Phil. 267; 150 SCRA 259 (1987).

69 Id., at pp. 272-273; pp. 265-266.
350

Ocampo vs. Enriquez
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:
Third, the assumption that there is, in all cases, a universal plain
language is erroneous. In reality, universality and uniformity of
meaning is a rarity. A contrary belief wrongly assumes that
language is static.
The more appropriate and more effective approach is, thus, holistic
rather than parochial: to consider context and the interplay of the
historical, the contemporary, and even the envisioned. Judicial
interpretation entails the convergence of social realities and social
ideals. The latter are meant to be effected by the legal apparatus,
chief of which is the bedrock of the prevailing legal order: the
Constitution. Indeed, the word in the vernacular that describes the
Constitution · saligan · demonstrates this imperative of
constitutional primacy.
Thus, we refuse to read Section 5.2(a) of the Fair Election Act in

isolation. Here, we consider not an abstruse provision but a
stipulation that is part of the whole, i.e., the statute of which it is a
part, that is aimed at realizing the ideal of fair elections. We
consider not a cloistered provision but a norm that should have a
present authoritative effect to achieve the ideals of those who
currently read, depend on, and demand fealty from the
Constitution.71

In this case, we are being asked to decide whether the

President may validly order the burial of Former President
Marcos in the LNMB. 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 PresidentÊs 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
_______________
70 G.R. No. 208062, 7 April 2015, 755 SCRA 124.

71 Id., at p. 167.
351
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Ocampo vs. Enriquez
President Marcos and his family. For that is the

essence of the proposed burial at the LNMB
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:
SECTION 1. Until a legislature is elected and convened under a

New Constitution, the President shall continue to exercise legislative
power.
The President shall give priority to measures to achieve the
mandate of the people to:
xxxx
_______________
72 Provisional Constitution, First Whereas Clause; also see In Re:

Puno, A.M. No. 90-11-2697-CA (Resolution), 29 June 1992.
352

Ocampo vs. Enriquez
d) Recover ill-gotten properties amassed by the leaders and

supporters of the previous regime and protect the interest of
the people through orders of sequestration or freezing of assets
of accounts.

Pursuant to this mandate, then President Corazon

Aquino issued three executive orders focused entirely on
the recovery of the ill-gotten wealth taken by Marcos and
his supporters:
a) Executive Order No. 173 created the Presidential
Commission on Good Government (PCGG) tasked to,
among others, assist the President in the „recovery of
all ill-gotten wealth accumulated by former President
Marcos, his immediate family, relatives, subordinates
and close associates x x x by taking undue advantage
of their public office and/or using their powers,
authority, influence, connections or relationship.‰74
b) Executive Order No. 275 authorized the freezing and
sequestration of assets pertaining to Marcos, his
relatives, associates, dummies, agents or nominees,
which had been „acquired by them directly or
indirectly, through or as a result of the improper or
illegal use of funds or properties owned by the
Government of the Philippines‰;76 or „by taking undue
advantage of their office, authority, influence,
connections or relationship.‰77
c) Executive Order No. 1478 empowered the PCGG to file
and prosecute all cases it had investigated pursuant
to Executive Order Nos. 1 and 2.
_______________
73 Executive Order No. 1, CREATING THE PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT (1987).

74 Id., Section 2(a).
75 EXECUTIVE ORDER NO. 2, REGARDING THE FUND, MONEYS, ASSETS, AND
PROPERTIES ILLEGALLY ACQUIRED OR MISAPPROPRIATED BY FORMER PRESIDENT

FERDINAND MARCOS, MRS. IMELDA ROMUALDEZ MARCOS, THEIR CLOSE RELATIVES,
SUBORDINATES, BUSINESS ASSOCIATES, DUMMIES, AGENTS, OR NOMINEES (1987).

76 Id., First Whereas Clause.
77 Id.
78 Executive Order No. 14, DEFINING THE JURISDICTION OVER CASES
INVOLVING THE ILL-GOTTEN WEALTH OF FORMER PRESIDENT FERDINAND E.

MARCOS, MRS. IMELDA R. MARCOS, MEMBERS OF THEIR IMMEDIATE FAMILY, CLOSE
RELATIVES, SUBORDINATES, CLOSE AND/OR BUSINESS ASSOCIATES, DUMMIES, AGENTS
AND NOMINEES.

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Ocampo vs. Enriquez
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:
ARTICLE XVIII
Transitory Provisions
SECTION 26. The authority to issue sequestration or freeze

orders under Proclamation No. 3 dated March 25, 1986 in relation
to the recovery of ill-gotten wealth shall remain operative for not
more than eighteen months after the ratification of this
Constitution. However, in the national interest, as certified by the
President, the Congress may extend said period.
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
_______________
79 Executive Order No. 2, First Whereas Clause.

80 Presidential Commission on Good Government v. Peña, 243 Phil.
93; 159 SCRA 556 (1998).
81 Section 3 of RA No. 10368 defines a „human rights violation‰ as
„any act or omission committed during the period from September 21,
1972 to February 25, 1986 by persons acting in an official capacity and/or
agents of the State.‰
354

Ocampo vs. Enriquez
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 nonmonetary86
reparations to be principally sourced
_______________
82 The definition of human rights violations in Section 3 of R.A. No.

10348 includes: any search, arrest and/or detention without a valid
search warrant or warrant of arrest issued by a civilian court of law,
including any warrantless arrest or detention carried out pursuant to the
declaration of Martial Law by former President Ferdinand E. Marcos as

well as any arrest, detention or deprivation of liberty carried out during

the covered period on the basis of an „Arrest, Search and Seizure Order
(ASSO),‰ a „Presidential Commitment Order (PCO)‰ or a „Preventive
Detention Action (PDA)‰ and such other similar executive issuances as
defined by decrees of former President Ferdinand E. Marcos, or in any
manner that the arrest, detention or deprivation of liberty was effected.
83 A human rights violation under Section 3(b)(5) of R.A. No. 10368
includes „[a]ny act of force, intimidation or deceit causing unjust or
illegal takeover of a business, confiscation of property, detention of
owner/s and or their families, deprivation of livelihood of a person by
agents of the State, including those caused by Ferdinand E. Marcos, his
spouse Imelda R. Marcos, their immediate relatives by consanguinity or
affinity, as well as those persons considered as among their close
relatives, associates, cronies and subordinates under Executive Order
No. 1, issued on February 28, 1986 by then President Corazon C. Aquino
in the exercise of her legislative powers under the Freedom
Constitution.‰
84 Under Section 3(d) of R.A. No. 10368, human rights violations may
be compensation if they were committed by „Persons Acting in an Official
Capacity and/or Agents of the State.‰ This includes former President
Ferdinand E. Marcos, spouse Imelda R. Marcos, their immediate
relatives by consanguinity or affinity, as well as their close relatives,
associates, cronies and subordinates.
85 R.A. No. 10368, Section 4 states:
SECTION 4. Entitlement to Monetary Reparation.·Any
[Human Rights Violation Victim] qualified under this Act shall
receive reparation from the State, free of tax, as herein prescribed
x x x.
86 Id., Section 5 provides:
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Ocampo vs. Enriquez
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 com-
mitted 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
_______________
SECTION 5. Nonmonetary Reparation.·The Department of

Health (DOH), the Department of Social Welfare and Development
(DSWD), the Department of Education (DepEd), the Commission
on Higher Education (CHED), the Technical Education and Skills
Development Authority (TESDA), and such other government
agencies shall render the necessary services as nonmonetary
reparation for HRVVs and/or their families, as may be determined
by the Board pursuant to the provisions of this Act.
SECTION 7. Source of Reparation.·The amount of Ten billion
pesos (P10,000,000,000.00) plus accrued interest which form part
of the funds transferred to the government of the Republic of the
Philippines by virtue of the December 10, 1997 Order of the Swiss
Federal Supreme Court, adjudged by the Supreme Court of the
Philippines as final and executory in Republic v. Sandiganbayan
on July 15, 2003 (G.R. No. 152154) as Marcos ill-gotten wealth and
forfeited in favor of the Republic of the Philippines, shall be the
principal source of funds for the implementation of this Act.

356

Ocampo vs. Enriquez
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.
In Republic v. Sandiganbayan,88 the Court forfeited a
total of USD658 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 USD3,369,975 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 regimeÊs Âorganized pillageÊ 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[,]
_______________
88 Republic v. Sandiganbayan, 453 Phil. 1059; 406 SCRA 190 (2003).

89 686 Phil. 980; 671 SCRA 280 (2012).
90 512 Phil. 425; 476 SCRA 20 (2005).
91 515 Phil. 1; 479 SCRA 1 (2006).
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Ocampo vs. Enriquez
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
_______________
92 Id., at pp. 48-49; pp. 56-57.

93 See Contado v. Tan, 243 Phil. 546; 160 SCRA 404 (1988).
94 495 Phil. 372; 455 SCRA 397 (2005).
95 Id., at p. 372; p. 400.
96 335 Phil. 795; 268 SCRA 332 (1997).
358

Ocampo vs. Enriquez
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:
The Court adopts and approves the Report and its findings and
holds on the basis thereof and of the evidence received and
appreciated by the Commission and duly supported by the facts of
public record and knowledge set forth above and hereinafter, that
the then President (code named Olympus) had stage
managed in and from Malacañang Palace „a scripted and
predetermined manner of handling and disposing of the
Aquino-Galman murder case‰; and that „the prosecution in
the Aquino-Galman case and the Justices who tried and
decided the same acted under the compulsion of some
pressure which proved to be beyond their capacity to
resist,‰ and which not only prevented the prosecution to fully
ventilate its position and to offer all the evidences which it could
have otherwise presented, but also predetermined the final outcome
of the case of total absolution of the twenty-six respondents accused
of all criminal and civil liability.
xxxx
_______________
97 664 Phil. 16; 635 SCRA 487 (2010).

98 545 Phil. 21; 516 SCRA 113 (2007).
99 228 Phil. 42; 144 SCRA 43 (1986).
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Ocampo vs. Enriquez
The record shows suffocatingly that from beginning to end, the

then President used, or more precisely, misused the
overwhelming resources of the government and his
authoritarian powers to corrupt and make a mockery of the

judicial process in the Aquino-Galman murder cases. x x x
Indeed, the secret Malacañan conference at which the authoritarian

President called together the Presiding Justice of the
Sandiganbayan and Tanodbayan Fernandez and the entire
prosecution panel headed by Deputy Tanodbayan Herrera and told
them how to handle and rig (moro-moro) the trial and the close
monitoring of the entire proceedings to assure the predetermined
ignominious final outcome are without parallel and precedent in our
annals and jurisprudence.100 (Emphasis supplied)
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
_______________
100 Id., at pp. 71-83; pp. 70, 82-83.

101 See Heirs of Gregorio Licaros v. Sandiganbayan, 483 Phil. 510,
524; 440 SCRA 483, 497-498 (2004).
102 See Republic v. Tuvera, supra note 98 at p. 61; p. 153.
103 See Presidential Commission on Good Government v. Peña, supra
note 80 at p. 115; p. 574.
104 Mijares v. Ranada, supra note 94 at p. 372; p. 399.
105 Marcos v. Manglapus, supra note 1 at p. 492; p. 682.
106 CIVIL CODE, Article 8.

360

Ocampo vs. Enriquez
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 nationÊs history during the Martial Law regime, and it
would be well to recall his words:
It was a long and horrible nightmare when our peopleÊs rights,

freedoms and liberties were sacrificed at the altar of „national
security‰ even though it involved nothing more than the President-
dictatorÊs perpetuation in office and the security of his relatives and
some officials in high positions and their protection from public
accountability of their acts of venality and deception in government,
many of which were of public knowledge.
xxxx
The treacherous assassination on August 21, 1983 of the

martyred Benigno S. Aquino, Jr., within minutes of his arrival at
the Manila International Airport, although ringed with 2,000
soldiers, shocked and outraged the conscience of the nation. After
three years of exile following almost eight years of detention since
martial law, Aquino, although facing the military commissionÊs
predetermined death sentence, supra, yet refused proper travel
documents, was returning home „to strive for genuine national
reconciliation founded on justice.‰ The late Senator Jose W. Diokno
who passed away this year was among the first victims of the
martial law coup dÊétat to be locked up with Senator Aquino. In
March, 1973, all of their personal effects, including their eyeglasses
were ominously returned to their homes. Their wivesÊ visitation

privileges were suspended and they lost all contact for over a
month. It turned out that Aquino had smuggled out of his cell a
written statement critical of the martial law regime. In swift
retribution, both of them were flown out blindfolded to the army
camp at Fort Laur in Nueva Ecija and kept in solitary confinement
in dark boarded cells with hardly any ventila-
_______________
107 Government Service Insurance System (GSIS) v. Group

Management Corporation (GMC), 666 Phil. 277; 651 SCRA 279 (2011).
108 234 Phil. 144; 150 SCRA 144 (1987).
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Ocampo vs. Enriquez
tion. When their persons were produced before the Court on habeas
corpus proceedings, they were a pitiable sight having lost about 30
to 40 lbs. in weight. Senator Diokno was to be released in
September, 1974 after almost two years of detention. No charges of
any kind were ever filed against him. His only fault was that he
was a possible rival for the presidency.
Horacio Morales, Jr., 1977 TOYM awardee for government
service and then executive vice president of the Development
Academy of the Philippines, was among the hardworking
government functionaries who had been radicalized and gave up
their government positions. Morales went underground on the night
he was supposed to receive his TOYM award, declaring that „(F)or
almost ten years, I have been an official in the reactionary
government, serviced the Marcos dictatorship and all that it stands
for, serving a ruling system that has brought so much suffering and
misery to the broad masses of the Filipino people. (I) refuse to take
any more part of this. I have had enough of this regimeÊs tyranny
and treachery, greed and brutality, exploitation and oppression of
the people,‰ and „(I)n rejecting my position and part in the
reactionary government, I am glad to be finally free of being a
servant of foreign and local vested interest. I am happy to be

fighting side by side with the people.‰ He was apprehended in 1982

and was charged with the capital crime of subversion, until he was
freed in March, 1986 after President Corazon C. AquinoÊs
assumption of office, together with other political prisoners and
detainees and prisoners of conscience in fulfillment of her campaign
pledge.
Countless others forfeited their lives and stand as witnesses to
the tyranny and repression of the past regime. Driven by their
dreams to free our motherland from poverty, oppression, iniquity
and injustice, many of our youthful leaders were to make the
supreme sacrifice. To mention a few: U.P. Collegian editor Abraham
Sarmiento, Jr., worthy son of an illustrious member of the Court
pricked the conscience of many as he asked on the front page of the
college paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang
kikilos kung hindi tayo kikilos? Kung hindi ngayon, kailan pa? He
was locked up in the military camp and released only when he was
near death from a severe attack of asthma, to which he succumbed.
Another TOYM awardee, Edgar Jopson, an outstanding honor
student at the Ateneo University, instinctively pinpointed the gut
issue in 1971 he pressed for a „non-partisan Constitutional
Convention‰; and demanded that the then president-soon-to-turn
dictator „put down in
362

Ocampo vs. Enriquez
writing‰ that he was not going to manipulate the Constitution to

remove his disqualification to run for a third term or perpetuate
himself in office and was called down as „son of a grocer.‰ When as
he feared, martial law was declared, Jopson went underground to
continue the struggle and was to be waylaid and killed at the age of
34 by 21 military troops as the reported head of the rebel movement
in Mindanao. Another activist honor student leader, Emmanuel
Yap, son of another eminent member of the Court, was to disappear
on ValentineÊs Day in 1976 at the young age of 24, reportedly picked
up by military agents in front of Channel 7 in Quezon City, and
never to be seen again.

One of our most promising young leaders, Evelio B. Javier, 43,

unarmed, governor of the province of Antique at 28, a Harvard-
trained lawyer, was mercilessly gunned down with impunity in
broad daylight at 10 a.m. in front of the provincial capitol building
by six mad-dog killers who riddled his body with 24 bullets fired
from M-16 armalite rifles (the standard heavy automatic weapon of
our military). He was just taking a breather and stretching his legs
from the tedious but tense proceedings of the canvassing of the
returns of the presidential snap election in the capitol building.
This was to be the last straw and the bloodless EDSA revolt was
soon to unfold. The Court in Javier v. Comelec, through Mr. Justice
Cruz, said these meager words in tribute to a fallen hero who was
struck down in the vigor of his youth because he dared to speak
against tyranny. „Where many kept a meekly silence for fear of
retaliation, and still others feigned and fawned in hopes of safety
and even reward, he chose to fight. He was not afraid. Money did
not tempt him. Threats did not daunt him. Power did not awe him.
His was a singular and all-exacting obsession: the return of freedom
to his country. And though he fought not in the barricades of war
amid the sound and smoke of shot and shell, he was a soldier
nonetheless, fighting valiantly for the liberties of his people against
the enemies of his race, unfortunately of his race too, who would
impose upon the land a perpetual night of dark enslavement. He
did not see the breaking of the dawn, sad to say, but in a very real
sense Evelio B. Javier made that dawn draw nearer because he
was, like Saul and Jonathan, „swifter than eagles and stronger than
lions.Ê‰109 (Citations omitted)
_______________
109 Id., at pp. 173-177; pp. 175-178.
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Ocampo vs. Enriquez
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 contra-

dict or render ineffective the de-
nunciations, or the policies and
principles enunciated in the
foregoing statutes and jurispru-
dence.
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 PresidentÊs 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
_______________
110 Id., at p. 177; p. 178.

364

Ocampo vs. Enriquez
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 LNMB 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 LNMB. 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 LNMB · for „na-
_______________
111 Public RespondentsÊ Memorandum with Prayer to Lift Status Quo

Ante Order (hereinafter Public RespondentsÊ Memorandum), p. 106.
112 Proclamation No. 208, Excluding from the operation of
Proclamation No. 423, dated July 12, 1957, which established the Fort
Bonifacio Military Reservation a certain portion of the land embraced
therein situated in the Municipality of Taguig, Province of Rizal, and
reserving the same for national shrine purposes, 28 May 1967.
365
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Ocampo vs. Enriquez
tional 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 abolished
the NHI and transferred its functions to the PVAO. The
transferred functions pertained to military memorials,
including the authority to „administer‰ the LNMB.
The authority of the PVAO to administer, maintain and
develop the LNMB 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 LNMB 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 LNMB must be considered limited by
statutes and judicial decisions.116
_______________
113 Presidential Decree No. 1076, AMENDING PART XII (EDUCATION) AND
PART XIX (NATIONAL SECURITY) OF THE INTEGRATED REORGANIZATION PLAN, 26

January 1977.
114 Rabuco v. Villegas, 154 Phil. 615; 55 SCRA 656 (1974).
115 CIVIL CODE, Article 7.
116 See National Artist for Literature Virgilio Almario, et al. v. The
Executive Secretary, supra note 62.
366

Ocampo vs. Enriquez
Since the proposed interment of Marcos in the LNMB

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 PresidentÊs residual
powers; it is not unfettered, and such
power can only be exercised in confor-
mity 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 „PresidentÊs 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 PresidentÊs
residual power to protect the general welfare of the people.
It is founded on
_______________
117 TSN, 7 September 2016, pp. 11-12.

119 Sanlakas v. Executive Secretary, supra note 57.
120 TSN, 7 September 2016, p. 11.
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Ocampo vs. Enriquez

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 p. 153] It is a power borne by the
PresidentÊs duty to preserve and defend the Constitution. It also
may be viewed as a power implicit in the PresidentÊs 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 para-
_______________

121 Marcos v. Manglapus, supra note 1 at p. 504; pp. 694, 723-724.

122 Id., at p. 503; p. 693.
368

Ocampo vs. Enriquez
mount in this case because of historical considerations and

the nature of the norms involved, i.e., peremptory norms of
human rights that are enshrined both in domestic and
international law.
III.
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 stateÊs duty
to ensure respect for, and to protect and fulfill those rights.
Allowing the proposed burial of Marcos in the LNMB
would be a clear violation of the foregoing international law
obligations. Consequently, the planned interment must be
enjoined in light of Article II, Section 11 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 Philip-

pines is obligated to provide effective

remedies, including holistic repara-
tions, 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
369
VOL. 807, NOVEMBER 8, 2016 369

Ocampo vs. Enriquez
treaty obligations and cus-

tomary 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
_______________
124 United Nations, Charter of the United Nations, 24 October 1945,

1 UNTS XVI [hereinafter UN Charter].
125 UN General Assembly, International Covenant on Civil and
Political Rights, 16 December 1966, United Nations, Treaty Series, Vol.
999, p. 171 [hereinafter ICCPR].
126 In Government of the United States of America v. Purganan, G.R.
No. 148571, 24 September 2002, 389 SCRA 623, the Court explained the
principle of pacta sunt servanda as follows:
Article 2, Section 2, of the 1987 Philippine Constitution provides for an

adherence to general principles of international law as part of the law of the
land. One of these principles is the basic rule of pacta sunt servanda or the
performance in good faith of a stateÊs treaty obligations. Pacta sunt servanda is
the foundation of all conventional international law, for without it, the
superstructure of treaties, both bilateral and multilateral, which comprise a
great part of international law, could well be inconsequential.
127 UN Charter, supra, Preamble.

128 Id., Art. 55.
370

Ocampo vs. Enriquez
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
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
_______________
129 Id.
130 Id., Art. 56.
131 Pursuant to Article 40 of the ICCPR, the UNHRC is described as
the official body that monitors compliance with the ICCPR.
132 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, CCPR/C/21/Rev.1/Add.13 [hereinafter
UNHRC General Comment No. 31].
133 Id., par. 2.
134 Case concerning the Barcelona Traction Light and Power
Company, Ltd. (Second Phase, Belgium v. Spain), I.C.J. Reports 1970, p.
32 [hereinafter Barcelona Traction Case].
135 Id.
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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 oneÊs 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 established328 as one of the bedrock
principles of contemporary international human rights
law.329 Ubi ius ibi remedium · „where there is a right,
there is a remedy.‰330 It is settled that gross human rights
violations give rise to a right to remedy for victims, which
in turn im-
_______________
136 Hannum, Hurst, The Universal Declaration of Human Rights, in

The Essentials of Human Rights, p. 351 (Rhona K.M. Smith and
Christian van den Anker eds., 2005).
137 UN General Assembly, Universal Declaration of Human Rights,
10 December 1948, 217 A (III), Art. 3 [hereinafter UDHR].
138 Id., Arts. 4, 5, 9.
139 Id., Art. 12.
140 Hannum, supra.

141 Shelton, Dinah, Remedies in International Human Rights Law, p.

37 (1999 ed.).
142 Starr, Sonja B., Rethinking „Effective Remedies‰: Remedial
Deterrence in International Courts, 83 N.Y.U. L. REV. 693, 698 (2008), p.
693.
143 Id.; BlackÊs Law Dictionary, p. 1120, 6th ed. (1990).
372

Ocampo vs. Enriquez
plies 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
Under Treaties
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:

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;

remedies when granted.147
_______________
144 Office of the United Nations High Commissioner for Human

Rights, Rule-of-Law Tools for Post-Conflict States: Reparations
Programmes, p. 7, U.N. Sales No. E.08.XIV.3 (2008); Shelton, supra note
141 at p. 15.
145 Shelton, Dinah, Remedies in International Human Rights Law, p.
61 (2015 ed.).
146 UDHR, supra note 137, Art. 8.
147 ICCPR, supra note 125, Art. 2.
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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
_______________
148 In General Comment No. 31, supra note 132, the UNHRC
explains:

Article 2, paragraph 3, requires that States Parties make reparation to

individuals whose Covenant rights have been violated. Without reparation to
individuals whose Covenant rights have been violated, the obligation to provide
an effective remedy, which is central to the efficacy of Article 2, paragraph 3, is
not discharged.
149 UN General Assembly, International Convention on the

Elimination of All Forms of Racial Discrimination, 21 December 1965,
United Nations, Treaty Series, Vol. 660, p. 195 [hereinafter CERD].
Article 6 of this treaty provides:
States Parties shall assure to everyone within their jurisdiction effective

protection and remedies, through the competent national tribunals and other
State institutions, against any acts of racial discrimination which violate his
human rights and fundamental freedoms contrary to this Convention, as well
as the right to seek from such tribunals just and adequate reparation or
satisfaction for any damage suffered as a result of such discrimination.
150 UN General Assembly, Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, 10 December
1984, United Nations, Treaty Series, Vol. 1465, p. 85 [hereinafter CAT].
151 Article 14 of the CAT states:
1. Each State Party shall ensure in its legal system that the victim of an act
of torture obtains redress and has an enforceable right to fair and
adequate compensation, including the means for as full rehabilitation as
possible. In the event of the death of the victim as a result of an act of
torture, his dependants shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other persons
to compensation which may exist under national law.
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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 non-repetition 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 Ameri
_______________
152 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].
153 Id., par. 2.
154 General Comment No. 3, par. 6 states:
Reparation must be adequate, effective and comprehensive. States parties are

reminded that in the determination of redress and reparative measures
provided or awarded to a victim of torture or ill treatment, the specificities and
circumstances of each case must be taken into consideration and redress
should be tailored to the particular needs of the victim and be proportionate in
relation to gravity of the violations committed against them. The Committee
emphasi[z]es that the provision of reparation has an inherent preventive and
deterrent effect in relation to future violations.
155 Council of Europe, European Convention for the Protection of

Human Rights and Fundamental Freedoms, as amended by Protocols
Nos. 11 and 14, 4 November 1950, ETS 5 [hereinafter ECPHR]. Article
13 of the Convention provides:
Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in an
official capacity.

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can Convention on Human Rights,156 and the Protocol to

the African Charter,157 provide for effective remedies for
human rights violations.
Under Customary International Law
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 internationally 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 re-
_______________
156 Organization of American States (OAS), American Convention on

Human Rights, „Pact of San Jose,‰ Costa Rica, 22 November 1969
[hereinafter ACHR]. Article 63 of the treaty talks about remedies and
compensation, as follows:
If the Court finds that there has been a violation of a right or freedom
protected by this Convention, the Court shall rule that the injured party be
ensured the enjoyment of his right or freedom that was violated. It shall also
rule, if appropriate, that the consequences of the measure or situation that
constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party.
157 African Union, Protocol to the African Charter on Human and

PeopleÊs Rights on the Rights of Women in Africa, 11 July 2003. Article 27
of the Protocol states:

If the Court finds that there has been violation of a human or peoplesÊ rights, it
shall make appropriate orders to remedy the violation, including the payment
of fair compensation or reparation.

Rights, supra note 144 at pp. 5-6.
159 International Law Commission, Draft Articles on Responsibility
of States for Internationally Wrongful Acts, November 2001, Supplement
No. 10 (A/56/10), Chp. IV.E.1, Art. 1 [hereinafter ILC Articles].
376

Ocampo vs. Enriquez
quired 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
stateÊs 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
_______________
160 ILC Articles, Art. 30(a).

161 Id., Art. 30(b).

162 Id., Art. 31(a).

Rights, supra note 144 at p. 6.
164 UN Sub-Commission on the Promotion and Protection of Human
Rights, Study concerning the right to restitution, compensation and
rehabilitation for victims of gross violations of human rights and
fundamental freedoms: final report/submitted by Theo van Boven, Special
Rapporteur, 2 July 1993, E/CN.4/Sub.2/1993/8, paragraphs 43-46
[hereinafter Van Boven Report]; see also Buyse, Antoine, Lost and
regained? Restitution as a remedy for human rights violations in the
context of International Law, 68 Heidelberg J. OF I. L. 129, 134-135
(2008), wherein the author posits as follows: „The ICJ in its Advisory
Opinion Reparation for Injuries Suffered in the Service of the United
Nations recognized that a nonstate entity · the international
organization of the United Nations · had the right to claim reparation
at the international level from a state. Extending this, one could argue
that if other new subjects of international law arise, they too can claim.
Individuals have been recognized as being such subjects of international
law. To the extent that they are accorded rights under international law,
they should therefore have the possibility to claim.‰
165 Van Boven Report, id., par. 45.
166 ILC Articles, supra note 159, Art. 33(2).
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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 norms 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
_______________
167 UN Commission on Human Rights, Declaration on the Protection

of All Persons from Enforced Disappearance, 28 February 1992,
E/CN.4/RES/1992/29.
168 Article 19 of the Declaration provides:
The victims of acts of enforced disappearance and their family shall obtain
redress and shall have the right to adequate compensation, including the
means for as complete a rehabilitation as possible. In the event of the death of
the victim as a result of an act of enforced disappearance, their dependants
shall also be entitled to compensation.
169 UN General Assembly, Declaration of Basic Principles of Justice

for Victims of Crime and Abuse of Power: resolution/adopted by the
General Assembly, 29 November 1985, A/RES/40/34.
170 The Declaration of Basic Principles of Justice for Victims of Crime
(par. 4) states:
Victims should be treated with compassion and respect for their dignity. They
are entitled to access to the mechanisms of justice and to prompt redress, as
provided for by national legislation, for the harm that they have suffered.
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Ocampo vs. Enriquez
provide effective remedies is an additional and independent

violation of internationally recognized human rights.171
Defining Effective Remedies
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 rem-
edy 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 com-
_______________
171 Shelton, supra note 141 at p. 37.

172 Id.

173 Contreras-Garduño, Diana, Defining Beneficiaries of Collective

Reparations: The Experience of the IACtHR, 4 AMSTERDAM LAW FORUM, p.
43 (2012).
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pensation 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
_______________
174 General Comment No. 3, supra note 152, par. 5.

175 Contreras-Garduño, supra note 173.
176 Id.

177 UN Human Rights Committee (HRC), CCPR General Comment

No. 29: Article 4: Derogations during a State of Emergency, 31 August
2001, CCPR/C/21/Rev.1/Add.11, par. 14 [hereinafter General Comment
No. 29] which states: „Article 2, paragraph 3, of the Covenant (ICCPR)
requires a State party to the Covenant to provide remedies for any
violation of the provisions of the Covenant. This clause is not mentioned
in the list of non-derogable provisions in Article 4, paragraph 2, but it
constitutes a treaty obligation inherent in the Covenant as a whole. Even
if a State party, during a state of emergency, and to the extent that such
measures are strictly required by the exigencies of the situation, may
introduce adjustments to the practical functioning of its procedures
governing judicial or other remedies, the State party must comply with
the fundamental obligation, under Article 2, paragraph 3, of the
Covenant to provide a remedy that is effective.‰
178 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-
tEN, 14 May 2007.
380

Ocampo vs. Enriquez
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)
Understanding Reparations
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 StateÊs 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 reestablish 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
_______________
179 Id., par. 185.

180 Sarkin, Jeremy, Providing reparations in Uganda: Substantive
recommendations for implementing reparations in the aftermath of the
conflicts that occurred over the last few decades, 14 AHRLJ 526, 534-535
(2014).
181 Van Boven Report, supra note 164 at p. 7.
182 Factory at Chorzów, Germany v. Poland, Judgment, Claim for
Indemnity, Merits, Judgment No. 13, (1928) PCIJ Series A, No. 17, ICGJ
255 (PCIJ 1928), 13 September 1928.
183 Id., par. 124.
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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 [Inter-American Court of Human Rights] considers that,

beyond the established legal system, the State has a key role and a
primary responsibility to guarantee that victims of crimes against
international law will have effective access under conditions of
equality to measures of reparation, consistent with the standards of
international law governing human rights. Access to reparations for
victims of crimes against humanity must never be subject
exclusively to determination of the criminal liability of the
perpetrators, or the prior disposal of their personal goods, licit or
illicit.186
xxxx
The State must play a primary, rather than a secondary, role in

guaranteeing victimsÊ access to reparations in accordance with the
standards of international law.187
UN Reparations Principles
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
_______________
184 Sarkin, supra note 180 at p. 528.

185 Organization of American States (OAS) Inter-American
Commission on Human Rights, Report on the Implementation of the
Justice and Peace Law: Initial Stages in the Demobilization of the AUC
and First Judicial Proceedings, OEA/Ser.L/V/II, Doc. 3, 2 October 2007
[hereinafter Report on the Implementation of the Justice and Peace
Law].
186 Id., par. 98.

187 Id., par. 110(6).

188 UN General Assembly, Basic Principles and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations of
International Human
382

Ocampo vs. Enriquez
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 BovenÊs 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 StateÊs 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
194
domestically. 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:

_______________
Rights Law and Serious Violations of International Humanitarian Law:

resolution/adopted by the General Assembly, 21 March 2006,
A/RES/60/147 [hereinafter UN Reparations Principles].
190 United Nations Sub-Commission on Prevention of Discrimination
and Protection of Minorities, Resolution 1989/13 of 31 August 1989.
191 Van Boven Report, supra note 164 at par. 137, General Principle
No. 1.
192 Id., par. 137, General Principle No. 2.
193 UN General Assembly Resolution 60/147, 16 December 2005.
195 Buyse, supra note 164 at p. 140.
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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
_______________
196 UN Reparations Principles, supra note 188 at p. 3.

197 The Preamble of the UN Reparations Principles states in relevant
part:
Recalling the provisions providing a right to a remedy for victims

of violations of international human rights law found in numerous

international instruments. x x x
Recalling the provisions providing a right to a remedy for victims
of violations of international human rights found in regional
conventions. x x x
Recognizing that, in honouring the victimsÊ right to benefit from
remedies and reparation, the international community keeps faith
with the plight of victims, survivors and future human
generations and reaffirms the international legal principles of
accountability, justice and the rule of law[.]
198 The UN Reparations Principles, supra note 188, Part I, states:
I. Obligation to respect, ensure respect for and implement

international human rights law and international humanitarian
law.
1. The obligation to respect, ensure respect for and
implement international human rights law and
international humanitarian law as provided for under the
respective bodies of law emanates from:
(a) Treaties to which a State is a party;

(b) Customary international law;
(c) The domestic law of each State.
2. If they have not already done so, States shall, as required

under international law, ensure that their domestic law is
consistent with their intemational legal obligations by:
384

Ocampo vs. Enriquez
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 viola-
_______________
(a) Incorporating norms of international human

rights law and international humanitarian law
into their domestic law, or otherwise implementing
them in their domestic legal system;
(b) Adopting appropriate and effective legislative and
administrative procedures and other appropriate
measures that provide fair, effective and prompt
access to justice;
(c) Making available adequate, effective, prompt and
appropriate remedies, including reparation, as
defined below;
(d) Ensuring that their domestic law provides at least
the same level of protection for victims as that
required by their international obligations.
199 The UN Reparations Principles, supra note 188, Part II, provides:
II. Scope of the obligation

3. The obligation to respect, ensure respect for and
implement international human rights law and
international humanitarian law as provided for under the
respective bodies of law, includes, inter alia, the duty to:
(a) Take appropriate legislative and administrative
and other appropriate measures to prevent
violations;
(b) Investigate violations effectively, promptly,
thoroughly and impartially and, where
appropriate, take action against those allegedly
responsible in accordance with domestic and
international law;
(c) Provide those who claim to be victims of a human
rights or humanitarian law violation with equal
and effective access to justice, as described below,
irrespective of who may ultimately be the bearer of
responsibility for the violation; and
(d) Provide effective remedies to victims, including
reparation, as described below.

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tions of international humanitarian law.200 Elaborating on

the purpose and scope of reparation, the UN Reparations
Principles provides:
IX. Reparation for harm suffered
15. Adequate, effective and prompt reparation is intended to

promote justice by redressing gross violations of international
human rights law or serious violations of international
humanitarian law. Reparation should be proportional to the gravity
of the violations and the harm suffered. In accordance with its
domestic laws and international legal obligations, a State shall
provide reparation to victims for acts or omissions which can be
attributed to the State and constitute gross violations of
international human rights law or serious violations of
international humanitarian law. In cases where a person, a legal
person, or other entity is found liable for reparation to a victim,
such party should provide reparation to the victim or compensate
the State if the State has already provided reparation to the victim.
xxxx

taking account of individual circumstances, victims of gross
violations of international human rights law and serious violations
of international humanitarian law should, as appropriate and
proportional to the gravity of the violation and the circumstances of
each case, be provided with full and effective reparation, as laid out
in principles 19 to 23, which include the following forms:
restitution, compensation, rehabilitation, satisfaction and
guarantees of non-repetition.
Holistic Approach to Reparations

Although the PCIJ in the Chorzów 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:
_______________
200 UN Reparations Principles, supra note 188, Part VII.

201 Supra note 182.
202 Contreras-Garduño, supra note 173 at p. 43.
386

Ocampo vs. Enriquez
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:
19. Restitution should, whenever possible, restore the victim to the

original situation before the gross violations of international human
rights law or serious violations of international humanitarian law
occurred. Restitution includes, as appropriate: restoration of liberty,
enjoyment of human rights, identity, family life and citizenship,
return to oneÊs place of residence, restoration of employment and
return of property.

assessable damage, as appropriate and proportional to the gravity
of the violation and the circumstances of each case, resulting from
gross violations of international human rights law and serious
violations of international humanitarian law, such as:
_______________
203 Van Boven Report, supra note 164, par. 131.

204 I/A Court H.R., Case of Bulacio v. Argentina. Merits, Reparations
and Costs, Judgment of 18 September 2003, Series C, No. 100.
205 Id., Judge A.A. Cancado Trindade (Separate Opinion), Sec. 25.
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(b) Lost opportunities, including employment, education and
social benefits;
(c) Material damages and loss of earnings, including loss of
earning potential;
(d) Moral damage;

21. Rehabilitation should include medical and psychological care

as well as legal and social services.

following:

violations;
(b) Verification of the facts and full and public disclosure of the
truth to the extent that such disclosure does not cause further
harm or threaten the safety and interests of the victim, the
victimÊs relatives, witnesses, or persons who have intervened
to assist the victim or prevent the occurrence of further
violations;
identities of the children abducted, and for the bodies of those
killed, and assistance in the recovery, identification and
reburial of the bodies in accordance with the expressed or
presumed wish of the victims, or the cultural practices of the
families and communities;
(d) 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;
(f) Judicial and administrative sanctions against persons liable
for the violations;
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Ocampo vs. Enriquez
(h) Inclusion of an accurate account of the violations that

occurred in international human rights law and international
humanitarian law training and in educational material at all
levels.


prevention:
(a) Ensuring effective civilian control of military and security

forces;
international standards of due process, fairness and
impartiality;
(d) Protecting persons in the legal, medical and health-care
professions, the media and other related professions, and
human rights defenders;
(e) Providing, on a priority and continued basis, human rights
and international humanitarian law education to all sectors
of society and training for law enforcement officials as well as
military and security forces;
(f) Promoting the observance of codes of conduct and ethical
norms, in particular international standards, by public
servants, including law enforcement, correctional, media,
medical, psychological, social service and military personnel,
as well as by economic enterprises;
(h) Reviewing and reforming laws contributing to or allowing
gross violations of international human rights law and
serious violations of international humanitarian law.
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 po-
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litical community. Reparations include 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
_______________

207 Contreras-Garduño, supra note 173 at p. 41.
208 General Comment No. 3, supra note 152, par. 9.

209 UNHRC General Comment No. 31, supra note 132, par. 16.
210 The Prosecutor v. Thomas Lubanga Dyilo, supra note 178.
211 Id., par. 177.
212 Id., par. 180.
390

Ocampo vs. Enriquez
put the needs and interests of the victim at the center of

the process with the aim of restoring the latterÊs 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 reestablishment 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 guarantees 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
_______________
213 UN Human Rights Committee, Blazek, et al. v. The Czech

Republic, Communication No. 847/1999, CCPR/C/72/D/857/1999, 12 July
2001, par. 7.
214 I/A Court H.R., Case of Gonzales Lluy, et al. v. Ecuador.
Preliminary Objections, Merits, Reparations and Costs. Judgment of
September 1, 2015. Series C, No. 298.; Cf. Case of the Las Dos Erres
Massacre v. Guatemala. Preliminary objection, merits, reparations and
costs. Judgment of November 24, 2009. Series C, No. 211, par. 226, and
Case of Cruz Sanchez, et al. v. Peru, par. 452.
215 Contreras-Garduño, supra note 173 at p. 45, citing Medina-
Quiroga, C. The Battle of Human Rights: Gross, Systematic Violations
and the Inter-American System, p. 369 (1988).
216 Van Boven Report, supra note 164, par. 81, citing the European
Convention for the Protection of Human Rights and Fundamental
Freedoms, Article 50.
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Ocampo vs. Enriquez
holistic approach in providing effective satisfaction can be

discerned in its Vagrancy Cases against the Belgian
Government:
[I]f the victim, after exhausting in vain the domestic remedies

before complaining at Strasbourg of a violation of his rights, were
obliged to do so a second time before being able to obtain from the
Court just satisfaction, the total length of the procedure instituted
by the Convention would scarcely be in keeping with the idea of the
effective protection of human rights. Such a requirement would lead
to a situation incompatible with the aim and object of the
Convention.217
xxxx
Nevertheless, the provisions of Article 50 which recognise the

CourtÊs competence to grant to the injured party a just satisfaction

also cover the case where the impossibility of restitutio in integrum

follows from the very nature of the injury; indeed common sense
suggests that this must be so a fortiori.218
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
_______________
217 Id., par. 82, citing European Court of Human Rights, De Wilde,
Ooms and Versijp Cases („Vagrancy‰ Cases), Judgment of 10 March 1972
(Article 50), Series A, Vol. 14, par. 16.
218 Id., par. 20.
219 RA No. 10368, Section 2.
392

Ocampo vs. Enriquez
of House Bill No. 54 · one of the progenitors of R.A. 10368

· this recognition was one of the main features of the law:
Among the important features of this bill are:
One, Congress recognition that those who have filed a case against

the Marcoses before the US Federal District Court in Hawaii and

are given favorable judgment are considered human rights
violations victims. This is called legislative cognizance.
Two, any person who has secured or can secure a favorable

judgment from any court in the country arising from a human
rights violation is given a so-called conclusive presumption that he
or she is a human rights violation victim.
Three, some ten billion pesos of funds seized from bank accounts
and discovered investments of the Marcos family shall be used to
compensate the victims; and
Four, an independent Human Rights Victims Compensation Board

is created attached to, but not necessarily under the direct
supervision of the CHR to ensure the proper disposition of the funds
guided by this Act.
No amount of money can really be enough to compensate our living

heroes and those survived by their kinds for the democracy that our
people are now enjoying. The least we can do though is pass this bill
to honor, in our small way, the sacrifices, that they have made for
our country.220
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
_______________
220 Explanatory Note of House Bill 54, introduced by Rep. Lorenzo R.

Tañada, III, 15th Congress, First Regular Session.
221 MDL No. 840, CA No. 86-0390, Human Rights Litigation Against
the Estate of Ferdinand E. Marcos.
222 RA No. 10368, Section 17.

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Ocampo vs. Enriquez
while in the custody of Philippine military or paramilitary

groups.223 Several petitioners in the present case were
claimants therein and are
_______________
223 The Final Judgment in Human Rights Litigation Against the

Estate of Ferdinand E. Marcos states in relevant part:
1) The Court incorporates herein its Judgment on Liability entered

October 20, 1992 and its Order entered December 17, 1992 denying
defendantÊs post-trial motions reliability.
2) Judgment for compensatory damages is entered for the below named
randomly selected class claims as follows:
Torture Subclass
Summary Execution Subclass
Disappearance Subclass
3) Judgment for compensatory damages is entered for the remaining

members of the Plaintiff class as follows:
a) for the remaining Plaintiff subclass of all current citizens of
the Republic of the Philippines, their heirs and beneficiaries,
who between September 1972 and February 1986 were
tortured while in the custody of the Philippine military or
para-military groups in the aggregate of $251,819,811.00, to be
divided pro rata.
b) for the remaining Plaintiff Subclass of all current citizens of
who between September 1972 and February 1986 were
summarily executed while in the custody of the Philippine
military or para-military groups in the aggregate of
$409,191,760.00 to be divided pro rata.
c) for the remaining Plaintiff Subclass of all current citizens of


who between September 1972 and February 1986 disappeared
(and are presumed dead) while in the custody of the Philippine
military or para-military groups in the aggregate of
$94,910,640.00 to be divided pro rata.
4) Judgment for exemplary damages, to make an example for the public
good, is entered in the aggregate of $1,197,227,417.90 to be divided
pro rata among all members of the Plaintiff class.
394

Ocampo vs. Enriquez
thus conclusively considered victims of human rights

Both monetary224 and nonmonetary225 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:
Sen. Guingona: Page 5, letter (d) „Monetary Compensation refers to

financial consideration equivalent to.‰ Then, we changed
„economically assessable damage‰ just to ·We just make it „refers
to financial consideration extended to human rights violation
victims.‰
Ang rationale dito kasi this one implies · The present definition
implies that the damage ·When youÊre human rights victim,
it can be equivalent to a material damage when actually
there is no adequate compensation when your human rights
are violated. So we just make it just „financial consideration
extended to human rights violation victims as defined in
this Act.‰ Ganoon.
Rep. Lagman: Baka instead of financial consideration, maski iyong
consideration, ano, eh · Ah, financial reparation.

Sen. Guingona: Okay.

Rep. Lagman: Reparation.
_______________
224 R.A. No. 10368, Section 4 states.

SECTION 4. Entitlement to Monetary Reparation.·Any HRVV
qualified under this Act shall receive reparation from the State,
free of tax, as herein prescribed x x x.
SECTION 5. Nonmonetary Reparation.·The Department of
Health (DOH), the Department of Social Welfare and Development
(DSWD), the Department of Education (DepEd), the Commission
on Higher Education (CHED), the Technical Education and Skills
Development Authority (TESDA), and such other government
agencies shall render the necessary services a nonmonetary
reparation for HRVVs and/or their families, as may be determined
by the Board pursuant to the provisions of this Act.
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Ocampo vs. Enriquez
Sen. Guingona: Reparation. Instead of „economically

assessable‰ parang sinasabi mo you[r] right has been
violated but thatÊs eqivalent to this amount.226
xxxx
Sen. Arroyo: x x x Here, we seemed to be concerned about the

physical aspects of human rights, meaning torture and all that. But
take for instance, those who were economically depressed, harassed.
You mean to say the family of Chino Roces, who lost his entire
Manila Times and his family, is not really living in poverty x x x.
Now they will not ask for compensation but they would
want recognition. This is the purpose of recognition. That is

why to us that roll of honor is very important. Because to

others, they just want to be recognized.227 (Emphasis supplied)
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 StateÊs 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 stateÊs 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.
_______________
226 Bicameral Conference Committee on the Disagreeing Provisions

of Senate Bill 3334 and House Bill No. 5990 (Human Rights Victims
Reparation and Compensation Act), 16 January 2013, I-2, pp. 6-7.
227 Id., at IV-6, p. 7 and I-7, p. 1.
396

Ocampo vs. Enriquez
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
non-repetition 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.
_______________
228 See In re Estate of Ferdinand Marcos, Human Rights Litigation

Hilao v. Estate of Ferdinand Marcos, 25 F. 3d 1467.
229 Megret, Frederic, Of Shines, Memorials and Museums: Using the
International Criminal CourtÊs Victim Reparation and Assistance Regime
to Promote Transitional Justice, p. 13, available at
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1403929> (last
accessed 20 September 2016) [Megret]; Megret, Frederic, The
International Criminal Court and the Failure to Mention Symbolic
Reparations, p. 12, available at <http://papers.ssrn.com/sol3/papers.cfm?
abstract

_id=1275087> [last accessed 20 September 2016] [Megret II].

230 Megret II, id., at p. 3.
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Ocampo vs. Enriquez
As earlier explained, a comprehensive and holistic program

of reparations is expected to contain aspects of both.231
Symbols as sources of meaning
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 post-conflict 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 commissionÊs
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 meas-
_______________


232 Megret II, supra note 229 at p. 6.
233 Doñoso, Gina, Inter-American Court of Human RightsÊ reparation
judgments: Strengths and challenges for a comprehensive approach, 49
Revista IIDH 29, 58 (2009); Megret II, supra note 229 at p. 6.
234 Sarkin, supra note 180 at p. 548, citing the Report of Truth and
Reconciliation Commission of South Africa.
235 UN Sub-Commission on the Promotion and Protection of Human
Rights, Question of the impunity of perpetrators of human rights
violations (civil and political), 26 June 1997, E/CN.4/Sub.2/1997/20, par.
40 [hereinafter Joinet Report]; Contreras-Garduño, supra note 173 at p.
42.
398

Ocampo vs. Enriquez
ures 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
personÊs need for „dignity, emotional relief, participation in
the social polity, or institutional reordering.‰239 If given in
isolation, monetary reparation may even
_______________

Rights, supra note 144 at p. 23.
237 Antkowiak, Thomas, An Emerging Mandate for International
Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J.
IntÊl Law, 279, 284 (2011).
238 Megret, supra note 229 at p. 13.
239 Antkowiak, supra.
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Ocampo vs. Enriquez
have a trivializing effect on suffering in certain cultural,

social, and political contexts.240
Forms of Symbolic Reparation
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
stateÊs 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
_______________
240 Id.
241 UN Reparations Principles, supra note 188, Principle 22(b).
242 Id., Principle 22(d).
243 Id., Principle 22(e).
244 Id., par. 22(g).
245 Megret, supra note 229 at p. 26.
246 Megret II, supra note 229 at p. 5.
247 UN Reparations Principles, supra note 188, Principle 23(g).
248 Id., Principle 23(h).
400

Ocampo vs. Enriquez

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
Memorials as Symbolic Reparation
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),
_______________
249 The Prosecutor v. Thomas Lubanga Dyilo, supra note 178, par.
237.
250 I/A Court H.R., Case of the Moiwana Community v. Suriname.
Preliminary Objections, Merits, Reparations and Costs. Judgment of
June 15, 2005. Series C, No. 124, par. 218.
251 I/A Court H.R., Case of Trujillo Oroza v. Bolivia. Reparations and
Costs. Judgment of February 27, 2002. Series C, No. 92, par. 122.
252 I/A Court H.R., Serrano-Cruz Sisters v. El Salvador, Monitoring
Compliance with Judgment, Order of the Court, 2010 Inter-Am. Ct. H.R.
(Feb. 3, 2010).
253 Case of the Moiwana Community v. Suriname, supra, par. 191.
254 I/A Court H.R., Case of Norin Catrimán, et al. (Leaders, members
and activist of the Mapuche Indigenous People) v. Chile. Merits,
Reparations and Costs. Judgment of May 29, 2014. Series C, No. 279,

par. 432.
255 I/A Court H.R., Case of Espinoza Gonzales v. Peru. Preliminary
Objections, Merits, Reparations and Costs. Judgment of November 20,
2014. Series C, No. 289, par. 327.
401
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Ocampo vs. Enriquez
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 nonrecurrence,‰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:
An exhaustive list of all truth and reconciliation commissions that

have advocated the construction of memorials is beyond the scope of
this document. Nevertheless, one should mention the
recommendations of the truth and reconciliation commissions in El
Salvador, Germany, Guatemala, Peru, Morocco and South Africa
and the commission of inquiry in Chad, even though not all their
recommendations were implemented.
The Commission on the Truth for El Salvador clearly called in its

report for the construction of a national monument in El Salvador
bearing the names of all victims of the conflict, recognition of their
good name and the serious crimes of which they were the victims
and the institution of a national holiday in memory of the victims of
conflict as a symbol of reconciliation.
Similarly, the Commission for Historical Clarification in Guatemala

recommended, among other things, that monuments and parks be

constructed and the names of victims assigned to public buildings
and highways in memory of the victims. The Commission stated
that „the historical memory, both individual and collective, forms
the basis of national identity.‰259
_______________
256 UN Human Rights Council, Report of the Special Rapporteur in

the field of cultural rights, Memorialization processes, 23 January 2014,
par. 5 [hereinafter Shaheed Report].
257 Id., Summary.
258 Id., par. 12.
259 Id., pars. 39-41.
402

Ocampo vs. Enriquez
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 victimsÊ 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 LNMB. 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 interment of his
remains, because it would involve his victimsÊ 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 opinion 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
_______________
260 Id., par. 9.
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Ocampo vs. Enriquez
Caídos (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 nonrecurrence,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 latterÊs dictatorship. In his report, he welcomed the
measures introduced to combat the exaltation of the coup
dÊétat, 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 Caídos was proposed
because of its ties to General Franco and Francoism.
However, because the structure could not be
_______________
261 UN Human Rights Council, Report of the Special Rapporteur on

the promotion of truth, justice, reparation and guarantees of
nonrecurrence, Mission to Spain, 22 July 2014, par. 5 [hereinafter de
Greiff Report].
262 Id., pars. 29-30
263 Id., par. 32.
264 de Greiff Report, supra.
265 Ley de Memoria Histórica or La Ley por la que se reconocen y
amplían derechos y se establecen medidas en favor de quienes padecieron
persecucion o violencia durante la Guerra Civil y la Dictadura, Ley
52/2007 de 26 de Diciembre.
266 de Greiff Report, supra, par. 27.
267 Id.

404

Ocampo vs. Enriquez
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 Caídos 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 caídos (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
HitlerÊs 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,
_______________
268 Id., par. 30.

269 Id., par. 33.
270 Id., par. 62.
405
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Ocampo vs. Enriquez
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 LNMB. 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.
C. The burial would run

counter to the duty of the

state to combat impunity.
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.
_______________
271 Id., par. 63.

272 Rosales Petition, p. 61.
273 Id., at p. 17.
274 Seibert-Fohr, Anja, Reconstruction Through Accountability in
MAX PLANCK YEARBOOK OF UNITED NATIONS LAW, p. 559 (A. Von Bogdandy
and R. Wolfrum, eds., 2005), citing U.N. GAOR, Hum. Rts. Comm., 52d
Sess., 1365th mtg. at p. 12, para. 54, U.N. Doc. CCPR/C/SR.1365 (1994);
U.N. GAOR, Hum. Rts. Comm., 57th Sess. at p. 5, para. 32, U.N. Doc.
CCPR/C/79/Add.65 (1996).
275 Van Boven Report, supra note 164, par. 126.
406

Ocampo vs. Enriquez
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 victimsÊ right to
effective remedy and reparations. In Van BovenÊs 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 UN Impunity Principles
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:
_______________
276 Id., par. 127.

277 Id., par. 130.
278 UN Human Rights Committee, Updated Set of Principles for the
Protection and Promotion of Human Rights through Action to Combat
Impunity, E/CN.4/2005/102/Add.1, 8 February 2005 [hereinafter UN
Impunity Principles].
279 Id., Preamble.
407

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Ocampo vs. Enriquez
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.
Impunity and the Right to Reparation
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:
PRINCIPLE 31. RIGHTS AND DUTIES ARISING OUT OF THE

OBLIGATION TO MAKE REPARATION
Any human rights violation gives rise to a right to reparation on

the part of the victim or his or her beneficiaries, implying a duty on
the part of the State to make reparation and the possibility for the
victim to seek redress from the perpetrator.
xxxx
PRINCIPLE 34. SCOPE OF THE RIGHT TO

REPARATION
The right to reparation shall cover all injuries suffered by

victims; it shall include measures of restitution, compensation,
rehabilitation, and satisfaction as provided by international law.
_______________

280 Id., Principle 1.
408

Ocampo vs. Enriquez
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 victimsÊ
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
The Duty to Preserve Memory
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:

_______________
281 This report was accomplished pursuant to the request of the

UNCHR Sub-Commission on Prevention of Discrimination and
Protection of Minorities for Joinet to undertake a study on the impunity
of perpetrators of human rights violations.
282 Joinet Report, supra note 235.
283 Id., par. 42.
409
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Ocampo vs. Enriquez
PRINCIPLE 3. THE DUTY TO PRESERVE MEMORY
A peopleÊs knowledge of the history of its oppression is part of its

heritage and, as such, must be ensured by appropriate measures in
fulfillment of the StateÊs 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:
Aware that there can be no just and lasting reconciliation unless

the need for justice is effectively satisfied,
Equally aware that forgiveness, which may be an important
element of reconciliation, implies, insofar as it is a private act, that
the victim or the victimÊs beneficiaries know the perpetrator of the

violations and that the latter has acknowledged his or her deeds,
xxxx
Convinced, therefore, that national and international measures

must be taken for that purpose with a view to securing jointly, in
the interests of the victims of violations, observance of the right to
know and, by implication, the right to the truth, the right to justice
and the right to reparation, without which there can be no effective
remedy against the pernicious effects of impunity.284
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
„in-
_______________
284 UN Impunity Principles, supra note 278, Preamble.
410

Ocampo vs. Enriquez
tended 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 LNMB

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 LNMB 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 latterÊs duty to provide effective remedies to victims of
human rights violations, particularly its duty to provide
symbolic reparations and to combat impunity.
Incorporation of international law

principles in Philippine law
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.
_______________
285 Id., Principle 24.

286 Joinet Report, supra note 235, par. 26.
411
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Ocampo vs. Enriquez
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
_______________
287 SECTION 2. Declaration of Policy.·Section 11 of Article II of

the 1987 Constitution of the Republic of the Philippines declares that the
State values the dignity of every human person and guarantees full
respect for human rights. Pursuant to this declared policy, Section 12 of
Article III of the Constitution prohibits the use of torture, force, violence,
threat, intimidation, or any other means which vitiate the free will and
mandates the compensation and rehabilitation of victims of torture or
similar practices and their families.
By virtue of Section 2 of Article II of the Constitution adopting generally
accepted principles of international law as part of the law of the land, the
Philippines adheres to international human rights laws and conventions,
the Universal Declaration of Human Rights, including the International
Covenant on Civil and Political Rights (ICCPR) and the Convention
Against Torture (CAT) and Other Cruel, Inhuman or Degrading
Treatment or Punishment which imposes on each State party the
obligation to enact domestic legislation to give effect to the rights
recognized therein and to ensure that any person whose rights or
freedoms have been violated shall have an effective remedy, even if the
violation is committed by persons acting in an official capacity. In fact,
the right to a remedy is itself guaranteed under existing human rights
treaties and/or customary international law, being peremptory in
character (jus cogens) and as such has been recognized as non-derogable.
Consistent with the foregoing, it is hereby declared the policy of the State
to recognize the 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 February 25, 1986 and restore the victimsÊ 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.
Similarly, it is the obligation of the State to acknowledge the sufferings
and damages inflicted upon persons whose properties or businesses were
forcibly taken over, sequestered or used, or those whose professions were
damaged and/or impaired, or those whose freedom of movement was

restricted, and/or such other victims of the violations of the Bill of Rights.
412

Ocampo vs. Enriquez
„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 victimsÊ 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 enu-
_______________
288 Id.
289 PHILIPPINE ACT ON CRIMES AGAINST INTERNATIONAL HUMANITARIAN
LAW, GENOCIDE, AND OTHER CRIMES AGAINST HUMANITY, Republic Act No.
9851, 11 December 2009.
290 Sections 14 and 15 of RA No. 9851 state:
SECTION 14. Reparations to Victims.·In addition to existing

provisions in Philippine law and procedural rules for reparations to
victims, the following measures shall be undertaken:
(a) The court shall follow principles relating to reparations to, or in

respect of, victims, including restitution, compensation and
rehabilitation. On this basis, in its decision, the court may, either
upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to, or
in respect of, victims and state the principles on which it is acting;

(b) The court may make an order directly against a convicted person
specifying appropriate reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation; and
(c) Before making an order under this section, the court may invite and
shall take account of representations from or on behalf of the
convicted person, victims or other interested persons.
Nothing in this section shall be interpreted as prejudicing the rights of

victims under national or international law.
413
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Ocampo vs. Enriquez
merated 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 LNMB contravenes these
principles, because it would
_______________
SECTION 15. Applicability of International Law.·In the application

and interpretation of this Act, Philippine courts shall be guided by the
following sources:

(a) The 1948 Genocide Convention;

(b) The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I
and II and their 2005 Additional Protocol III;
(c) The 1954 Hague Convention for the Protection of Cultural Property
in the Event of Armed Conflict, its First Protocol and its 1999 Second
Protocol;
(d) The 1989 Convention on the Rights of the Child and its 2000
Optional Protocol on the Involvement of Children in Armed Conflict;
(e) The rules and principles of customary international law;
(f) The judicial decisions of international courts and tribunals;
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or
acceded to by the Republic of the Philippines; and
(i) Teachings of the most highly qualified publicists and authoritative
commentaries on the foregoing sources as subsidiary means for the
determination of rules of international law.
414

Ocampo vs. Enriquez
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.
IV.

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 LNMB,
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
_______________
291 Dimapilis-Baldoz v. Commission on Audit, 714 Phil. 171; 701

SCRA 318 (2013).
292 Id.
415
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Ocampo vs. Enriquez
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)
_______________
293 Presidential Decree 1445 (1978), Section 4(2); Republic Act No.
7160 (1991), Section 305(b); see Strategic Alliance Development
Corporation v. Radstock Securities Limited, 622 Phil. 431; 607 SCRA 413
(2009).
294 Yap v. Commission on Audit, 633 Phil. 174; 619 SCRA 154 (2010).
295 Binay v. Domingo, 278 Phil. 515; 201 SCRA 508 (1991).
296 See Pambansang Koalisyon ng mga Samahang Magsasaka at
Manggagawa sa Niyugan (PKSMMN) v. Executive Secretary, 685 Phil.
295; 669 SCRA 49 (2012).
297 526 Phil. 630; 494 SCRA 141 (2006).
298 Id., at p. 638; p. 150.
416


Ocampo vs. Enriquez
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 LNMB. Consequently, the
intended public expenditure cannot be allowed.
A. The burial would contravene

the public purpose of the
The government in this case proposes to shoulder the

expenses for the burial of Marcos in the LNMB, 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 nationÊs war dead, soldiers or
dignitaries, of the government.301 The LNMB belongs to
this second exception.
Formerly known as the Republic Memorial Cemetery,
the LNMB was designated by former President Ramon M.
Magsaysay as the national cemetery for the nationÊs war
dead in 1954. Through Executive Order

_______________
299 TSN, 7 September 2016, pp. 220-226.

300 See Republic Act No. 7160, Section 17.
301 See Proclamation No. 425, Balantang Memorial Cemetery
National Shrine in Jaro, Iloilo City, 13 July 1994.
417
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Ocampo vs. Enriquez
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 LNMB 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 nationÊs
esteem and reverence for her war dead.‰
It is therefore evident that the LNMB is no ordinary
cemetery, but a burial ground established on public
property to honor the nationÊs 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 LNMB implements a public
purpose because it is a military shrine and a military
memorial.305
To allow the LNMB 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 LNMB must be
considered invalid. As earlier
_______________
302 Executive Order No. 77, Transferring the remains of war dead
interred at Bataan Memorial Cemetery, Bataan Province and at other
places in the Philippines to the Republic Memorial Cemetery at Fort WM
Mckinley, Rizal Province, 23 October 1954.
303 Proclamation No. 86, Changing the „Republic Memorial Cemetery‰
at Fort WM McKinley, Rizal Province, to „Libingan ng mga Bayani,‰ 27
October 1954.
304 Presidential Decree No. 105, Declaring National Shrines as
Sacred (Hallowed) Places and Prohibiting Desecration Thereof (1973).
305 Consolidated Comment dated 22 August 2016, pp. 43-44.
418

Ocampo vs. Enriquez
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 LNMB 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 LNMB would

not be served by the interment, 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:
Undeniably, no cadaver has polarized this nation for the longest

time other than that of the former President Marcos. Thus,
President Duterte deems that it is but high time to put an end to
this issue by burying the mortal remains of a former President,
Commander-in-Chief, and soldier.
President DuterteÊs decision to accord respect to the remains of
former President Marcos is not simply a matter of political
accommodation, or even whims. Viewed from a wider perspective,
this decision should be dovetailed to his war against corruption and
dangerous drugs, and his recent dealings with the CPP/NPA/NDF.
All these are geared towards changing the national psyche and
beginning the painful healing of this country.306
xxxx
It should likewise be emphasized that President DuterteÊs order to

allow former President MarcosÊ interment at the Libingan is based
on his determination that it shall promote national healing and
forgiveness, and redound to the benefit of the Filipino people.
Surely, this is an exercise of his executive prerogative beyond the
ambit of judicial review.307
_______________
306 Id., at p. 5.
307 Id., at p. 26.
420

Ocampo vs. Enriquez
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.
.
C. The burial would promote
only the private interest of
the Marcos 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
_______________
308 Yap v. Commission on Audit, supra note 294 at p. 188; pp. 166-

167.
309 See Albon v. Fernando, supra note 297.
310 Consolidated Comment dated 22 August 2016, p. 16.
420

Ocampo vs. Enriquez
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
______________

311 Id., supra note 51.

312 TSN, 7 September 2016, pp. 165, 234.
313 See Chavez v. Presidential Commission on Good Government, 360
Phil. 133; 299 SCRA 744 (1998).
314 In Presidential Commission on Good Government v. Peña, supra
note 80 at p. 107; p. 566, the Court stated:
The rationale of the exclusivity of such jurisdiction is readily understood. Given

the magnitude of the past regimeÊs „organized pillage‰ and the ingenuity of the
plunderers and pillagers with the assistance of the experts and best legal
minds available in the market, it is a matter of sheer necessity to restrict
access to the lower courts, which would have tied into knots and made
impossible the CommissionÊs gigantic task of recovering the plundered wealth
of the nation, whom the past regime in the process had
421
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Ocampo vs. Enriquez
and every Filipino will incur more expenses, no

matter how modest, for the proposed burial. No
situation can be more ironic indeed.
Epilogue
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 heroÊs
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 governed.‰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 CruzÊs words. They fought, and the people
ultimately
_______________
saddled and laid prostrate with a huge $27 billion foreign debt that has since
ballooned to $28.5 billion.
315 Public RespondentsÊ Memorandum, p. 60.

316 Ordoñez v. Director of Prisons, G.R. No. 115576, 4 August 1994,
235 SCRA 152.
422

Ocampo vs. Enriquez
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
LNMB 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 LNMB 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
_______________
317 Id.
318 Foote, Kenneth E. and Maoz Azaryahu, Toward a Geography of
Memory: Geographical Dimensions of Public Memory, Journal of Political
and Military Sociology, Vol. 35, No. 1 (Summer), pp. 125-144 (2007).

423
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Ocampo vs. Enriquez
truths. It can invalidate the arbitrary distillation of the

nationÊs 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 citizensÊ 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 LNMB 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 stateÊs duty to recognize the pain of
countless
_______________
319 In Public RespondentsÊ Memorandum (p. 99), it was declared:
Besides, the chapter of Philippine history on Martial Law is not written in

ordinary ink. Rather, its every word is written in the blood and tears of
recognized and unsung heroes; its every page is a Shroud that has their
bloodied but valiant faces on it; and each turn of these pages echoes their cried
for freedom.

The point here is simple: the interment of the remains of former President
Marcos at the Libingan is not tantamount to a consecretion of his mortal
remains or his image for that matter. No amount of heartfelt eulogy, gun
salutes, holy anointment, and elaborate procession and rituals can
transmogrify the dark pages of history during Martial Law. As it is written
now, Philippine history is on the side of petitioners and everybody who fought
and died for democracy.
424

Ocampo vs. Enriquez
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.
WHEREFORE, I vote to GRANT the Petitions.
DISSENTING OPINION
CARPIO, J.:
The petitions seek to prevent the interment of the

remains of the late President Ferdinand E. Marcos
(Marcos) at the Libingan ng mga Bayani (LNMB).
The LNMB was formerly known as the Republic
Memorial Cemetery. On 27 October 1954, then President
Ramon Magsaysay issued Proclamation No. 86, „changing
the Republic Memorial Cemetery at Fort WM McKinley,
Rizal Province, to Libingan ng mga Bayani.‰ More than a
decade later, then President Marcos issued Proclamation
No. 208 on 28 May 1967, excluding approximately
1,428,800 square meters from the Fort Bonifacio Military
Reservation for the site of the LNMB, and reserving the
same for national shrine purposes under the
administration of the National Shrines Commission. The
National Shrines Commission was subsequently abolished
and its functions transferred to the Military Shrines

Service of the Philippine Veterans Affairs Office of the

Department of National Defense under Presidential Decree
No. 1076, issued by then President Marcos on 26 January
1977.
On 11 September 2000, Acting Armed Forces of the
Philippines (AFP) Chief of Staff Jose M. Calimlim, by order
of the Secretary of National Defense, issued AFP
Regulation 161-375 (AFPR G 161-375),1 on the allocation of
cemetery plots at the LNMB.
Under AFPR G 161-375, the deceased persons who are
qualified to be interred at the LNMB are:
_______________
1 AFPR G 161-375 superseded AFPR G 161-374 dated 27 March

1998, which in turn superseded AFPR G 161-373 issued on 9 April 1986.
425
VOL. 807, NOVEMBER 8, 2016 425

Ocampo vs. Enriquez
a. Medal of Valor Awardees;

b. Presidents or Commander-in-Chief, AFP;
c. Secretaries of National Defense;
d. Chiefs of Staff, AFP;
e. Generals/Flag Officers of the AFP;
f. Active and retired military personnel of the AFP to include
active draftees and trainees who died in line of duty, active
reservists and CAFGU Active Auxiliary (CAA) who died in combat
operations or combat related activities;
g. Former members of the AFP who laterally entered or joined the
Philippine Coast Guard (PCG) and the Philippine National Police
(PNP);
h. Veterans of Philippine Revolution of 1890, WWI, WWII and
recognized guerillas;
i. Government Dignitaries, Statesmen, National Artists and other
approved by the Commander-in-Chief, Congress or the Secretary of

National Defense; and

j. Former Presidents, Secretaries of Defense, Dignitaries,
Secretaries of National Defense and Chief[s] of Staff.
AFPR G 161-375 also enumerates those not qualified

to be interred at the LNMB, namely:
a. Personnel who were dishonorably separated/reverted/

discharged from the service; and
b. Authorized personnel who were convicted by final judgment of
an offense involving moral turpitude. (Emphasis supplied)
In a Memorandum dated 7 August 2016, the

Department of National Defense (DND) Secretary Delfin
Lorenzana ordered the AFP Chief of Staff Ricardo Visaya to
undertake the necessary preparations to facilitate the
interment of Marcos at the LNMB, in compliance with the
verbal order of President Rodrigo Duterte on 11 July 2016.
The DND Memorandum resulted in the filing of these
petitions, which oppose the implementation of the DND
Memorandum for the interment of Marcos at the LNMB.
426

Ocampo vs. Enriquez
I vote to grant the petitions on the ground that Marcos

is not qualified to be interred at the LNMB, and thus the
Memorandum dated 7 August 2016 of DND Secretary
Lorenzana was issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
Marcos is disqualified from

being interred at the LNMB
Assuming that Marcos was qualified to be interred at

the LNMB as a Medal of Valor Awardee, and as a former

President of the Philippines and Commander-in-Chief, he
ceased to be qualified when he was ousted from the
Presidency by the nonviolent People Power Revolution on
25 February 1986.
AFPR G 161-375, which respondents rely on to justify
the interment of Marcos at the LNMB, specifically provides
that „personnel who were dishonorably
separated/reverted/discharged from the service‰ are
not qualified to be interred at the LNMB. Marcos, who was
forcibly ousted from the Presidency by the sovereign act of
the Filipino people, falls under this disqualification.
Dishonorable discharge from office
In Marcos v. Manglapus,2 the Court described Marcos as

„a dictator forced out of office and into exile after
causing twenty years of political, economic and social havoc
in the country.‰3 In short, he was ousted by the Filipino
people. Marcos was forcibly removed from the Presidency
by what is now referred to as the People Power Revolution.
This is the strongest form of dishonorable discharge
from office since it is meted out by the direct act of the
sovereign people.
The fact of MarcosÊ ouster is beyond judicial review. This
Court has no power to review the legitimacy of the People
Power Revolution as it was successfully carried out by the
sovereign people who installed the revolutionary
government of Corazon C. Aquino. The people have spo-
_______________
2 258 Phil. 479; 177 SCRA 668 (1989).

3 Id., at p. 492; p. 682.
427
VOL. 807, NOVEMBER 8, 2016 427

Ocampo vs. Enriquez

ken by ratifying the 1987 Constitution, which was drafted

under the Aquino government installed by the People
Power Revolution. The Court has been steadfast in
dismissing challenges to the legitimacy of the Aquino
government, and has declared that its legitimacy is not a
justiciable matter that can be acted upon by the Court.4
As the removal of Marcos from the Presidency is no
longer within the purview of judicial review, we must
accept this as an incontrovertible fact which has become
part of the history of the Philippines. This ouster, which
was directly carried out by by the sovereign act of the
Filipino people, constitutes dishonorable removal from
service. Marcos was forcibly removed from the position as
President and Commander-in-Chief by the Filipino people.
In Estrada v. Desierto,5 the Court reiterated the legitimacy
of the removal of Marcos and the establishment of the
Aquino government:
No less than the Freedom Constitution declared that the Aquino

government was installed through a direct exercise of the
power of the Filipino people in defiance of the provisions of the
1973 Constitution, as amended. It is familiar learning that the
legitimacy of a government sired by a successful revolution by
people power is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop.6 (Emphasis
supplied)
The removal of Marcos from the Presidency, therefore, was

a direct exercise of the sovereign act of the Filipino people
that is „beyond judicial scrutiny.‰ It cannot be said that
this removal was an „honorable‰ one. Truly, there is
nothing more dishonorable for a President than being
forcibly removed from office by the direct sovereign act of
the people.
_______________
4 Joint Resolution, LawyersÊ League for a Better Philippines v.

President Aquino, G.R. No. 73748; PeopleÊs Crusade for the Supremacy of
the Constitution v. Aquino, G.R. No. 73972; Ganay v. Aquino, G.R. No.
73990, 22 May 1986 (unsigned Resolution).
5 406 Phil. 1; 353 SCRA 452 (2001).

6 Id., at pp. 43-44; pp. 490-492.
428

Ocampo vs. Enriquez
Respondents argue that because Marcos was not

dishonorably discharged in accordance with the procedures
and guidelines prescribed in Administrative Discharge
Prior to Expiration of Term of Enlistment (Circular 17,
dated 2 October 1987, Series of 1987, of the Armed Forces
of the Philippines), Marcos was honorably separated from
service.
I disagree.
First, Marcos was separated from service with finality,
having been forcibly ousted by the Filipino people on 25
February 1986. Circular 17, issued more than one year
after such separation from office, cannot be made to apply
retroactively to Marcos. When Circular 17 was issued,
Marcos had already been finally discharged, terminated,
and ousted · as President and Commander-in-Chief · by
the Filipino people. Circular 17 requires certain
administrative procedures and guidelines in the discharge
of incumbent or serving military personnel. There is a
physical and legal impossibility to apply to Marcos Circular
17 since it was issued long after Marcos had been
separated from office.
Second, even assuming that Circular 17 can be given
retroactive effect, Marcos was still dishonorably discharged
from service since Circular 17 cannot prevail over the
sovereign act of the Filipino people. Marcos was ousted by
the direct act of the Filipino people. The sovereign people is
the ultimate source of all government powers.7 The
Constitution specifically declares that „sovereignty resides
in the people and all government authority emanates from
them.‰8 Thus, the act of the sovereign people in removing
Marcos from the Presidency, which is now beyond judicial
review, and thus necessarily beyond administrative review,

cannot be overturned by a mere administrative circular

issued by a department secretary. The reality is, more than
one year before Circular 17 was issued, Marcos had already
been removed with finality from office by the sovereign
people for reasons that are far from honorable.
Circular 17, a mere administrative issuance of a
department secretary, cannot be applied retroactively to
undo a final act by the sovereign people. The power of all
government officials, this Court included, ema-
_______________
7 See Negros Oriental II Electric Cooperative, Inc. v. Sangguniang

Panlungsod of Dumaguete, 239 Phil. 403; 155 SCRA 421 (1987).
8 Article II, Section 1, 1987 PHILIPPINE CONSTITUTION.
429
VOL. 807, NOVEMBER 8, 2016 429

Ocampo vs. Enriquez
nates from the people. Thus, any act that runs afoul with
the direct exercise of sovereignty by the people, such as the
removable of a dictator, plunderer and human rights
violator, cannot be countenanced. The sovereign act of the
Filipino people obviously prevails over a mere
administrative circular issued by a department secretary.
Equal Protection Clause
The respondents assert that the disqualifications under

AFPR G 161-375 are inapplicable to former presidents as
the disqualifications under AFPR G 161-375 apply only to
military personnel and not to nonmilitary personnel.
I disagree.
The disqualifications prescribed under AFPR G 161-375
are reasonable per se considering that the LNMB is a
national shrine.9 Proclamation No. 86 renamed the
Republic Memorial Cemetery to LNMB to make it more

„symbolic of the cause for which Filipino soldiers have died‰

and „to truly express the nationÊs esteem and reverence for
her war dead.‰ The disqualifications are safeguards to
ensure that those interred at the LNMB indeed deserve
such honor and reverence.
However, to submit to respondentsÊ view that the
disqualifications under AFPR G 161-375 apply only to
military personnel, and that the President, even as
Commander-in-Chief, is not a military personnel subject to
such disqualifications,10 negates the purpose for which the
LNMB was originally established, which is to honor
Filipino soldiers who fought for freedom and democracy for
our country. Indeed, Marcos is the very antithesis of
freedom and democracy because he was a dictator as
declared by this Court.
RespondentsÊ view will discriminate against military
personnel who are subject to the disqualifications. Applying
only to military personnel the disqualifications will unduly
favor nonmilitary personnel who will always be eligible,
regardless of crimes committed against the State or
_______________
9 Proclamation No. 208, issued on 28 May 1967.

10 Consolidated Comment (of public respondents) in G.R. No. 225973,
G.R. No. 225984, and G.R. No. 226097, pp. 54-55.
430

Ocampo vs. Enriquez
humanity, to be interred at the LNMB as long as they are

included in the list of those qualified. This will lead to the
absurd situation where a military officer who was
dishonorably discharged would be disqualified, while a
deposed President who was dishonorably discharged
through an act of the sovereign people for committing
plunder, human rights violations, and other atrocious acts

would still be qualified to be interred at the LNMB.

The term „personnel‰ is not defined anywhere in
Circular 17 and thus, we must refer to its common usage.
Personnel is defined as „the people who work for a
particular company or organization.‰11 The enumeration of
the people qualified to be interred at the LNMB includes
both military (such as the Generals, Flag Officers and
Active and Retired Military personnel of the AFP) and
civilian (such as Presidents, Secretaries of National
Defense, Government Dignitaries, Statesmen, National
Artists and widows of former Presidents) personnel. Thus,
the term „personnel‰ as used in the provision for
disqualifications should refer to both military and civilian
personnel. Significantly, paragraph 4 of AFPR G 161-375,
the provision which enumerates those not qualified to be
interred at the LNMB, does not use the word „military‰ to
define personnel, while for other provisions in the
regulation, the term „military‰ is specifically used to
classify „personnel.‰
If as respondents argue, the disqualifications should
apply only to military personnel, then AFPR G 161-375
would be a patent violation of the Equal Protection Clause
as it would indiscriminately create unreasonable
classifications between civilian and military personnel for
purposes of interment at the LNMB. Such classification
serves no purpose and is not germane to the purpose of
interment at the LNMB. The Equal Protection Clause
enshrined in Section 1, Article III of the 1987 Constitution
states that: „No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person
be denied the equal protection of the laws.‰ The Equal
Protection Clause applies not
_______________
11 <http://www.merriam-webster.com/dictionary/personnel?
utm_campaign=sd&utm_medium=serp&utm_source=jsonld> (last
accessed 14 September 2016).
431

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Ocampo vs. Enriquez
only to statutes or legislative acts but to all official state

actions.12 As explained in Bureau of Customs Employees
Associations (BOCEA) v. Hon. Teves:13
Equal protection simply provides that all persons or things

similarly situated should be treated in a similar manner, both as to
rights conferred and responsibilities imposed. The purpose of the
equal protection clause is to secure every person within a stateÊs
jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statute or by its
improper execution through the stateÊs duly constituted authorities.
In other words, the concept of equal justice under the law requires
the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a
legitimate governmental objective.14
To be valid, a classification must be reasonable and

based on real and substantial distinctions. The Court, in
the landmark case of Victoriano v. Elizalde Rope WorkersÊ
Union,15 held:
All that is required of a valid classification is that it be reasonable,

which means that the classification should be based on substantial
distinctions which make for real differences; that it must be
germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.16
Thus, for a classification to be valid and compliant with

the Equal Protection Clause, it must (1) be based on
substantial distinctions, (2) be
_______________
12 1-United Transport Koalisyon (1-UTAK) v. Commission on

Elections, G.R. No. 206020, 14 April 2015, 755 SCRA 441; Biraogo v.

Philippine Truth Commission of 2010, 651 Phil. 374; 637 SCRA 78

(2010).
13 677 Phil. 636; 661 SCRA 589 (2011).
14 Id., at p. 660; pp. 609-610.
15 158 Phil. 60; 59 SCRA 54 (1974).
16 Id., at p. 87; pp. 77-78.
432

Ocampo vs. Enriquez
germane to the purpose of the law, (3) not be limited to

existing conditions only, and (4) apply equally to all
members of the same class.17
In this case, however, there is no substantial distinction
between the military and civilian personnel, for purposes of
interment at the LNMB, that would warrant applying the
disqualifications to military personnel and not to civilian
personnel.
In Central Bank Employees Association, Inc. v. Bangko
Sentral ng Pilipinas,18 the Court found that the rank-and-
file employees of the Bangko Sentral ng Pilipinas (BSP)
were unduly discriminated against when all the rank-and-
file employees of other Government Financial Institutions
(GFIs) were exempted from the Salary Standardization
Law (SSL) while the SSL continued to be applied to the
rank-and-file employees of the BSP. The Court held that
while the exemption from the applicability of the SSL is a
privilege that is within the prerogative of the legislature to
grant, the validity or legality of the exercise is still subject
to judicial review, such that if it is exercised capriciously
and arbitrarily, the Court is duty bound to correct it. The
Court held:
It bears stressing that the exemption from the SSL is a

„privilege‰ fully within the legislative prerogative to give or deny.
However, its subsequent grant to the rank-and-file of the seven
other GFIs and continued denial to the BSP rank-and-file

employees breached the latterÊs right to equal protection. In other

words, while the granting of a privilege per se is a matter of policy
exclusively within the domain and prerogative of Congress, the
validity or legality of the exercise of this prerogative is subject to
judicial review. So when the distinction made is superficial, and not
based on substantial distinctions that make real differences
between those included and excluded, it becomes a matter of
arbitrariness that this Court has the duty and the power to correct.
As held in the United Kingdom case of Hooper v. Secretary of State
for Work and Pensions, once the State has chosen to confer benefits,
„discrimination‰ contrary to law may occur where favorable
treatment already afforded to one group is refused to another, even
though the State is under no obligation to provide that favorable
treatment.
_______________
17 Tiu v. Court of Appeals, 361 Phil. 229; 301 SCRA 278 (1999).
18 487 Phil. 531; 446 SCRA 299 (2004).
433
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Ocampo vs. Enriquez
The disparity of treatment between BSP rank-and-file and the

rank-and-file of the other seven GFIs definitely bears the
unmistakable badge of invidious discrimination · no one can, with
candor and fairness, deny the discriminatory character of the
subsequent blanket and total exemption of the seven other GFIs
from the SSL when such was withheld from the BSP. Alikes are
being treated as unalikes without any rational basis.
Again, it must be emphasized that the equal protection clause
does not demand absolute equality but it requires that all persons
shall be treated alike, under like circumstances and conditions both
as to privileges conferred and liabilities enforced. Favoritism and
undue preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be

looked upon in terms of burden or charges, those that fall within a

class should be treated in the same fashion; whatever restrictions
cast on some in the group is equally binding on the rest.19
(Italicization in the original)
Therefore, under the Equal Protection Clause, persons

who are in like circumstances and conditions must be
treated alike both as to the privileges conferred and
liabilities imposed. In this case, as those enumerated in the
AFPR G 161-375 are all granted the privilege of being
interred at the LNMB, consequently, the disqualifications
must also be made applicable to all of them. There is no
substantial or reasonable basis for the disqualifications to
be made applicable to military personnel only when
civilians alike may be dishonorably dismissed from service
for the same offenses.
To sustain respondentsÊ view would give rise to an
absurd situation where civilians, eligible to be interred at
the LNMB would have the absolute and irrevocable right to
be interred there, notwithstanding that military personnel,
likewise eligible to be interred at the LNMB, may be
disqualified. There is no real or substantial basis for this
distinction. The conditions for disqualification should
likewise be applied to civilian personnel as the privileges
conferred on them · interment at the LNMB · is the
same privilege conferred on military personnel.
_______________
19 Id., at pp. 582-583; pp. 369-370. Citations omitted.
434

Ocampo vs. Enriquez
MarcosÊ interment at the LNMB

is contrary to public policy

Jurisprudence defines public policy as „that principle of

the law which holds that no subject or citizen can lawfully
do that which has a tendency to be injurious to the public
or against the public good.‰20
The Constitution grants the Legislative branch the
power to enact laws and establish the public policy behind
the law. The public policy is prescribed by the Legislature
and is implemented by the Executive. The Executive must
implement the law by observing the highest standards of
promoting the public policy. These standards are embedded
in the Constitution, international law and municipal
statutes. By these standards, the DND Memorandum
ordering the interment of Marcos at the LNMB is contrary
to public policy.
Section 11, Article II of the 1987 Constitution provides
that the State values the dignity of every human person
and guarantees full respect for human rights. This public
policy is further established in Section 12 of Article III
which prohibits the use of torture, force, violence, threat,
intimidation, or any other means which vitiate free will
and mandates the rehabilitation of victims of torture or
similar practices. Also, following the doctrine of
incorporation,21 the Philippines adheres to the Universal
Declaration of Human Rights, International Covenant on
Civil and Political Rights, and the Convention Against
Torture. Through the provisions of the Constitution and
international law, the State binds itself to enact legislation
recognizing and upholding the rights of human rights
victims.
Congress, by enacting Republic Act No. 10368 or „The
Human Rights Victims Reparation and Recognition Act of
2013,‰ established as a „policy of the State‰ to recognize
the heroism and sacrifices of victims of (a) summary
execution; (b) torture; (c) enforced or involuntary disap-
_______________
20 Gonzalo v. Tarnate, Jr., 724 Phil. 198, 207; 713 SCRA 224, 233
(2014), citing Avon Cosmetics, Incorporated v. Luna, 540 Phil. 389, 404;
511 SCRA 376, 393-394 (2006).
21 Article II, Section 2 states: „The Philippines x x x adopts the

generally accepted principles of international law as part of the law of

the land x x x.‰
435
VOL. 807, NOVEMBER 8, 2016 435

Ocampo vs. Enriquez
pearance; and (d) other gross human rights violations

during the Marcos regime. Section 2 of R.A. No. 10368
states:
Consistent with the foregoing, it is hereby declared the policy of

the State to recognize the 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 February 25, 1986 and restore the victimsÊ 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.
(Emphasis supplied)
R.A. No. 10368 mandates that it is the „moral and legal

obligation‰ of the State to recognize the sufferings and
deprivations of the human rights victims of MarcosÊ martial
law regime. Interring Marcos on the hallowed grounds of
the LNMB, which was established to show „the nationÊs
esteem and reverence‰ for those who fought for freedom
and democracy for our country, extols Marcos and
exculpates him from human rights violations. This starkly
negates the „moral and legal obligation‰ of the State to
recognize the sufferings and deprivations of the human
rights victims under the dictatorship of Marcos.
The legislative declarations must be implemented by the
Executive who is sworn under the Constitution to
„faithfully execute the law.‰ The Executive, in
implementing the law, must observe the standard of

recognizing the rights of human rights victims. MarcosÊ
interment at the LNMB will cause undue injury
particularly to human rights victims of the Marcos regime,
as well as the sovereign people who ousted Marcos during
the People Power Revolution. MarcosÊ interment at the
LNMB is thus contrary to public policy.
The sufferings and deprivations of the human rights
victims during the martial law era are well documented.
The United States District Court of Hawaii in In Re Estate
of Marcos22 held Marcos guilty of wide-
_______________
22 910 F. Supp. 1460 (D. Haw., 1995).
436

Ocampo vs. Enriquez
spread human rights violations and awarded one billion

two hundred million U.S. Dollars ($1,200,000,000) in
exemplary damages and seven hundred sixty-six million
U.S. Dollars ($766,000,000) in compensatory damages to
human rights victims. The judgment of the district court
was affirmed by the Ninth Circuit Court of Appeals in
Hilao v. Estate of Marcos.23
Finally, government funds or property shall be spent or
used solely for public purposes.24 Since Marcos was ousted
by the sovereign act of the Filipino people, he was
dishonorably discharged from office. Consequently, MarcosÊ
dishonorable discharge serves to convert his burial into a
private affair of the Marcos family. Hence, no public
purpose is served by interring his remains at the LNMB.
ACCORDINGLY, I vote to GRANT the petitions in
G.R. Nos. 225973, 225984, 226097, 226116, 226117,
226120, and 226294 and to DECLARE the DND
Memorandum dated 7 August 2016 VOID for having been

issued with grave abuse of discretion amounting to lack or

excess of jurisdiction.
SEPARATE CONCURRING OPINION
BRION, J.:
I write this Separate Concurring Opinion to express the

reasons for my vote to dismiss the petitions assailing
President Rodrigo DuterteÊs order to inter the remains of
former President Ferdinand Marcos at the Libingan ng
mga Bayani (LNMB).
I opine that the Court cannot grant the petitions as the
petitioners presented issues that are outside our judicial
authority · as defined by law and jurisprudence · to
resolve.
I am not insensitive to the plight of victims of human
rights violations, nor am I unaware of the allegations they
raised against the Marcos administration. But their
emotions and beliefs cannot and should
_______________
23 103 F.3d 767 (9th Cir., 1996).

24 Fort Bonifacio Development Corp. v. Commissioner of Internal
Revenue, 694 Phil. 7; 679 SCRA 566 (2012).
437
VOL. 807, NOVEMBER 8, 2016 437

Ocampo vs. Enriquez
not influence the faithful discharge of my duties as a

Member of this Court.
The judicial power that the Court wields is symbolized
by a blindfolded lady carrying a set of scales for a reason: it
bases its decision, not on who the litigants are, nor on the
clout · political, emotional, or financial · they may carry;
judicial adjudication is based on law and evidence alone.

Under this standard, I cannot grant the petitions without

knowingly crossing the line separating judicial power from
judicial overreach.
To my mind, the present petitions, however emotionally
charged they might be, do not present an actual case or
controversy that calls for the exercise of the power of
judicial review.
Without an actual case or controversy, we cannot and
should not exercise this exceptional power; even our
expanded jurisdiction under the Constitution does not
allow exceptions to this deficiency. For us to indulge in this
exercise would not only amount to a judicial overreach, but
could possibly thrust this Court into a political minefield
that could not be traversed without weakening the publicÊs
trust and confidence in our institution.
Ours is a power that emanates from the authority,
granted to us under the Constitution, to interpret and
apply the law in actual and live disputes. We exercise this
power through the decisions we render in cases presented
before us; without the publicÊs respect and trust in the legal
soundness of our decisions, our pronouncements would be
no different from meaningless doodles that children write
on throw away papers.
Even if we were to exercise our power of judicial review
in these petitions, the exercise of our judgment should be
limited by the following considerations:
First, judicial review, even under our CourtÊs expanded
jurisdiction, does not empower the Court to directly pass
upon allegations involving violations of statutes;
Second, the ConstitutionÊs „faithful execution‰ clause
cannot be made the basis to question the ExecutiveÊs
manner of implementing our laws;
438

Ocampo vs. Enriquez
Third, the petitioners failed to specify any treaty

obligation prohibiting MarcosÊ burial at the LNMB;

Fourth, the Constitution, while built on the ashes of the

Marcos regime, should not be interpreted in a way that
would prevent reconciliation and the countryÊs move
towards national unity; and
Finally, the necessity of MarcosÊ burial at the LNMB is
a political question that the President has decided, and is
not without support from the Filipino electorate.
I shall discuss these points in the order posed above.
Judicial review, even under our

CourtÊs expanded jurisdiction,
does not empower the Court to
directly pass upon allegations
involving violations of statutes.
The petitions directly assail before this Court the

PresidentÊs decision allowing the interment of the remains
of former President Marcos at the LNMB; they impute
grave abuse of discretion on President Duterte for this
decision and seek, under this CourtÊs expanded jurisdiction,
the nullification of his actions. By doing so, the petitioners
directly seek the exercise of our power of judicial review.
After due consideration, I find that these petitions failed
to establish the necessity of the CourtÊs direct exercise of its
power of judicial review, as their cited legal bases and
arguments largely involve violations of the law or its
misapplication. The remedy available to them, given their
objective, is not judicial review under the CourtÊs expanded
jurisdiction, but the ordinary remedies available for errors
of law under the Rules of Court.
Thus, we cannot grant to the petitioners the remedy
they seek, as their desired remedy lies outside this CourtÊs
power to directly provide.
The petitions collectively assert that the burial order
violates several statutes and implementing rules and
regulations, among them: AFP
439
VOL. 807, NOVEMBER 8, 2016 439

Ocampo vs. Enriquez
Regulations G 161-373,1 Republic Act (RA) No. 289,2 and

RA 10368.3 The petitions further assert that the PresidentÊs
failure to interpret these laws, together or in relation with
one another, to bar MarcosÊ burial at the LNMB, violates
the faithful execution clause and the spirit of the 1987
Constitution.
Indeed, our Court now possesses the duty to determine
and to act when „grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of . . . the
government‰ exists. This is a grant of power under the
second paragraph of Article VIII, Section 1 of the 1987
Constitution.
Under the expanded jurisdiction that the Constitution
granted this Court, our duty to exercise judicial review
runs broad and deep; it exists even when an aspect of the
case involves a political question. We have in fact cited this
duty to justify the relaxation of the „standing‰ requirement
for judicial review when the case presents a matter of
transcendental importance, a standard that the Court has
formulated and self-defined to allow for the exceptional
application of our jurisdiction.
Separately from all these, I have also been pushing for
an alternative approach in invoking our expanded
jurisdiction, by recognizing that a prima facie showing of
grave abuse of discretion on the part of the government in
cases involving constitutional violations, should be
sufficient to give a Filipino citizen the standing to seek
judicial remedy.
The CourtÊs expanded jurisdiction, however, affects only
the means of invoking judicial review, and does not change
the nature of this power at all. The power of judicial review
pertains to the power of the courts to
_______________
1 AFP Regulations G 161-373 Allocation of Cemetery Plots at the

LNMB, issued on 9 April 1986 by then AFP Chief of Staff General Fidel
V. Ramos and then President Corazon Aquino.
2 AN ACT PROVIDING FOR THE CONSTRUCTION OF A NATIONAL PANTHEON FOR
PRESIDENTS OF THE PHILIPPINES, NATIONAL HEROES, AND PANTHEON FOR

PRESIDENTS OF THE PHILIPPINES, NATIONAL HEROES, AND PATRIOTS OF THE
COUNTRY, 16 June 1948. „Section 1. To perpetuate the memory of all the

Presidents of the Philippines, national heroes and patriots for the
inspiration and emulation of this generation and of generations still
unborn. x x x‰ (Emphasis by petitioner)
3 HUMAN RIGHTS VICTIMS REPARATION AND RECOGNITION ACT OF 2013.
440

Ocampo vs. Enriquez
test the validity of executive and legislative acts for their

conformity with the Constitution.4 As a requirement for its
direct exercise by this Court, the „grave abuse of discretion‰
that triggers the CourtÊs expanded jurisdiction must
necessarily involve a violation of the Constitution.
In other words, the CourtÊs direct authority to exercise
its expanded jurisdiction is limited to the determination of
the constitutionality of a governmental act. Grave abuse of
discretion arising from mere violations of statutes cannot,
as a rule, be the subject of the CourtÊs direct exercise of its
expanded jurisdiction. The petitionersÊ recourse in this
situation lies with other judicial remedies or proceedings,
allowed under the Rules of Court, that may arrive in due
course at the CourtÊs portals for review.
In the context of the present case, for the Court to
directly exercise its expanded jurisdiction, the petitioners
carry the burden of proving, prima facie, that the
PresidentÊs decision to inter Marcos at the LNMB violates
the Constitution.
This view is not only in accord with existing
pronouncements on judicial review and the exercise of
judicial power; it is also the more prudent and practicable
option for the Court.
Opening the CourtÊs direct exercise of its expanded
jurisdiction to acts that violate statutes, however grave the
abuse of the statute might be,

_______________
4 Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009, 583

SCRA 119, 128-129. Note, at this point, that judicial review is an aspect
of judicial power, which the Constitution defines as the power to „settle
actual controversies involving rights which are legally demandable and
enforceable‰; thus the Court necessarily exercises judicial power when
engaging in judicial review, but not all exercises of judicial power
includes, or needs, the exercise of the judicial review power. Judicial
review, when approached through the traditional route, requires the
existence of four requirements, viz.: (1) an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging the
act must have „standing‰ to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and
(4) the issue of constitutionality must be the very lis mota of the case.
441
VOL. 807, NOVEMBER 8, 2016 441

Ocampo vs. Enriquez
significantly dilutes the doctrines of hierarchy of courts,5

primary jurisdiction,6 and exhaustion of administrative
remedies.7 In short, the necessity for the application of
these doctrines diminishes when recourse to the Court is
immediately and directly made available.
_______________
5 Under the principle of hierarchy of courts, direct recourse to this

Court is improper because the Supreme Court is a court of last resort
and must remain to be so in order for it to satisfactorily perform its
constitutional functions, thereby allowing it to devote its time and
attention to matters within its exclusive jurisdiction and preventing the
overcrowding of its docket. Republic v. Caguioa, G.R. No. 174385,
February 20, 2013, 691 SCRA 306.
6 The doctrine of primary jurisdiction holds that if a case is such that

its determination requires the expertise, specialized training and

knowledge of an administrative body, relief must first be obtained in an
administrative proceeding before resort to the courts is had even if the
matter may well be within their proper jurisdiction. It applies where a
claim is originally cognizable in the courts and comes into play whenever
enforcement of the claim requires the resolution of issues which, under a
regulatory scheme, have been placed within the special competence of an
administrative agency. In such a case, the court in which the claim is
sought to be enforced may suspend the judicial process pending referral
of such issues to the administrative body for its view or, if the parties
would not be unfairly disadvantaged, dismiss the case without prejudice.
Euro-Med Laboratories Phil., Inc. v. Province of Batangas, G.R. No.
148106, July 17, 2006, 495 SCRA 301.
7 The general rule is that before a party may seek the intervention of
the court, he should first avail of all the means afforded him by
administrative processes. The issues which administrative agencies are
authorized to decide should not be summarily taken from them and
submitted to a court without first giving such administrative agency the
opportunity to dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is
the doctrine of primary jurisdiction; that is, courts cannot or will not
determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to the resolution of that
question by the administrative tribunal, where the question demands the
exercise of sound administrative discretion requiring the special
knowledge, experience and services of the administrative tribunal to
determine technical and intricate matters of fact. Republic v. Lacap, G.R.
No. 158253, March 2, 2007, 517 SCRA 255, 265.
442

Ocampo vs. Enriquez
The practice of directly accessing this Court could also

possibly add petitions that are jointly cognizable with the
lower courts, to the CourtÊs already clogged dockets, and
deluge this Court with matters that are highly technical in
nature or are premature for adjudication. Let it be

remembered that the Supreme Court is not a trier of facts;

this adjudicatory role belongs, as a rule, to the lower
courts.
In these lights, I find that the petitionersÊ allegations
equating President DuterteÊs alleged statutory violations
(when he issued his burial order) to grave abuse of
discretion, are not the proper subject of judicial review
under the CourtÊs direct exercise of its expanded
jurisdiction.
Assuming, hypothetically, that several statutes have
indeed been erroneously applied by the President, the
remedy for the petitioners is not the direct and immediate
recourse to this Court for the nullification of the illegal acts
committed. Violations of statutes by the Executive may be
assailed through administrative bodies that possess the
expertise on the applicable laws and that possess as well
the technical expertise on the information subject of, or
relevant to, the dispute.
For these statutory violations, recourse may be made
before the courts through an appeal of the administrative
bodyÊs ruling, or by filing for a petition for declaratory relief
before the lower court with jurisdiction over the matter.
Only when these lower courts have rendered their decisions
should these matters be elevated to this Court by appeal or
certiorari; even then, the issues the petitioners may
present are limited to questions of law, not to questions of
fact.
The faithful execution clause does not

allow the constitutionalization of issues
that, if proven to be true, would amount
to the violation of statutes.
Neither can I agree that the „faithful execution‰ clause

found in the Constitution may be used to constitutionalize
issues that primarily involve the manner by which laws are
implemented.
The Constitution vests in the President the power to
execute laws under Section 1, Article VII of the 1987
Constitution which provides:

443
VOL. 807, NOVEMBER 8, 2016 443

Ocampo vs. Enriquez
SECTION 1. The executive power shall be vested in the

President of the Philippines.
The Constitution has apparently left out from this

provision a definition of what „executive power‰ exactly is,
in order to give the President sufficient flexibility and
leeway in the implementation of laws. We thus have
jurisprudence recognizing the vast and plenary nature of
executive power,8 and the PresidentÊs vast discretion in
implementing laws.
_______________
8 In Sanlakas v. Executive Secretary, G.R. No. 159085, February 3,

2004, 421 SCRA 656, for instance, the Court noted:
In The Philippine Presidency A Study of Executive Power, the late Mme.
Justice Irene R. Cortes, proposed that the Philippine President was
vested with residual power and that this is even greater than that of the
U.S. President. She attributed this distinction to the „unitary and highly
centralized‰ nature of the Philippine government. She noted that, „There
is no counterpart of the several states of the American union which have
reserved powers under the United States constitution.‰ Elaborating on
the constitutional basis for her argument, she wrote:
. . . . The [1935] Philippine [C]onstitution establishes the three
departments of the government in this manner: „The legislative power
shall be vested in a Congress of the Philippines which shall consist of a
Senate and a House of Representatives.‰ „The executive power shall be
vested in a President of the Philippines.‰ The judicial powers shall be
vested in one Supreme Court and in such inferior courts as may be
provided by law. These provisions not only establish a separation of
powers by actual division but also confer plenary legislative, executive,
and judicial powers. For as the Supreme Court of the Philippines pointed
out in Ocampo v. Cabangis, „a grant of legislative power means a grant of
all the legislative power; and a grant of the judicial power means a grant
of all the judicial power which may be exercised under the government.‰
If this is true of the legislative power which is exercised by two chambers

with a combined membership [at that time] of more than 120 and of the
judicial power which is vested in a hierarchy of courts, it can equally if
not more appropriately apply to the executive power which is vested in
one official · the president. He personifies the executive branch. There
is a unity in the executive branch absent from the two other branches of
government. The president is not the chief of many executives. He is the
executive. His direction of the executive branch can be more immediate
and direct than the United States president because he is given
444

Ocampo vs. Enriquez
This immense executive power, however, is not without

limitations. The Constitution provides clear and categorical
limits and any violation of these limits could amount to a
grave abuse of discretion on the part of the President.
The Constitution has as well defined how the President
is to relate to other officials within his own department.
Article VI, Section 17 of the 1987 Constitution provides
that:
SECTION 17. The President shall have control of all the

executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed.
Through jurisprudence, we have recognized that this

provision vests in the President the power of control and
supervision over all the executive
_______________
by express provision of the constitution control over all executive

departments, bureaus and offices.
The esteemed Justice conducted her study against the backdrop of the
1935 Constitution, the framers of which, early on, arrived at a general
opinion in favor of a strong Executive in the Philippines. Since then,
reeling from the aftermath of martial law, our most recent Charter has

restricted the PresidentÊs powers as Commander-in-Chief. The same,

however, cannot be said of the PresidentÊs powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis
into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the
PresidentÊs power to forbid the return of her exiled predecessor. The
rationale for the majorityÊs ruling rested on the PresidentÊs . . . unstated
residual powers which are implied from the grant of executive power and
which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the
avowed intent of the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of specific powers of
the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.
[Underscoring supplied. Italics in the original]
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Ocampo vs. Enriquez
departments, bureaus, and offices.9 The first sentence

pertains to the PresidentÊs power of control, while the
latter, to his power of supervision. His duty to „ensure that
the laws be faithfully executed‰ pertains to his power (and
duty) of supervision over the executive branch, and when
read with Section 4, Article X of the 1987 Constitution,
over local government units.10 Notably, the provision on the
PresidentÊs supervision over autonomous regions follows a
similar language, thus:
SECTION 16. The President shall exercise general supervision

over autonomous regions to ensure that the laws are faithfully
executed.
How laws are to be „faithfully executed‰ provides a

broad standard generally describing the expectations on
how the President is to execute the law. The nature and

extent of the constitutionally-granted presidential powers,
however, negate the concept that this standard can be used
as basis to constitutionally question the manner by which
the President exercises executive power.
To hold otherwise is inconsistent with the plenary
nature of executive power that the Constitution envisions.
The Constitution intends as well a tripartite system of
government where each branch is coequal and supreme in
its own sphere.
These intents could be defeated if the standard of
„faithfulness‰ in executing our laws would be a
constitutional standard measuring the manner of the
PresidentÊs implementation of the laws. In the first place, it
places the Court in the position to pass upon the scope and
parameters of the vague and not-easily determinable
„faithfulness‰ standard. Putting the Court in this position
(especially when considered with the CourtÊs expanded
jurisdiction) amounts to placing it in a higher plane from
where it can dictate how laws should be implemented. In
fact, it is hard to discern how the Court can apply a
standard for the faithful
_______________
9 See De Leon v. Carpio, G.R. No. 85243, October 12, 1989, 178 SCRA
457, Blaquera v. Alcala, G.R. No. 109406, September 11, 1998, 295 SCRA
366.
10 See Pimentel, Jr. v. Aguirre, G.R. No. 132988, July 19, 2000, 336
SCRA 201, Taule v. Santos, G.R. No. 90336, August 12, 1991, 200 SCRA
512.
446

Ocampo vs. Enriquez
execution of the laws, without determining how the law

should be implemented in the first place.

Additionally, characterizing the failure to ensure faithful

execution of the laws as a constitutional violation can prove
to be an unreasonably restricting interpretation. It could
possibly paralyze executive discretion, and expose the
Executive to constant lawsuits based on acts of grave abuse
of discretion he or she allegedly committed.
Thus, the duty to „ensure that laws are faithfully
executed‰ should not be read as the constitutional standard
to test the legality of the PresidentÊs acts so that a legal error
in the implementation of a law becomes a constitutional
violation of his faithful execution duty.
Incidentally, the interpretation that the faithful
execution clause refers to the PresidentÊs power of control
and supervision is in line with US jurisprudence
interpreting the „take care‰ clause of the United States
Constitution, which · as everyone knows · served as the
1935 Philippine ConstitutionÊs model from which our later
constitutions have not departed. Article II, Section 3 of the
United States Constitution provides:
Section 3. He shall from time to time give to the Congress

Information of the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and
expedient; he may, on extraordinary Occasions, convene both
Houses, or either of them, and in Case of Disagreement between
them, with Respect to the Time of Adjournment, he may adjourn
them to such Time as he shall think proper; he shall receive
Ambassadors and other public Ministers; he shall take care that
the Laws be faithfully executed, and shall Commission all the
Officers of the United States.
In the United States, the take care clause has generally

been accepted as imposing a constitutional duty on the
President not to suspend or refuse the enforcement of laws,
particularly of statutes.11
_______________
11 See Garvey, Todd, The Take Care Clause and Executive Discretion
in the Enforcement of Law, September 4, 2014, available at
<https://www.fas.org/sgp/crs/misc/R43708.pdf>.

447
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In Kendall v. United States ex rel. Stokes,12 for instance,

the US Supreme Court characterized a provision requiring
the Postmaster General to provide backpay to mail courier
providers as a ministerial duty that the President had no
authority to prevent. The US Court arrived at this ruling in
Kendall using the take care clause as basis to prevent the
President from stopping the implementation of a
ministerial duty that Congress imposed.
On the flipside, the take care clause has likewise been
used to invalidate laws that rob the President of his powers
of control and supervision over the Executive. In Buckley v.
Valeo,13 for instance, the US Court held that the Congress
cannot arrogate unto itself the power to appoint officials to
an independent commission that exercises executive
powers. The reason for this ruling is the PresidentÊs duty to
ensure that the laws are faithfully executed.
While the two functions of the take care clause in US
jurisprudence could at times seem to conflict with each
other (one imposes a duty on the President, the other
recognizes his authority)14 it has never been used to
question the manner by which the PresidentÊs executive
power is exercised.
Notably, the PresidentÊs duty to implement laws under
the take care clause is judicially enforceable only where the
statute in question provides a clear and categorical
directive to the President. Where a statute leaves to the
executive the details of its implementation, the latter
should be given sufficient leeway in exercising its duty.
In sum, the petitionersÊ insistence that the burial orderÊs
violation of various laws amounts to a constitutional
violation involving the faithful execution clause, rests on a
very tenuous interpretation of this clause that stretches it
to its breaking point. The faithful execution clause does not
allow litigants to question · as a constitutional violation

· the manner by which the President implements a law.

The Court, for its part, has no authority to directly resolve
the alleged statutory violations that, in this case, allegedly
attended the burial order.
_______________
12 37 U.S. 524 (1838).

13 424 U.S. 1 (1970).
14 Supra note 6.
448

Ocampo vs. Enriquez
The burial order does not violate

international law obligations.
The petitionersÊ international law arguments, in my

view, likewise fail to establish the unconstitutionality of the
PresidentÊs burial order.
The petitioners argue that the burial order violates
several international law obligations, based on the
PhilippinesÊ status as a signatory to the Universal
Declaration of Human Rights (UDHR), the International
Covenant for Civil and Political Rights (ICCPR), the Rome
Statute, and Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT).
While I agree that these international agreements
(except for the UDHR, which is a nonbinding document
with provisions attaining the status of customary
international law) had been ratified by the Philippine
government and hence have the force and effect of law in
the Philippines, the petitioners failed to point to any
specific treaty obligation prohibiting MarcosÊ burial at the
LNMB or at any other public cemetery.
These treaties prohibit torture or cruel, inhuman or
degrading treatment or punishment,15 and recognize these

acts as crimes against humanity16 falling within the

jurisdiction of the International Criminal Court.17 State
parties to CAT are likewise obliged to criminalize torture
and take effective legislative, administrative, judicial, and
other measures to prevent torture.18 Parties also have the
obligation to investigate claims of torture19 and ensure that
torture victims have an enforceable right to fair and
adequate compensation.20
_______________
15 Article 7 of the ICCPR provides:

Article 7. No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular, no one shall be
subjected without his free consent to medical or scientific
experimentation.
16 Article 7, Section 1(g) of the Rome Statute.
17 Article 5, Section 1(b) of the Rome Statute.
18 Article 2, CAT.
19 Articles 12 and 13, CAT.
20 Article 14, CAT.
449
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Ocampo vs. Enriquez
Article 14 of the CAT, in particular, requires state

parties to „ensure in its legal system that the victim of an
act of torture obtains redress and has an enforceable right
to fair and adequate compensation, including the means for
as full rehabilitation as possible. In the event of the death
of the victim as a result of an act of torture, his dependents
shall be entitled to compensation.‰
The petitioners assert that the burial order amounts to a
state-sanctioned narrative that violates the PhilippinesÊ
duty to provide a „full and effective reparation‰ for human
rights violations victims. The petitioners cite as legal bases
Principle 22 and Principle 23 of the Basic Principles and

Guidelines on the right to a remedy; Reparation for Victims

of Gross Violations of International Human Rights Law
(IHRL); Serious Violations of International Humanitarian
Law (IHL); and Principle 2 and Principle 3 of the Updated
Set of Principles for the Protection and Promotion of
Human Rights Through Action to Combat Impunity.
These principles, however, do not create legally binding
obligations. They are not international agreements that
states accede to and ratify, as states have not agreed to
formally be bound by them. Declarations, principles, plans
of action and guidelines are considered „soft law‰ because
they do not bind states, although they may carry
considerable political and legal weight. They are considered
statements of moral and political intent that, at most, may
subsequently ripen into international norms.21
Paragraph 7 of the Preamble of The Basic Principles and
Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights
Law (IHRL), for instance, does not create new
international or domestic legal obligations, viz.:

herein do not entail new international or domestic legal
obligations but identify mechanisms, modalities, procedures and
_______________
21 See The International Council on Human Rights Policy, Human

Rights Standards: Learning from Experience, pp. 11, 14-18 (2006),
available at <http://www.ichrp.org/files/reports/31/120b_report_en.pdf>
450

Ocampo vs. Enriquez
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.

That these principles do not create obligation legally

binding on the State means that they cannot be interpreted
as constraints on the discretion of the President who acts,
not only as the governmentÊs chief executive, but as its
chief architect in foreign affairs.
Without any specific and legally binding prohibition
limiting the PresidentÊs actions, no basis exists to nullify
his order and to disregard the presumption of regularity
that exists in the performance of his duties.
Lastly, it must be considered that the burial order does
not have the effect of rewriting jurisprudence and excusing
the ills of the Marcos administration; neither does it amend
Republic Act No. 10368 („Human Rights Victims
Reparation and Recognition Act of 2013‰), a law that had
been enacted as part of the PhilippinesÊ compliance with its
obligations in the ICCPR and CAT.
RA 10368, among others, creates a Human Rights
Victims Claims Board tasked to recognize victims of human
rights violations and to recommend their claims for
reparation. RA 10368 even recognizes the „heroism and
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 February
25, 1986.‰ The law makes it a policy to „restore the victimsÊ
honor and dignity‰ and acknowledge the StateÊs 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.
These terms and provisions, however, while critical of
the Marcos regime hardly amount to a prohibition barring
the interment of his remains in a resting place duly
reserved by law for soldiers; former President Marcos
indisputably was a soldier during his lifetime and was one
long before the human rights violations attributed to him
took place. To deny him now, despite the law entitling him
to a LNMB resting place, may only lay the petitioners to
the charge that they are now doing to

451
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Ocampo vs. Enriquez
another what they have accused former President Marcos

of doing · denying another of the rule of law.
Divining the spirit of the Constitution

is acceptable only to clarify ambigui-
ties in its provisions, and not to create
entirely new provisions.
a. The Spirit of the 1987 Constitution

The petitioners further argue that MarcosÊ interment at
the LNMB violates the spirit of the 1987 Constitution
which was crafted as a reaction to the abuses during the
Marcos regime. Limitations and restrictions to the
PresidentÊs power, in particular, had been introduced
because of former President MarcosÊ abuses during his
regime. Thus, to inter him at the LNMB would amount to a
violation of the reasons underlying the Constitution.
In particular, the petitioners assert that former
President MarcosÊ burial at the LNMB violates two other
principles enshrined in the 1987 Constitution: first, it
violates Section 27, Article II of the Constitution as the
burial of a dishonest and disgraced public official will not
promote honesty and integrity in public service; second, it
violates Section 1, Article XI of the Constitution22 because
it goes against the precept that corruption is never
forgotten.
Constitutional provisions, read by themselves for the
principles and precepts they embody, hardly reveal the
clear intents that drove the constitutional framers to
incorporate these provisions in the Constitution. These
intents, however, are neither lost nor hidden as they can be
gleaned from the deliberations of the Constitutional
Commission which drafted the Constitution.
In this Court, we use and have used these deliberations
as guides to interpret the Constitution when there exist

ambiguous or seemingly conflicting provisions crucial to

the resolution of a case. We look to these
_______________
22 „Public office is a public trust. x x x‰
452

Ocampo vs. Enriquez
deliberations to find the intent behind the constitutional

provisions to clarify how they should be applied.
While constitutional intent serves as a valuable guide in
undertaking our adjudicatory duties, it does not embody a
right and, by itself, is not a basis for the enforcement of a
right. Neither does it provide a standard on how the
President should act and enforce the laws, without prior
reference to specific provisions or legislations applying the
intent of the Constitution.
In the context of the present petitions, without any
specific provision alleged to have been violated by the
burial order, the constitutional intents that the petitioners
brought to light cannot be used as a measure to resolve the
issues that bedevil us in these cases. Specifically, they
cannot be used as basis to determine the existence of grave
abuse of discretion under the CourtÊs expanded jurisdiction.
As we have done by long established practice, we rely on
intent only to settle ambiguities that cross our paths in the
course of reading and considering constitutional provisions.
To go to the concrete and the specific demands of the
issues at hand, we cannot use the faithful execution clause
as basis to question the manner by which the Executive
implements a law.
Neither can we interpret Article II, Section 27 and
Article XI, Section 1 to prohibit former President MarcosÊ
interment at the LNMB. To be sure, these are provisions
that cannot be faulted as they enshrine honesty, integrity,

and accountability in the public service, and require

government officials to exercise their functions „with
utmost responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.‰
Despite their high minded terms, however, these
provisions can hardly be claimed as basis, in the absence of
clear and concrete legislation embodying actionable
standards, for the petitionersÊ claims; these provisions can
only describe our aspirations for our government and
government officials, and could not have been meant to
dilute the PresidentÊs prerogatives in making his political
moves, among them, his decision on the interment of a
previously deposed president.
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It should be noted, too, that Article II, Section 27 does

not appear to be a self-executing provision. Its location, i.e.,
under Article II, Declaration of State Principles, strongly
hints of its non-self-executing23 nature. The language itself
of the provision obligates the State to „take positive and
effective measures against graft and corruption.‰ Under
these terms and circumstances, this provision merely
reflects a statement of an ideal that cannot be realized
independently of a concrete congressional enactment. Its
goal of maintaining honesty and integrity in the public
service cannot likewise be implemented without laws
defining and promoting these values.
No Express Constitutional

b.
Bar to Interment
The Constitution was undeniably forged out of the ashes

of the Marcos regime. Its enactment after the Marcos
regime collapsed, however, does not suggest and cannot be
translated into an implied command preventing his burial
at the LNMB or in a shrine of national significance. Had

such prohibition been the intent, the ConstitutionÊs transi-
_______________
23 In Manila Prince Hotel v. Government Service Insurance System,

G.R. No. 122156, February 3, 1997, 267 SCRA 408, 431, the Court has
distinguished between self-executing and non-self-executing provisions of
the Constitution, viz.:
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and
carry out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of
citizens. A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing.
But a provision which is complete in itself and becomes operative without
the aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and the liability
imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is
no language indicating that the subject is referred to the legislature for
action.
454

Ocampo vs. Enriquez
tory provisions would have specifically so provided in the

manner these provisions incorporated terms that the
framers wanted to implement within intended and
foreseeable time frames.24
Historical Perspectives
c.
Unfortunately, both in the pleadings and in the media,

the Court majority has been accused of being quick to

forget the lessons of the Martial Law Era. I see no point in

directly answering this charge as this Opinion has not been
written to consider historical perspectives except to the
extent that they bear on the immediate business an
concern of the Court · the interpretation and application
of the Constitution.
The Court, of course, is not blind to history but is not a
judge of history; it is a judge of the interpretation and
application of the terms of the Constitution.25 When the
time comes therefore when we are tested by push and pull
of history and those of the Constitution, an answer is not
difficult to make even if we are dealing with an exceptional
historical figure.
The clear and simple response is that concerns raised by
the Constitution must first be addressed; historical
considerations follow unless the constitutional concern is so
affected or intertwined with history that we cannot
consider one without the other. Fortunately for us in the
present case, no such consideration requires to be taken as
the way is clear: we rule based on the standards of our
Constitution.
Based on these considerations, I believe we should not
be charged with being blind to the lessons of the past, in
particular of what transpired during the martial law era.
Rather than being blind, we simply do not look first to
history in resolving disputes before us; we look to the law
as our primary guide and consideration.
_______________
24 The transitory provisions, for example, specifically laid down the

rule that after the expiration of the Military Bases Agreement, military
bases, troops and facilities shall not be introduced into the Philippines
except through a treaty concurred in by the Senate.
25 Gudani v. Senga, G.R. No. 170165, August 15, 2006, 498 SCRA
671.
455
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Ocampo vs. Enriquez
Thus, if we do rule in favor of the burial of former

President Marcos at the LNMB, we do not thereby dishonor
those who believe they suffered under his regime. Nor are
we unmindful of the laws crafted in their favor; we
considered these laws but they are simply not the laws
primarily relevant and applicable to the issue before us ·
the interment of former President Marcos at the LNMB.
Considerations of Policy
d.
I do know as a matter of law and history that the

framers of our Constitution crafted it with the intent of
preventing another tyrant from rising to power and from
consolidating the StateÊs might for himself. A stronger
tripartite government with a system of checks and balances
became the cornerstone of our new democracy. Under this
system, each of the three branches of government performs
specific, distinct, and clearly delineated functions. The
intent is to prevent one branch from encroaching on the
prerogatives of another and to characterize any usurpation
as an act of tyranny. These constitutional principles are the
policies that receive primary consideration from us as a
Court.
The Constitution vested the Supreme Court with
judicial power the power and duty 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. Considering that
Justices of this Court are not elected by the sovereign
people, the framers did not see it fit to give us dominion
over matters of policy.
From these perspectives, this Court is clearly not a court
of public opinion; we are court of law. With respect to
matters of policy, we have no right to substitute our
wisdom over that of duly elected political branches. They
carry the mandate of the popular will · we do not.
Under the impetus of these constitutional realities, the
wisdom of or need for the interment of former President

Marcos at the LNMB is
456

Ocampo vs. Enriquez
a political question26 that our President decided after an

assessment of the thoughts and sentiments of the people
from all the regions in our country; it is a policy
determination that is outside the CourtÊs jurisdiction to
pass upon or interfere with as a matter of law.
Separately from our consideration of the Executive and
its policy, we are also aware that strong sentiments exist
against the burial of former President Marcos at the
LNMB. We hear the loud and strident voices that proclaim
these sentiments. But we are likewise aware that against
the pull by those who voice these sentiments are
counterforces pulling into other directions, specifically, the
pull of the law and those of policy.
As I have already indicated, I again say that the law
must prevail under the unwavering standard we observe.
But we recognize at the same time that policy has its own
demands. Ultimately, we recognize that vowing to the
raucous crowd may temporarily signify harmony, but we do
so at the expense of disregarding Executive policy and
weakening the political branches, and indeed, the very
institution of government itself.
Thus, we have no choice if we are to truly serve as
guardians of the Constitution. In the absence of any
countervailing legal considerations, we give primacy to the
ExecutiveÊs policy as this is the law · the constitutional
separation of power · that we have to fully respect.
As my last point, that the burial of Marcos had been a
campaign promise strengthens the nature of former
President MarcosÊ burial at the LNMB as a political
question. Voters knew of his plan to bury Marcos at the
LNMB at the time he campaigned, and might have voted
for him because or regardless of this plan. President
DuterteÊs victory in the polls signifies, at the very least, the

electorateÊs tolerance of his decision and, at most, the

electorateÊs support.
_______________
26 A political question refers to „those questions which, under the

Constitution, are to be decided by the people in their sovereign capacity,
or in regard to which full discretionary authority has been delegated to
the Legislature or executive branch of the Government. It is concerned
with issues dependent upon the wisdom, not legality, of a particular
measure.‰ Tañada v. Cuenco, No. L-10520, February 28, 1957, 103 Phil.
1051.
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In sum and without hesitation, we must now recognize

that the petitioners have failed to establish any clear
constitutional breach attendant to the PresidentÊs burial
order. We must therefore respect and abide by the
ExecutiveÊs decision to allow the interment of former
President Marcos at the LNMB.
WHEREFORE, I vote to DISMISS the petitions, and to
lift the status quo ante order this Court issued to avoid
rendering the petitions moot and academic prior to our
decision.
CONCURRING OPINION
BERSAMIN, J.:
These consolidated special civil actions (variously

seeking the writs of certiorari, mandamus and prohibition)1
concern the question of whether or not the Chief Executive,
in verbally authorizing the interment of the remains of the
late President Ferdinand E. Marcos in the Libingan ng
mga Bayani (LNMB), gravely abused his discretion.

I CONCUR with the MAIN OPINION so eruditely

penned for the Majority by Justice Diosdado M. Peralta. I
hereby only express my reasons for voting to dismiss the
petitions, and thus to allow the interment to proceed.
President Rodrigo Roa Duterte was sworn to office and
assumed the Presidency at noontime of June 30, 2016. In
his campaign for the Presidency, he had promised, among
others, that if elected he would authorize the interment of
the remains of the late President Marcos in the LNMB. To
deliver on this promise, he verbally directed Secretary
Delfin N. Lorenzana of the Department of National
Defense (DND) on July 11, 2016 to prepare the groundwork
for the interment. Secretary Lorenzana thus issued on
August 7, 2016 the assailed Memorandum directing
General Ricardo R. Visaya, Chief of Staff of the Armed
Forces of the Philip-
_______________
1 G.R. No. 225973, G.R. No. 226117, and G.R. No. 226120 are
petitions for certiorari and prohibition; G.R. No. 225984 and G.R. No.
226097 are petitions for prohibition; and G.R. No. 226116 prays for the
issuance of the writs of mandamus and prohibition.
458

Ocampo vs. Enriquez
pines (AFP), to „kindly undertake the necessary planning

and preparations to facilitate the coordination of all
agencies concerned specially the provisions for ceremonial
and security requirements‰ for the interment, and to
„[c]oordinate closely with the Marcos family regarding the
date of interment and the transport of the late former
PresidentÊs remains from Ilocos Norte to the LNMB.‰ In
turn, General Visaya commanded Deputy Chief of Staff of
the AFP Rear Admiral Ernesto C. Enriquez to implement
the Memorandum, and this Rear Admiral Enriquez did by

transmitting on August 9, 2016 his own directive to the

Commanding General of the Philippine Army to proceed
with the interment and to provide „all necessary military
honors accorded for a President.‰
These events expectedly invited protests from various
sectors. The petitioners herein then initiated these
consolidated special civil actions in this Court to advance a
common cause · to prevent the interment of the remains
of President Marcos in LNMB because of the many human
rights violations committed during his long regime that
included the period when he placed the whole country
under Martial Law. They mainly insisted that interring the
remains of President Marcos in the LNMB would desecrate
the shrine that was intended only for heroes.
The following should explain my vote.
First of all, 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 character of the LNMB as the resting place
for the war dead and other military personnel under the
care and control of the AFP has placed the LNMB under
the control of the President. Plainly enough, the President
thereby exercised such control through the AFP Chief of
Staff.
In the context of the LNMB being a military facility, the
AFP has issued AFP Regulations G 161-375 to prescribe
guidelines that enumerate the persons whose remains may
be interred therein, to wit:

459
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active draftees and trainees who died in the line of duty,
active reservists and CAFGU Active Auxiliary (CAA) who
died in combat operations or combat related activities;
g. Former members of the AFP who laterally entered or joined
the Philippine Coast Guard (PCG) and the Philippine
National Police (PNP);
h. Veterans of Philippine Revolution of 1890, WWI, WWII, and
recognized guerillas;
i. Government Dignitaries, Statesmen, National Artists and
other deceased persons whose interment or reinternment has
been approved by the Commander-in-Chief, Congress or the
Secretary of National Defense;
Secretaries of National Defense and Chief of Staff are
authorized to be interred at the LNMB.
Based on the foregoing, the exercise by President

Duterte of his discretion upon a matter under his control
like the interment of the remains of President Marcos in
the LNMB is beyond review by the Court. He has not
thereby transgressed any legal boundaries. President
Marcos · being a former President of the Philippines, a
Medal of Valor awardee, a veteran of World War II, a
former Senator and Senate President, and a former
Congressman · is one of those whose remains are entitled
to be interred in the LNMB under the terms of AFP
Regulations G 161-375. President Duterte was far from
whimsical or arbitrary in his exercise of discretion. I
believe that interment of any remains in the LNMB is a
political question within the exclusive domain of the Chief
Executive. The Court must defer to his wisdom and must
respect his exercise of discretion. In other words, his
directive to Secretary Lorenzana is unassailable.
I must observe that the factual milieu in these cases is
different from that in the case in which the Court
addressed and decided the question of whether or not the
President of the Philippines had validly acted in

460

Ocampo vs. Enriquez
prohibiting the return of the family of President Marcos to

the country. In the latter case, the Court ruled that when
political questions were involved, the Constitution limited
the determination to whether or not grave abuse of
respondent public official.2 The foremost consideration then
was that the return of the Marcoses could dangerously
impact on the nationÊs peace and security. That impact is
not imminent today.
Secondly, the several laws the petitioner have invoked to
prevent the interment are not relevant to the LNMB. The
main opinion fully explains why this is so. I agree.
For instance, Republic Act No. 289, which all the
petitioners except the petitioners in G.R. No. 226120 rely
upon, stipulated the establishment of the National
Pantheon as the final resting place for former Presidents of
the Philippines, national heroes and patriots to perpetuate
their memory as sources of inspiration and emulation for
the future generations. On the basis of this law, the
petitioners concerned quickly assert that the remains of the
late President Marcos do not deserve to be interred in the
LNMB because his gross human rights violations, massive
corruption and plunder of the government coffers, and
other abuses during his regime rendered his memory
unworthy of perpetuation and because he could not be a
source of inspiration and emulation for future generations.
Yet, the Solicitor General has clarified that the LNMB is
not the National Pantheon referred to by Republic Act No.
289. Indeed, Proclamation No. 431 (Reserving as Site for
the Construction of the National Pantheon a Certain Parcel
of Land Situated in Quezon City) would locate the National
Pantheon in East Avenue, Quezon City, but the
establishment of the National Pantheon was later on
discontinued. In contrast, the LNMB is the former Republic
Memorial Cemetery as expressly provided in Executive
Order No. 77 (Transferring the Remains of War Dead

Interred at Bataan Memorial Cemetery, Bataan Province

and at the Other Places in the Philippines to the Republic
Memorial Cemetery at Port WM McKinley, Rizal Province).
The Republic Memorial Cemetery was reserved as the final
resting place for the war dead of World War II, but
President Magsaysay renamed it to LNMB on Octo-
_______________
2 Marcos v. Manglapus, G.R. No. 88211, September 15, 1989, 177

SCRA 668, 696.
461
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Ocampo vs. Enriquez
ber 27, 1954. The history of the LNMB refutes the

petitionersÊ reliance on Republic Act No. 289. Verily, the
LNMB is not the same as the National Pantheon.
Republic Act No. 10368 has also been cited by the
petitioners. This law recognizes the victims of Martial Law
and makes reparations for their sufferings by
appropriating P10,000,000,000.00 as compensation for
them. How such law impacts on the interment of the
remains of President Marcos has not been persuasively
shown.
The petitioners have not laid out any legal foundation
for directly testing the issuance of the challenged executive
issuances. They have not cited any specific provision of
either the Constitution or other existing laws that would
expressly prohibit the interment in the LNMB of the
remains of one like President Marcos.
And, thirdly, AFP Regulations G 161-375 lists those who
are disqualified to have their remains interred in the
LNMB, to wit:
a. Personnel who were dishonorably

separated/reverted/discharged from the service.

b. Authorized personnel who were convicted by final judgment of

an offense involving moral turpitude.
None of the disqualifications can apply to the late

President Marcos. He had not been dishonorably separated
or discharged from military service, or convicted by final
judgment of any offense involving moral turpitude. The
contention that he had been ousted from the Presidency by
the 1986 People Power revolution was not the same as
being dishonorably discharged because the discharge must
be from the military service. In contrast, and at the risk of
being redundant, I remind that he had been a two-term
President of the Philippines, a Medal of Valor awardee, a
veteran of World War II, a former Senator and Senate
President, and a former Congressman, by any of which he
was qualified to have his remains be interred in the LNMB.
462

Ocampo vs. Enriquez
SEPARATE OPINION
PEREZ, J.:
The factual and procedural antecedents are not in

dispute.
On 25 February 1986, during the snap election term of
Ferdinand Marcos, Sr., the EDSA People Power Revolution
transpired. With US aid, the Former President, together
with his family, was forced into exile. On 28 September
1989, he died in Honolulu, Hawaii. Two weeks before his
death, the Supreme Court upheld then sitting President
Corazon AquinoÊs firm decision to bar the return of the
Marcos family.1 In a statement, President Aquino said:
„In the interest of the safety of those who will take the death of

Mr. Marcos in widely and passionately conflicting ways, and for the
tranquility of the state and order of society, the remains of
Ferdinand E. Marcos will not be allowed to be brought to our
country until such time as the government, be it under this
administration or the succeeding one, shall otherwise decide.‰2
Pursuant to a written agreement executed between the

Philippine Government, then represented by Former
President Fidel V. Ramos, and the Marcos family, the
remains of the late strongman was returned to the
Philippines on 5 September 1993. The mortal remains of
Former President Marcos was allowed to be returned to the
Philippines, under the following conditions:
1. The body of President Marcos would be flown straight from

Hawaii to Ilocos Norte province without any fanfare;3
2. President Marcos would be given honors befitting a major, his
last rank in the AFP;4 and
3. The body of President Marcos will be buried in Ilocos.5
_______________
1 Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA

760.
2 Id.
3 Alvarez Petition, p. 10.
4 Id.
463
VOL. 807, NOVEMBER 8, 2016 463

Ocampo vs. Enriquez
The Former President was eventually interred in a

Mausoleum, with his remains currently kept in a
refrigerated crypt in Batac, Ilocos Norte.
During his campaign for president in the 2016 national
elections, candidate Rodrigo R. Duterte publicly declared

that he will cause the burial of the former President in the

Libingan ng mga Bayani (LNMB). After his election as
president, President Rodrigo R. Duterte ordered the
implementation of his campaign declaration. On 11 July
2016, President Duterte verbally directed MarcosÊ burial in
the LNMB. In compliance with the verbal order, Secretary
of National Defense Delfin N. Lorenzana issued a
Memorandum dated 7 August 2016, addressed to General
Ricardo R. Visaya, Chief of Staff of the AFP, directing him
to „undertake the necessary planning and preparations to
facilitate the coordination of all agencies concerned
specially the provisions for ceremonial and security
requirements‰6 and to „coordinate closely with the Marcos
family regarding the date of interment and the transport of
the late former PresidentÊs remains from Ilocos Norte to the
LNMB.‰7 Conforming to the 7 August 2016 Memorandum,
AFP Chief of Staff General Visaya instructed Deputy Chief
of Staff for Reservist and Retiree Affairs Rear Admiral
Ernesto C. Enriquez to issue a directive addressed to the
Philippine Army.8 According to the 9 August 2016
Directive, the Army is required to provide vigil,
bugler/drummer, firing party, military host/
pallbearers, escort and transportation, and arrival and
departure honors.9
Five different petitions, praying for a Temporary
Restraining Order to restrain respondents from proceeding
with the burial were filed and consolidated. Petitioners
likewise sought the nullification of the 7 August 2016
Memorandum and the 9 August 2016 Directive, and a
permanent prohibition from allowing the interment of the
remains of Former President Marcos at the Libingan ng
mga Bayani.
_______________
5 Ocampo Petition, p. 6.
6 Memorandum issued by Secretary of National Defense Delfin N.
Lorenzana dated 7 August 2016.
7 Id.
9 Id.

464

Ocampo vs. Enriquez
The first petition (Ocampo petition) was filed on 15

August 2016 by Saturnino C. Ocampo, Trinidad G. Repuno,
Bienvenido Lumbera, Bonifacio P. Ilagan, Neri Javier
Colmenares, Maria Carolina P. Araullo, all of whom alleged
that they were human rights violations victims and
members of the class suit in the human rights litigation
against the Estate of Ferdinand Marcos in MDL No. 840,
CA No. 88-0390 in the US Federal District Court of
Honolulu, Hawaii. The Samahan ng Ex-Detainees Laban sa
Detensyon at Aresto (SELDA), an organization of political
prisoners and former political detainees in the country, also
took part in the petition.
The second petition (Lagman petition) was also filed on
15 August 2016 by Rep. Edcel C. Lagman, Rep. Teddy
Brawner Baguilat, Jr., Rep. Tomasito S. Villarin, Rep.
Edgar R. Erice, Rep. Emmanuel A. Billones, and the
Families of Victims of Involuntary Disappearance (FIND).
The incumbent members of the House of Representatives
sued as legislators with duties including the protection of
appropriated funds from being misused for void, illegal and
improvident activities.
The third petition (Rosales petition) was filed on 19
August 2016 by the former chairperson of the Commission
on Human Rights, Loretta Ann Paragas-Rosales; Hilda B.
Narciso; Aida F. Santos-Maranan; Jo-Ann Q. Maglipon;
Zenaida S. Mique; Fe B. Mangahas; Ma. Cristina P.
Bawagan; Mila D. Aguilar; Minerva G. Gonzales; Ma.
Cristina V. Rodriguez; Francisco E. Rodrigo, Jr.; Louie G.
Crismo; Abdulmari De Leon Imao, Jr.; and Liwayway D.
Arce. All the petitioners sued as victims of allegedly State-
sanctioned human rights violations during Martial Law.
The fourth petition (Alvarez petition) was filed on 22
August 2016 by Former Senator Heherson T. Alvarez; Joel
C. Lamangan, a martial law victim; Francis X. Manglapus;
Edilberto C. De Jesus; Belinda O. Cunanan; Cecilia G.

Alvarez; Rex De Garcia Lores; Arnold Marie Noel Sr.;

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.; Julia Kristina P. Legasto, all of whom came to
court Filipino citizens and taxpayers.
465
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Ocampo vs. Enriquez
The fifth petition (Baniaga petition) was filed on 22

August 2016 by Zaira Patricia B. Baniaga, John Arvin
Buenaagua, Joanne Rose Sace Lim, and Juan Antonio, also
as Filipino citizens and taxpayers.
The Respondents are Honorable Salvador C. Medialdea,
in his capacity as the Executive Secretary of the Republic
of the Philippines; Honorable Delfin N. Lorenzana, in his
capacity as the Secretary of the Department of National
Defense; General Ricardo R. Visaya, in his capacity as
Chief of Staff of the Armed Forces of the Philippines; Rear
Admiral Ernesto C. Enriquez, in his capacity as Deputy
Chief of Staff for Reservist and Retiree Affairs of the
Armed Forces of the Philippines; Lt. Gen. Ernesto G.
Carolina (Ret.), in his capacity as Administrator of the
Philippine Veterans Affairs Office (PVAO); and the heirs of
Marcos.
All the contentions espoused by the five petitions pivot
around the alleged grave abuse of discretion committed by
public respondents when they allowed the burial of the
remains of the Former President Marcos at the Libingan
ng mga Bayani.
All the petitioners argue that the Memorandum and
Directive for the burial mock and are in contravention of
Republic Act No. 289 (An Act Providing for the
Construction of a National Pantheon for Presidents of the
Philippines, National Heroes and Patriots of the Country),
which petitioners argue created the Libingan ng mga
Bayani. They cite Section 1 of the statute that the purpose

of the construction of the National Pantheon is „to

perpetuate the memory of all presidents of the Philippines,
national heroes and patriots for the inspiration and
emulation of this generation and of generations still
unborn.‰10 The petitioners contend that the Former
PresidentÊs transgressions against the Filipino people
hardly make him an inspiration and do not make him
worthy of emulation by this generation and the next.11 The
petitioners further aver that the public respondents had no
authority to allow the burial, considering that only
members of the Board of the National Pantheon may cause
to be interred therein the mortal remains of all presidents,
na-
_______________
10 Section 1 of R.A. No. 289 (AN ACT PROVIDING FOR THE CONSTRUCTION
OF A NATIONAL PANTHEON FOR PRESIDENTS OF THE PHILIPPINES, NATIONAL
HEROES AND PATRIOTS OF THE COUNTRY).
11 Lagman Petition, p. 12; Alvarez Petition, p. 31.
466

Ocampo vs. Enriquez
tional heroes, and patriots.12 The Board is composed of the

Secretary of Interior, Secretary of Public Works and
Communications, and the Secretary of Education, and two
private citizens to be appointed by the President of the
Philippines with the consent of the Commission on
Appointments.13
Petitioners who took part in the Ocampo, Lagman and
Rosales petitions maintain that the Memorandum and the
Directive are inconsistent with Republic Act No. 10368
(Human Rights Victims Reparation and Recognition Act of
2013), a law which serves as an indubitable validation by
the Legislative and Executive departments of the
widespread human rights violations attributable to the late

President Marcos under his martial law regime.14 In their

petitions, great weight is attributed to Section 2 of the law,
which reads:
„x x x [I]t is hereby declared the policy of the State to recognize the

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 February 25, 1986 and restore the victimsÊ
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,
regime.‰15
Thus, for petitioners, allowing the burial is inconsistent

with the declared policy of the State. The Lagman Petition
in particular, espouses the view that R.A. No. 10368
amended the burial requirements and entitlements issued
by the Armed Forces of the Philippines respecting the
Libingan ng mga Bayani by excluding the Former
President from being interred therein.16 Similarly, those
who took part in the Ocampo and the Lagman petitions
assert that a heroÊs burial at the Libingan ng
_______________
12 Baniaga Petition, p. 10.

13 Sec. 2, R.A. No. 289.
14 Lagman Petition, p. 15.
15 Sec. 2 R.A. No. 10368.
16 Lagman Petition, p. 16.
467
VOL. 807, NOVEMBER 8, 2016 467

Ocampo vs. Enriquez

mga Bayani for the Former President is contrary to public

policy, premised on the fact that he committed crimes
involving moral turpitude against the Filipino People.17
The Ocampo, Rosales, and Alvarez petitions attack the
constitutionality of the Memorandum and Directive.
Petitioners therein contend that a burial at the Libingan
ng mga Bayani will amount to a denial of the history of
authoritarian rule and a condonation of the abuses
committed by the Marcos Regime.18 For those who took
part in the Rosales petition, burying the Former President
at the Libingan ng mga Bayani, a place supposedly for
heroes and patriots, is to desecrate the raison dÊêtre of the
1987 Constitution.19 That the burial of the Former
President at the Libingan ng Bayan runs counter to
judicial pronouncements is another argument raised in the
Rosales and the Lagman petitions. In support of such
argument, judicial decisions of the Philippine Supreme
Court, as well as foreign courts, which established the
culpability of Former President Marcos for human rights
atrocities and plunder were cited.20
The Baniaga and the Alvarez petitions advance a related
argument, with petitioners therein maintaining that the
Memorandum and Directive are violative of the Faithful
Execution Clause of the 1987 Constitution.21 Citing Article
VII, Section 17 of the Constitution, petitioners argue that
President Duterte, acting through his alter ego, respondent
Sec. Lorenzana, would not be faithfully executing R.A. No.
10368 and R.A. No. 289 by burying Former President
Marcos in the Libingan ng mga Bayani.22 The Baniaga
petition likewise argues that the Memorandum and
Directive violate the equal protection guaranteed by the
Constitution,23 given that the Former President is in a
different class from the other Presidents already buried in
the Libingan ng mga Bayani.
_______________
17 Ocampo Petition, p. 21, Lagman Petition, p. 12.

19 Id., at p. 29.
20 Lagman Petition, p. 17; Rosales Petition, pp. 37-44.
21 Baniaga Petition, p. 14.

22 Id., at p. 14; Alvarez Petition, p. 11.

23 Id., at p. 13.
468

Ocampo vs. Enriquez
Tackling the issue from a broader perspective, the

parties who took part in the Rosales petition maintain that
a burial at the Libingan ng mga Bayani violates the
international duties of the Philippines to combat impunity
and to guarantee non-repetition of violations of
international human rights law.24 Petitioners insist that
allowing the burial could potentially hinder and violate
human rights victimsÊ remedies and could lead to a
distortion of the findings of previous authorities thus,
creating an injustice to the victims rightly afforded a
remedy from the Former PresidentÊs actions.25 For the
petitioners, such injustice would put the Philippines in
violation of the International Covenant on Civil and
Political Rights, specifically Section 2 thereof, viz.:

notwithstanding that the violation has been omitted by
persons acting in an official capacity;
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;
At the core of all the controversy is AFP Regulation G

161-373: Allocation of Cemetery Plots at the LNMB, as
amended by AFP Regulation G 161-375. The regulation
was issued on 9 April 1986 by then AFP Chief of Staff Fidel
V. Ramos and then President Corazon Aquino. The said

Regulation provides that the following deceased persons
are qualified to be interred in the Libingan ng mga Bayani:
1. Medal of Valor awardees;

2. Presidents or commanders-in-chief AFP;
3. Secretaries of National Defense;
_______________

25 Id., at p. 62.
469
VOL. 807, NOVEMBER 8, 2016 469

Ocampo vs. Enriquez
4. Chiefs of staff, AFP;

5. Generals/flag officers of the AFP;
6. Active and retired military personnel of the AFP;
7. Former AFP members who laterally entered/joined the
Philippine National Police and the Philippine Coast Guard;
8. Veterans of Philippine Revolution of 1896, World War I, World
War II and recognized guerillas;
9. Government dignitaries, statesmen, national artists and other
deceased persons whose interment or re-interment has been
approved by the Commander-in-chief, Congress, or the
10. Former Presidents, secretaries of defense, CSAFP,
generals/flag officers, dignitaries, statesmen, national artists,
widows of former presidents, secretaries of national defense
and chief of staff.
In the same vein, the regulation disallows the interment in

the Libingan ng mga Bayani of the following:
1. Personnel who were dishonorably separated, reverted, and/or

discharged from the service;

2. Authorized personnel who were convicted by final judgment of

an offense involving moral turpitude.
Petitioners who took part in the Ocampo, Rosales, and

Baniaga petitions submit that notwithstanding the fact
that Ferdinand E. Marcos was a Former President, he is
disqualified from being buried in the Libingan ng mga
Bayani because he falls under the category of „personnel
who were dishonorably separated or discharged from the
service.‰26 Therein petitioners emphasize that the Former
President was deposed and removed from the presidency
because of the atrocities he committed during his tenure.
Insisting that such facts are matters of judicial notice,
petitioners maintain that such removal through revolution
is tantamount to being dishonorably separated or
discharged from the service,
_______________
26 Baniaga Petition, p. 11; Rosales Petition, p. 37; Ocampo Petition,

p. 15.
470

Ocampo vs. Enriquez
thereby effectively disqualifying him from being buried at

the Libingan ng mga Bayani. Alternatively, the Ocampo
petition attacks the legality and constitutionality of the
AFP Regulation. Petitioners therein submit that the AFP
Regulation unduly expands the parameters of R.A. No. 289
by allowing one unworthy to be considered an inspiration
and unworthy of emulation by generations to be buried at
the Libingan ng mga Bayani.27
Finally, for those who took part in the Ocampo, Lagman,
and Rosales petitions, even if it be conceded that Former
President Marcos is qualified under the law and the AFP

Regulation, whatever benefits and courtesies due him have

already been waived and contracted away by the Marcos
family when they agreed to bury him in Batac, Ilocos Norte
pursuant to their agreement with then President Fidel V.
Ramos. It was likewise submitted that the 1993 Agreement
should be treated as a compromise agreement that was
voluntarily entered into by the Philippine Government and
the Marcos family, making it the law between the parties.28
Stated otherwise, petitioners contend that respondents are
bound to observe the terms of the Agreement as it is a
binding contract between the parties. Petitioners insist
that the High Court should take judicial notice of such
Agreement as it was an official act of the Executive
Department.29 Moreover, it is averred that an
abandonment of the Agreement, a reboot of the entire
process, by allowing the burial at the Libingan ng mga
Bayani is tantamount to reliving the terror and horrors of
the victims.30
I join the opinion to dismiss the consolidated petitions
for the issuance in their favor and against the respondents,
of the special writ of certiorari. President Rodrigo R.
Duterte did not gravely abuse his discretion, was neither
whimsical nor capricious when upon assumption of the
office to which he was elected he forthwith proceeded to
implement his election promise to have the remains of the
late President Ferdinand E. Marcos buried in the Libingan
ng mga Bayani.
_______________

29 Id., at p. 67.
471
VOL. 807, NOVEMBER 8, 2016 471

Ocampo vs. Enriquez

This position is fixed and firmed by the origins of the

petitions so impressively presented in the petition itself in
G.R. No. 225973:
„10. During the campaign period for the 2016 Presidential

Elections then candidate Rodrigo Duterte publicly announced that
he will allow the burial of former President Ferdinand Marcos at
the Libingan ng mga Bayani. He reiterated this public
pronouncement when he became president without giving details on
how this will be implemented, leaving the Marcoses to process the
same with the proper authorities.
11. These pronouncements were met with opposition by various
sectors including victims or relatives of human rights violations of
torture, illegal arrest, arbitrary detention, disappearances and
summary executions during martial law. Family members of the
thousands who died during martial law also protested these public
pronouncements with the hope that the plan will not push through.‰
As judicial admissions,31 petitioners state as fact that

the burial of former President Marcos as the Libingan ng
mga Bayani is a matter about which the Filipino public
was consulted as a campaign promise of candidate Duterte
who, when he became president redeemed the pledge.
Significantly, petitioners further admitted that they, as
„the various sectors‰ participated in the election of options
and met with opposition the pronouncements favoring the
Libingan as burial of MarcosÊ remains and protested the
public pronouncements of the promisor.
Thus did the petitioners admit that the determination of
the issue can be, if not ought to be, left to the will of the
people. True to the ad-
_______________
31 Section 4, Rule 129 of the Revised Rules of Court:

Section 4. Judicial admissions.·An admission, verbal or
written, made by a party in the course of the proceedings in the
same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable
mistake or that no such admission was made.
A party may take judicial admissions in (a) the pleadings, (b)
during the trial, either by verbal or written manifestations or

stipulations, or (c) in other stages of the judicial proceeding.

(Binarao v. Plus Builders, Inc., G.R. No. 154430, June 16, 2006,
491 SCRA 49)
472

Ocampo vs. Enriquez
mission, petitioners sought to forge that will into the shape

they hoped for. The petitioners objected against the
publicly announced Marcos Libingan burial; they protested
the pronouncement. Indeed the issue was made public and
was resolved through a most political process, a most
appropriate process: the election of the President of the
Republic.32 A juxtaposition of two concepts, people and
suffrage, show this. In his treatise, as old as it is respected,
Dean Vicente Sinco expounds:
The same meaning, that of all the Citizens considered as a

collective unit acting under a majority rule, is given to the term
people in an Illinois decision which states that „in a representative
government all powers of government belong ultimately to the
people in their sovereign corporate capacity.‰ Obviously it is in this
sense that the term people is used in the Constitution of the
Philippines when it declares in its Article II thus: The Philippines is
a republican state. Sovereignty resides in the people and all
governmental authority from them.33
xxxx
Suffrage, or the right to vote, is a political right. Different views

have been expressed about its nature. One is that it is merely a
privilege to be given or withheld by the law-making power in the
absence of constitutional limitations. Another view considers it as a
natural right included among the liberties guaranteed to every
citizen in a republican form of government, and may not therefore
be taken away from him except by due process of law. A third view
maintains that the right of suffrage is one reserved by the people to

a definite portion of the population possessing the qualifications

prescribed in the constitution. This view is based on the theory that
the
_______________
32 Rodrigo R. Duterte garnered a total of 16,601,997 votes; 6,623,822

votes more than his closest rival Mar Roxas who got 9,978,175 votes. The
rest of the candidates got the following votes:
Jojo Binay – 5,416,140 votes;
Miriam Defensor-Santiago – 1,455,532 votes;
Grace Poe – 9,100,991 votes;
Roy Señeres – 25,779 votes;
33 Sinco, Philippine Political Law: Principles and Concepts, pp. 8-9;
10th edition; Article II in the 1935 Constitution is now Sec. 1 of Article II
of the 1987 Constitution.
473
VOL. 807, NOVEMBER 8, 2016 473

Ocampo vs. Enriquez
sovereign political power in a democratic state remains with the

people and is to be exercised only in the manner indicated by the
constitution. Consequently, a person who belongs to the class to
whom the constitution grants this right may not be deprived of it by
any legislative act except by due process of law. It is in this sense
that suffrage may be understood in the Philippines at present.34
(Underscoring supplied)
The people or the qualified voters elected as president of

the Philippines the candidate who made the election
pronouncement, objected to by the persons who are now the
petitioners, that he will allow the burial of former
President Ferdinand Marcos at the Libingan ng mga

Bayani.
As things are, it is hardly debatable that, by word and
deed, petitioners have accepted that the issue they now,
after losing the vote, present before the Court is a political
issue, defined over and over again, by variations of phrases
that have one meaning:
„. . . What is generally meant, when it is said that a question is

political, and not judicial, is that it is a matter which, is to be
exercised by the people in their primary political capacity, or that it
has been specifically delegated to some other department or
particular officer of the government, with discretionary power to
act. See State v. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green v. Mills,
69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher v. Tuttle, 151
Ill. 41, 37N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220. Thus the
Legislature may in its discretion determine whether it will pass a
law or submit a proposed constitutional amendment to the people.
The courts have no judicial control over such matters, not merely
because they involve political question, but because they are
matters which the people have by the Constitution delegated to the
Legislature. The Governor may exercise the powers delegated to
him, free from judicial control, so long as he observes the laws and
acts within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a political
nature, but because the Constitution and laws have placed the
particular matter under his control. But every officer under a
constitutional government must
_______________
34 Id., at pp. 402-403.
474

Ocampo vs. Enriquez
act according to law and subject him to the restraining and

controlling power of the people, acting through the courts, as well as

through the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department
which is charged with the special duty of determining the
limitations which the law places upon all official action. The
recognition of this principle, unknown except in Great Britain and
America, is necessary, to the end that the government may be one of
laws and not menÊ-words which Webster said were the greatest
contained in any written constitutional document.‰ (pp. 411, 417;
emphasis supplied)
In short, the term „political question‰ connotes, in legal parlance,
what it means in ordinary parlance, namely, a question of policy. In
other words, in the language of Corpus Juris Secundum (supra), it
refers to „those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the
Legislature or executive branch of the Government.‰ It is concerned
with issues dependent upon the wisdom, not legality, of a particular
measure.35
There were ripostes. They were feeble though; and

notably they concern not the political nature of the issue
but rather the indications of the electoral response.
There was reference to the nitpicked significance of
„majority‰ in the definition of „people‰ the argument being
that the 16,601,997 votes in favor of the promising
candidate is not the majority of the total number of those
who voted for the position. What makes the observation
specious is the fact that it was only candidate Duterte who
made the serious and specific promise of a Libingan burial
for Marcos. The other four candidates for president were
unclear about their preference. The votes for the four
cannot be definitely counted as against the burial.
Referring to the variety of the electoral issues, there
were those who submit that not all those who voted for
Duterte did so because they favored the burial of Marcos at
the Libingan. It is contended that the votes for Duterte
were determined by items in his platform other than
_______________
35 Tañada v. Cuenco, No. L-10520, 28 February 1957, 103 Phil. 1051.

475
VOL. 807, NOVEMBER 8, 2016 475

Ocampo vs. Enriquez
the burial issue. That may be plausible; but what cannot be

questioned is that Duterte did not lose because of his burial
pronouncement.
It was urged that the Libingan allowance was not a
commitment to the nation, not a principled promise, a mere
propaganda pitch. Thus, was the issue sought to be reduced
as a promise made to be broken, treacherous trap for
undiscerning electors. That the allegations are unfounded
is clearly shown by the prefatory phrase in the
memorandum36 of respondent Secretary of National
Defense Delfin N. Lorenzana to respondent Gen. Ricardo R.
Visaya, AFP:
In compliance to the verbal order of the President to implement

his election campaign promise to have the remains of the late
former President Ferdinand E. Marcos be interred at the Libingan
ng mga Bayani, kindly undertake the necessary planning and
preparations to facilitate the coordination of all agencies concerned
specially the provisions for ceremonial and security requirements.
Coordinate closely with the Marcos family regarding the date of
interment and the transport of the late former PresidentÊs remains
from Ilocos Norte to the LNMB.
The overall OPR for this activity will the PVAO since the LNMB
is under its supervision and administration. PVAO shall designate
the focal person for this activity who shall be the overall overseer of
the event.
Submit your Implementing Plan to my office as soon as possible.
The Marcos internment at Libingan, borrowing the

petitionersÊ words, was a principled commitment which
President Duterte firmly believed was so when he offered it
to the Filipino voters whom he considered capable of
intelligent choice such that upon election he had to

„implement his election promise.‰ That, precisely, resulted

in the filing of the consolidated petitions before the Court.
Quite obviously, the petitions were submitted because
the petitioners did not prevail in the political exercise that
was the National Elections of 2016. Right away, we have
the reason why the petitions should be dismissed. The
petitions with premises and prayer no different from
_______________
36 Annex „A‰ (Petition in G.R. No. 225984).
476

Ocampo vs. Enriquez
those that were publicly debated, for or against, between

and among the people including petitioners themselves
proceeding to a conclusion unacceptable to them, cannot be
pursued in lieu of the failed public submission.
Adamant in their position, petitioners nonetheless went
to Court with their cause now in legal clothing. Still,
petitioners cannot thereby bring the matter within the
adjudication of the Court.
There was heavy reference to R.A. No. 10368, titled „An
Act Providing for Reparation and Recognition of Victims of
Human Rights Violations during the Marcos Regime,
Documentations of Said Violations, Appropriating Funds
Therefor and for Other Purposes.‰ Notably, the petitioners,
as they described themselves, are the same persons for
whose favor the statute was enacted; the reasons they
mention in their petition consisting of the provisions of the
Constitution and of the international agreement are the
same reasons mentioned in Section 2 of the statute in the
„Declaration Policy.‰ Quite specifically the statute defines
„Human Rights Violation‰ as any act or omission
committed during the period from September 21, 1972 to
February 25, 1986 carried out pursuant to the declaration

of Martial Law by former President Ferdinand E. Marcos

including warrantless arrest, ASSO, PCO, PDA, torture,
killing, involuntary disappearances, illegal takeover of
business, confiscation of property, sexual offenses and
„analogous‰ abuses. And, it is provided that Human Rights
Violations Victim (HRVV) refers to a person whose human
rights were violated by persons acting in an official
capacity and to qualify for reparations „the human rights
violation must have been committed during the period from
September 21, 1972 to February 25, 1986.‰
Clearly, as proclaimed human rights victims, they
squarely fall under the definition of R.A. No. 10368. For the
same reasons and basis that they are now before this
Court, petitioners have already, by the proper political
body, been given the recognition and reparation due them,
in specific, direct and detailed provisions that even include
the creation of a Human Rights VictimsÊ Claims Board to
implement the recognition and reparation granted to them
by statute.
R.A. No. 10368 is a complete law. It has defined their
rights, not just for reparation for damages suffered as
HRVÊs but also they will
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Ocampo vs. Enriquez
have by the law their names enshrined in a Roll of Human

Rights Victims. A Memorial/Museum/Library shall be
established in their Honor. A compendium of their sacrifice
shall be prepared and be readily viewed in the internet.
There will even be a Human Rights Violations VictimsÊ
Memorial Commission. The definition of what their rights
are limits any further inclusions except, perhaps, through
the same legislative action. There too is significance in the
„sunset clause‰ of the law which states that the Human
Rights VictimsÊ Claims Board shall complete its work
within two years from the effectivity of the IRR
promulgated by it, after which it shall become functus

officio. By its concrete and definite terms, R.A. No. 10368 is

a completed exercise of legislative wisdom. The Court
cannot allow the collected petitions at bar to interfere with
that wisdom.
The urgings for judicial action inspite of the limits of
R.A. No. 10368 can be gleaned from the presentation by
petitioners during the oral arguments. They testified on the
details of their suffering during the term of President
Ferdinand E. Marcos and pleaded that the burial of Marcos
at the Libingan ng mga Bayani would „retraumatize‰
them. They supported the claim and prayer with the
submission that their suffering accompanied by the other
commission of Marcos, was a national experience that
became sovereign contempt culminating in a revolt against
Marcos and eventually the „constitutionalization‰ of both
sin and sinner. Hence, the prayer that the allowance of the
burial at the Libingan ng mga Bayani of the
constitutionalized offender is in grave abuse of discretion.
Relative to the petitionersÊ prayer, an explanation was
made by the Solicitor General:
Justice Caguioa:
Was this a unilateral act on the part of the President or was this a
request from the Marcos family?
Solicitor General Calida:
I do not know the circumstances in which this promise was made,

Your Honor, but if I know President Duterte, he already had a plan
for the Philippines, a plan to unite all the Filipinos of different
persuasions, ideologist, in fact, this policy of recon-
478

Ocampo vs. Enriquez
ciliation is now manifested in the recent Oslo, Norway talks, Your

Honor. He wants an inclusive government, Your Honor.

Justice Caguioa:
So, what are we saying here that the testimonials made by human
rights victims and other people like them which the Claims Board
has numbered at around seventy-five thousand (75), those pain, the
pain that they feel they do not reflect the national phyche today, is
that what youÊre saying?
Your Honor, IÊm human being I feel their pain, but we are in a
Court of law, Your Honor. And there are venues where that pain
will be expressed by the victims, and as far as I know, making them
recount their horrible experience is a form of retraumatization.
Justice Caguioa:
I understand from their testimonies and the summation made by

the human rights, what is retraumatizing them is the act of
burying President Marcos, do you dispute that?
I do not agree with that, Your Honor.
Justice Caguioa:
When the President made this decision to allow the interment of

President Marcos in the Libingan, did they also considered the
injury that the Marcos family would suffer if the burial did not take
place?
xxxx
Well, the urgency, Your Honor, is that President Duterte has

already stated that among his policies, Your Honor, is the policy of
reconciliation, national healing, and any day that is, shall I
rephrase if Your Honor. This is the policy that he has adopted: the
remains of Marcos should now be interred at the Libingan even the
218 Congressmen, Your Honor, of the 15th Congress agreed that
this place is the most fitting place where former President Marcos
will be buried, Your Honor.

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Ocampo vs. Enriquez
Justice Caguioa:
And this wisdom, this decision is over and above the pain and
sufferings of the human rights victims do I understand that
correctly as a political decision that he made?
Well, the President will take every matter into consideration, Your
Honor, and I assume he considered that too.
Justice Caguioa:
Alright, thank you.37
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. The election result is a showing that, while there
may have once been, there is no longer a national
damnation of President Ferdinand E. Marcos; that the
„constitutionalization‰ of the sin and its personification is
no longer of national acceptance. A Marcos vote came out of
the elections, substantial enough to be a legitimate
consideration in the executive policy formulation. To go
back, a Libingan Burial for Marcos was a promise made by
President Duterte, which promise was opposed by
petitioners, inspite of which opposition, candidate Duterte
was elected President.
All in all, 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. As things are the
issue presented by the petitioners should not even be
touched by the Court since it is a political question already
resolved politically.

I vote to DISMISS the consolidated petitions before this

Court.
_______________
37 TSN of Oral Arguments, Wednesday, 7 September 2016, 10:00 a.m.
480

Ocampo vs. Enriquez
SEPARATE OPINION
MENDOZA, J.:
The Court should not take sides in this political

controversy.
The questions being truly political, there is simply no
justiciable controversy. Hence, the petitions should be
dismissed.
Ferdinand Edralin Marcos (President Marcos) was not,
and will never be, a hero. His interment in the Libingan ng
mga Bayani (LNMB) will not erase the atrocities
committed during his authoritarian rule. His place in
history will ultimately be judged by the people.
His worthiness as a hero, however, is not the issue at
hand. The current controversy revolves around the decision
of the administration of President Rodrigo Roa Duterte
(President Duterte) to allow the burial of the remains of
President Marcos in the LNMB in the exercise of his
discretion as Chief Executive.
In the course of his campaign for the May 2016 national
elections, President Duterte promised to have the remains
of the late president buried in the LNMB as a step towards
national conciliation or healing. After winning the
elections, he followed through on his campaign promise.
Pursuant thereto, the public respondents began to take
steps to implement his verbal order.

Herein petitioners, majority of whom are either victims

or kin of victims of human rights violations committed
during the regime of the deposed dictator, assert that the
interment is contrary to the Constitution, laws and
regulations, and international law. The petitioners claim
that a recognized dictator, plunderer and human rights
violator has no place in the LNMB, which is reserved for
persons who are worthy of emulation or a source of
inspiration.
Issues involved are truly

political questions which
are nonjusticiable
The Court has refused to take cognizance of cases which

do not present any justiciable controversy, such as when
the issue presented is a
481
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Ocampo vs. Enriquez
truly political question. In the landmark case of Tañada v.

Cuenco,1 the Court expounded on the concept of political
question, viz.:
As already adverted to, the objection to our jurisdiction hinges on

the question whether the issue before us is political or not. In this
connection, Willoughby lucidly states:
„Elsewhere in this treatise the well-known and well-

established principle is considered that it is not within the
province of the courts to pass judgment upon the policy of
legislative or executive action. Where, therefore,
discretionary powers are granted by the Constitution
or by statute, the manner in which those powers are
exercised is not subject to judicial review. The courts,
therefore, concern themselves only with the question as to the
existence and extent of these discretionary powers.

xxx
In short, the term „political question‰ connotes, in

legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the
language of Corpus Juris Secundum (supra), it refers to
„those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government.‰ It is
concerned with issues dependent upon the wisdom, not
legality, of a particular measure. [Emphases supplied]
It is true that under the present constitutional milieu,

the scope of judicial power has been expanded. Under
Section 1, Article VIII of the Constitution, „[j]udicial power
includes the duty of the courts of justice to settle actual
controversies involving rights which are legally
instrumentality of government.‰
_______________
1 No. L-10520, February 28, 1957, 103 Phil. 1051.
482

Ocampo vs. Enriquez
The expanded judicial power bestowed by the

Constitution is an offshoot of the prevalence, during the
Marcos regime, of invoking the political question doctrine
every time government acts were questioned before the
courts. The present Constitution, thus, empowered the

courts to settle controversies if there would be grave abuse

of discretion.
Notwithstanding the expanded power of the courts, the
political question doctrine remains operative. The present
provision on judicial power does not mean to do away with
the political question doctrine itself, and so „truly
political questions‰ are still recognized.2 In Francisco, Jr.
v. HRET,3 the Court explicitly recognized the political
question doctrine and explained how the same was
determined:
From the foregoing record of the proceedings of the 1986

Constitutional Commission, it is clear that judicial power is not only
a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine.
Chief Justice Concepcion hastened to clarify, however, that Section
1, Article VIII was not intended to do away with truly
political questions. From this clarification it is gathered
that there are two species of political questions: (1) truly
political questions and (2) those which „are not truly
political questions.‰
Truly political questions are thus beyond judicial review,
the reason for respect of the doctrine of separation of
powers to be maintained. On the other hand, by virtue of
Section 1, Article VIII of the Constitution, courts can review
questions which are not truly political in nature.
xxx
Section 1, Article VIII of the Constitution does not define what

are justiciable political questions and non-justiciable political
questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard.
The American case of Baker v. Carr attempts to provide some:
_______________
2 Bernas, Joaquin G., The 1987 Constitution of the Republic of the

Philippines: A Commentary (2003).
3 460 Phil. 830; 415 SCRA 44 (2003).

483
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Ocampo vs. Enriquez
. . . Prominent on the surface of any case held to involve a

political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a
courtÊs undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or
an unusual need for questioning adherence to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments
on one question.
Of these standards, the more reliable have been the first three:
(1) a textually demonstrable constitutional commitment of the issue
to a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the
impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion. These standards are not
separate and distinct concepts but are interrelated to each in that
the presence of one strengthens the conclusion that the others are
also present.
The problem in applying the foregoing standards is that the
American concept of judicial review is radically different from our
current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether
they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political
question from a nonjusticiable political question lies in the
answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government
properly acted within such limits.4 x x x. [Emphases and
underscoring supplied]

Thus, a political question will not be considered

justiciable if there are no constitutionally imposed limits on
powers or functions conferred
_______________
4 Id., at pp. 910-912; pp. 149-151.
484

Ocampo vs. Enriquez
upon the political bodies.5 Nonetheless, even in cases where

matters of policy may be brought before the courts, there
must be a showing of grave abuse of discretion on the part
of any branch or instrumentality of the government before
the questioned act may be struck down. „If grave abuse is
not established, the Court will not substitute its
judgment for that of the official concerned and
decide a matter which by its nature or by law is for
the latter alone to decide.‰6 „We cannot, for example,
question the PresidentÊs recognition of a foreign
government, no matter how premature or improvident such
action may appear. We cannot set aside a presidential
pardon though it may appear to us that the beneficiary is
totally undeserving of the grant. Nor can we amend the
Constitution under the guise of resolving a dispute brought
before us because the power is reserved to the people.‰7
Guided by the foregoing, it is my considered view that
the decision of President Duterte to allow President Marcos
to be interred in the LNMB is beyond the ambit of judicial
review.
Interment of President Marcos

in the LNMB is a discretionary
act of President Duterte

Executive power is vested in the President of the

Philippines.8 Inherent in the executive power is the duty to
faithfully execute the laws of the land and is intimately
related to the other executive functions.9 Section 17, Article
VII of the Constitution10 embodies the faithful execution
clause. The Executive is given much leeway in ensuring
that our
_______________

205728, January 21, 2015, 747 SCRA 1, 57.
6 Marcos v. Manglapus, 258 Phil. 479, 506-507; 177 SCRA 668, 696
(1989).
7 Id., at p. 506; pp. 695-696.
8 Section 1, Article VII of the CONSTITUTION.
9 Saguisag v. Ochoa, Jr., G.R. No. 212426, January 12, 2016, 779
SCRA 241, 339.
10 The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
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Ocampo vs. Enriquez
laws are faithfully executed.11 Thus, any act pursuant to

the faithful execution clause should be deemed a political
question as the President is merely executing the law as it
is. There is no question as to the legality of the act but on
its wisdom or propriety.
Indeed, the duty to execute the laws of the land is not
discretionary on the part of the President, in the same
manner that it is not discretionary on the part of the
citizens to obey the laws. In Spouses Marquez v. Spouses
Alindog,12 the Court drew a fine line between a
discretionary act and a ministerial one.
A clear line demarcates a discretionary act from a ministerial

one. Thus:
The distinction between a ministerial and discretionary act is
well-delineated. A purely ministerial act or duty is one which an
officer or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when
the duty shall be performed, such duty is discretionary and
not ministerial. The duty is ministerial only when the discharge of
the same requires neither the exercise of official discretion or
judgment. [Emphasis and underscoring supplied]
The President may also exercise his judgment in the

manner of implementing the laws. For as long as he
faithfully executes the law, any issue on the wisdom or
propriety of his acts is deemed a political question.
Moreover, the authority of President Duterte to allow
the interment of President Marcos in the LNMB is derived
from the residual powers of the executive. In the
landmark case of Marcos v. Manglapus,13 the Court had
expounded on the residual powers of the President, to wit:
_______________

449; 637 SCRA 78, 159 (2010).
12 G.R. No. 184045, January 22, 2014, 714 SCRA 460, 472.
13 Supra note 6 at pp. 504-505; pp. 694, 723-724.
486

Ocampo vs. Enriquez
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 PresidentÊs

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 p. 153] It is a power borne by the
may be viewed as a power implicit in the PresidentÊs duty to take
care that the laws are faithfully executed [see Hyman, The
American President, where the author advances the view that an
allowance of discretionary power is unavoidable in any government
and is best lodged in the President].
More particularly, this case calls for the exercise of the
PresidentÊs powers as protector of the peace. [Rossiter, The
American Presidency] The power of the President to keep the peace
is not limited merely to exercising the commander-in-chief powers
in times of emergency or to leading the State against external and
internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency,
but is also tasked with attending to the day-to-day problems
of maintaining peace and order and ensuring domestic
tranquillity in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished
by the relative want of an emergency specified in the commander-
in-chief provision. For in making the President commander-in-chief
the enumeration of powers that follow cannot be said to exclude the
PresidentÊs exercising as Commander-in-Chief powers short of the
calling of the armed forces, or suspending the privilege of the writ of
habeas corpus or declaring martial law, in order to keep the peace,
and maintain public order and security. [Emphases and
underscoring supplied]
To reiterate, President DuterteÊs rationale in allowing

the interment of President Marcos in the LNMB was for
national healing, reconciliation and forgiveness amidst our
fragmented society, so that the country could move forward
in unity far from the spectre of the martial law regime.
487

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Ocampo vs. Enriquez
To this, however, the petitioners vehemently disagree.

Thus, in their petitions, they challenge the wisdom of the
decision of the President. They bewail, and understandably
so, that Marcos was not a hero who deserved to be buried
in the hallowed grounds of the LNMB. They view him as
not worthy of being buried alongside those who were true
heroes, as they hold him responsible for the illegal
detention, arrest, torture, disappearances, and summary
executions of those who opposed his regime.
The Court should not comment on those points for now.
It is not unaware of the sufferings of the victims of human
rights during martial law. The Court, however, should defer
exercising jurisdiction when the acts of the State are
challenged based on their wisdom or propriety. It should be
stressed, however, that the interment of President Marcos
in the LNMB will not bestow upon him the title of a hero.
It will not erase from the memories of the victims what
have been etched in their minds · that President Marcos
was a heartless dictator and rapacious plunderer of our
national economy and patrimony.
No Grave Abuse of Discretion
Granting that the discretionary act of President Duterte

was covered by the expanded scope of judicial power, the
petitions would still lack merit. There is absolutely no
showing that the acts of the public respondents are tainted
with grave abuse of discretion amounting to lack or excess
of jurisdiction.
Grave abuse of discretion is a capricious and whimsical
exercise of judgment so patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform
a duty enjoined by law, as where the power is exercised in
an arbitrary and despotic manner because of passion or
hostility.14
In the situation at hand, no grave abuse of discretion is
manifest as there is no violation of any constitutional
provision or law. In fact, the public respondents were
guided by, and complied with, the law. Under

_______________
14 Intec Cebu, Inc. v. Court of Appeals, G.R. No. 189851, June 22,
2016, 794 SCRA 266.
488

Ocampo vs. Enriquez
AFP Regulation G 161-375, the following are eligible for

interment in the LNMB:
1. Medal of Valor Awardees;

2. Presidents or Commanders-in-Chief;
3. Secretaries of National Defense;
4. Chiefs of Staff;
5. General/Flag Officers of the AFP;
6. Active and retired military personnel of the AFP to include
reservists and CAFGU Active Auxiliary (CAA) who died in
combat operations or combat related activities;
7. Former members of the AFP who laterally entered or joined the
PCG and the PNP;
8. Veterans of Philippine Revolution of 1890, WWI, WWII and
recognized guerrillas;
9. Government Dignitaries, Statesmen, National Artists and other
approved by the Commander-in-Chief, Congress, or the Secretary
of National Defense; and
10. Former Presidents, Secretaries of Defense, Dignitaries,
Secretaries of National defense and Chief of Staff.
In the absence of any law to the contrary, AFP

Regulation G 161-375 remains to be the sole legal basis in
determining who are qualified to be buried in the LNMB.
When the public respondents based their decision on the
applicable laws and regulations, they cannot be said to

have committed grave abuse of discretion. Besides, it is not

for the Court to determine who is worthy of inspiration or
emulation.
It is true that the present Constitution was crafted to
prevent the occurrence of abuse prevalent during the
Marcos Regime. This is evident in numerous provisions of
the Constitution such as the Bill of Rights and the
provisions under the Executive Department limiting the
power
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Ocampo vs. Enriquez
to declare Martial Law. Nevertheless, the Constitution

neither expressly nor impliedly prohibits the interment of
President Marcos in the LNMB.
Moreover, the decision to allow the interment of
President Marcos in the LNMB is not contrary to R.A. No.
289 and R.A. No. 10368. As explained by the public
respondents, the National Pantheon mentioned in R.A. No.
289 was quite different from the LNMB. As such, the
standards claimed by the petitioners in R.A. No. 289 are
not applicable to the LNMB.
Likewise, the interment of President Marcos in the
LNMB is not repugnant to the avowed policy of R.A. No.
10368, which seeks to recognize the heroism of human
rights violation victims (HRVV) during martial law. First,
R.A. No. 10368 neither expressly nor impliedly prohibits
his burial in the LNMB. Second, his interment is not
incongruous with honoring HRVVs considering that the
burial is not intended to confer upon him the title of a hero.
Third, the State can continue to comply with its obligation
under R.A. No. 10368 to provide recognition and
reparation, monetary or nonmonetary, to the HRVVs,
notwithstanding his burial in the LNMB.
A Final Note

Lest it be misunderstood, the Court is not passing

judgment on whether President Marcos truly deserves to be
buried in the LNMB. It is merely exercising judicial
restraint as the issues at hand are truly political in nature
and, therefore, are best left to the discretion of the
President.
The Court sympathizes with the HRVVs and
acknowledges the harrowing ordeals they suffered in the
hands of government forces during martial law. The stigma
left by the martial law regime will never be forgotten by
the Filipino people and the burial of President Marcos in
the LNMB will not rewrite history.
On the matter, however, the Supreme Court should not
have a hand. It should not resolve the issues in this truly
political controversy.
Accordingly, I vote to dismiss these petitions and move
on.
490

Ocampo vs. Enriquez
DISSENTING OPINION
„. . . They tore my dress and then even-

tually they let me lay down to sleep but
then early in the morning the two soldiers
who stayed near me started torturing me
again and by todayÊs definition, it is rape
because they fondled my breast and they
inserted a long object into my vagina and
although I screamed and screamed with
all my might, no one seemed to hear ex-
cept that I heard the train pass by . . .‰
– Ma. Cristina Pargas Bawagan,
Petitioner and Human Rights
Victim of the Marcos Regime
„My mother is still alive but she was

also . . . she also undergone . . . she

underwent torture and sexual abuse and
I hope my sister is not listening right
now because she does not know this.‰
– Liwayway Arce,
Petitioner and Human Rights
Victim of the Marcos Regime
LEONEN, J.:
I dissent.
Under our constitutional order, Presidents, unlike kings,
earn their honors. As Presidents are public servants, their
position in itself should not be the basis to glorify them.
Neither should their place in history be determined by a
succeeding President. Only the sovereign Filipino People
deserve to determine a PresidentÊs place in history.
Given the present state of our Constitution, our laws,
and our jurisprudence, it is illegal for the remains of
Ferdinand E. Marcos to be interred at the Libingan ng mga
Bayani. The Filipino People do not deserve such a
symbolism.
491
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Ocampo vs. Enriquez
Former President Ferdinand E. Marcos presided over a

regime that caused untold sufferings for millions of
Filipinos. Gross violations of human rights were suffered
by thousands. The public coffers contributed to by
impoverished Filipinos were raided. Ferdinand E. Marcos
stood by as his family, associates, and cronies engaged in
systematic plunder. The national debt ballooned during his
regime.
He was eventually ousted by a public uprising. His
regime and the abuses he committed during that time led
to a complete rethinking of our constitutional order. The
1987 Constitution embeds most of our experiences during

Martial Law. It was a reaction to the failures of governance

of Ferdinand E. Marcos and his cohorts.
Ferdinand E. Marcos is no hero. He was not even an
exemplary public officer. He is not worthy of emulation and
inspiration by those who suffer poverty as a result of the
opportunity lost during his administration, by those who
continue to suffer the trauma of the violations to the
human dignity of their persons and of their families. He is
certainly not worthy of emulation and inspiration by those
in public service, including the lawyers, judges, and
justices who simply want to do what is right, protect
others, and conscientiously and diligently protect public
funds entrusted to them.
If we are true to the text and spirit of our Constitution
and our laws as well as our history, Ferdinand E. Marcos
cannot be buried at the Libingan ng mga Bayani. The
proposal that he be accorded public honor is contrary to
law. It is a betrayal of the Filipino spirit.
Rodrigo Roa DuterteÊs discretion as President is „not
unconfined and vagrant‰ but always „canalized within
banks that keep it from overflowing.‰1 His alleged verbal
orders to cause the interment of the remains of Ferdinand
E. Marcos at the Libingan ng mga Bayani were whimsical,
capricious, a grave abuse of discretion, and issued only to
please a single family. Ferdinand E. Marcos invented most
of his medals as a soldier. He was one of our worst
Presidents.
_______________

Executive Secretary, 714 Phil. 127, 163; 701 SCRA 269, 309 (2013), citing
the dissent of J. Cardozo in Panama Refining Co. v. Ryan, 293 U.S. 388
(1935) [Per J. Leonardo-De Castro, En Banc].
492

Ocampo vs. Enriquez

National healing cannot simply come when the

President pronounces it. It can only come through a process
that leads to social justice. Justice requires accountability.
Justice does not come with just forgetting. Accountability
involves the recognition of the place of the perpetrator and
the victim.
The victims of Martial Law, who stood by their
principles and spoke to power, who were detained, made to
disappear, tortured, killed, molested, and raped, were the
heroes. They are the „bayani.‰ By law, they are our heroes.
Ferdinand E. Marcos was the perpetrator. He is not the
„bayani.‰ The perpetrator cannot be a hero at the same
time that his victims are heroes. This is cruel and illogical.
This is impunity. This is an assurance that our People will
suffer the same gross violations of human rights and
plunder.
Our laws are not illogical. If they are, then they will be
the cause of injustice. If our laws are unreasonable, then
they will violate the „due process of law.‰ Certainly, this
Court cannot be party to an illogical and unreasonable
interpretation of the law.
Our laws do not allow the burial of the remains of the
perpetrator at the Libingan ng mga Bayani for any or all of
the following reasons:
First, the PresidentÊs verbal orders, which were the basis
for the issuance of the questioned orders of public
respondents, are invalid because they violate Republic Act
No. 289. Republic Act No. 289 was never repealed. The law
covers the subject of AFP Regulations No. 161-373 (1986),2
AFP Regulations No. 161-374 (1998),3 and AFP Regulations
No. 161-375 (2000) (collectively, AFP Regulations).4 Yet,
these AFP Regulations ignore the requirements of Republic
Act No. 289. Therefore, the basis of the Memorandum5 of
Secretary of National Defense Delfin Lorenzana
(Lorenzana Memorandum) and the Directive6 of Rear
Admiral Ernesto Enriquez (Enriquez Orders) are ultra
vires and, therefore, are null, void, and inexistent.
_______________
2 OSG Comment, Annex 5.

3 Id., Annex 6.

4 Id., Annex 7.
5 OSG Memorandum, p. 20.
6 Id.
493
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Ocampo vs. Enriquez
Second, assuming without accepting that AFP

Regulations were valid when issued, still PresidentÊs verbal
orders, the Lorenzana Memorandum, and the Enriquez
Orders all violate the requirement in Section 1 of Republic
Act No. 289 that those buried must have led lives worthy of
„inspiration and emulation.‰
Third, assuming without accepting that the AFP
Regulations were valid when issued, public respondents
gravely abused their discretion when they failed to show
that there was an examination of the sufficiency of the
facts that would reasonably lead them to believe that the
burial of the remains of Ferdinand E. Marcos at the
Libingan ng mga Bayani would be in accordance with
Republic Act No. 289 or the various Proclamations that
identified the location of the Libingan, considering the
findings of the National Historical Commission of the
Philippines (National Historical Commission), the
provisions of our laws including Republic Act No. 10368,
and this CourtÊs jurisprudence.
The PresidentÊs verbal orders do not provide for a
definite and complete reason for transferring the remains
of Former President Ferdinand E. Marcos from its
originally intended site as shown in the agreement signed
by Former Secretary Rafael Alunan III (Former Secretary
Alunan) and Imelda Marcos to the Libingan ng mga
Bayani. It was whimsical, capricious, and an abuse of
discretion, and could have been done only to accommodate
the private interest of the Heirs of Marcos.
Fourth, the PresidentÊs verbal orders, the Lorenzana
Memorandum, and the Enriquez Orders were issued with

grave abuse of discretion because they violate Republic Act

No. 10368, otherwise known as the Human Rights Victims
Reparation and Recognition Act of 2013.
Fifth, the PresidentÊs verbal orders, the Lorenzana
Memorandum, and the Enriquez Orders cannot be justified
even under the provisions of the Administrative Code of
1987. Given the established circumstances of the Marcos
regime and the participation of Ferdinand E. Marcos, there
remains no public purpose to the interment of the remains
of Ferdinand E. Marcos at the Libingan ng mga Bayani.
Sixth, the actions of public respondents are contrary to
the PresidentÊs oath of office because they encourage
impunity. Impunity is the
494

Ocampo vs. Enriquez
result of rewarding the person who presided over human

rights violations and who personally participated in the
plunder of the public treasury.
This case resolves Petitions for certiorari,7 prohibition,8

and mandamus:9 (i) questioning the validity of the verbal
orders of President Rodrigo Roa Duterte (President
Duterte) to bury Ferdinand E. Marcos at the Libingan ng
mga Bayani; (ii) seeking to nullify the Memorandum dated
August 7, 2016 issued by Secretary of National Defense
Delfin Lorenzana (Secretary Lorenzana) and the Directive
dated August 9, 2016 of Rear Admiral Ernesto Enriquez
(Rear Admiral Enriquez) implementing President DuterteÊs
verbal orders; and (iii) praying for the issuance of a
temporary restraining order and/or preliminary injunction.
The facts that frame these consolidated cases are as
follows:
After World War II, the Republic Memorial Cemetery
was established in Fort William McKinley10 as a burial

place for Filipino soldiers who died during the war.11 On

October 23, 1954, Executive Order No. 7712 was issued by
Former President Ramon Magsaysay (Former President
Magsaysay). The Executive Order directed the remains of
all Filipino soldiers who died in the war be removed from
their places of burial and transferred to the Republic
Memorial Cemetery, since „in the national observance of
the occasion honoring the memory of those war dead, it is
_______________
7 Petition (G.R. No. 225973), Petition (G.R. No. 226117) and Petition
(G.R. No. 226120).
8 Petition (G.R. No. 225973), Petition (G.R. No. 225984), Petition
(G.R. No. 226097), Petition (G.R. No. 226116), Petition (G.R. No. 226117)
and Petition (G.R. No. 226120).
9 Petition (G.R. No. 226116).
11 Memorandum (G.R. No. 226097), p. 8.
12 TRANSFERRING THE REMAINS OF WAR DEAD INTERRED AT BATAAN
MEMORIAL CEMETERY, BATAAN PROVINCE AND AT OTHER PLACES IN THE
PHILIPPINES TO THE REPUBLIC MEMORIAL CEMETERY AT FORT WM MCKINLEY,

RIZAL PROVINCE (1954).
495
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Ocampo vs. Enriquez
fitting and proper that their remains be interred in one

national cemetery.‰13
On October 27, 1954, through Proclamation No. 86,
Former President Magsaysay renamed the Republic
Memorial Cemetery to Libingan ng mga Bayani as the
name „Republic Memorial Cemetery . . . is not symbolic of
the cause for which our soldiers have died, and does not
truly express the nationÊs esteem and reverence for her war
dead.‰14
On May 28, 1967, Former President Ferdinand E.

Marcos issued Proclamation No. 208, reserving a portion of

land in the Fort Bonifacio Military Reservation for national
shrine purposes.15
On January 24, 1973, Ferdinand E. Marcos issued
Presidential Decree No. 105, declaring national shrines to
be hallowed places and punishing their desecration, which
included the acts of „disturbing their peace and serenity by
digging, excavating, defacing, causing unnecessary noise
and committing unbecoming acts within the premises of
said National Shrines[.]‰16
On April 9, 1986, the Armed Forces of the Philippines
issued AFP Regulations No. 161-373,17 which prescribed
the allocation of cemetery plots at the Libingan ng mga
Bayani. This was amended on March 27, 1998 by AFP
Regulations No. 161-374,18 and then again on September
11, 2000 by AFP Regulations No. 161-375.19 Both
amendments were issued by the Former Secretaries of
National Defense.20
In 1989, Ferdinand E. Marcos passed away in Hawaii
while in exile.21 Thereafter, in 1992, Former President
Fidel V. Ramos (Former President Ramos), on behalf of
government, signed an agreement with the Marcos Family
pertaining to the return of Ferdinand E. MarcosÊ re-
_______________
13 Exec. Order No. 77 (1954), 4th whereas clause.

14 Proc. No. 86 (1954).
15 Proc. No. 208 (1967).
16 Pres. Decree No. 105 (1973).
18 Id., Annex 6.
19 Id., Annex 7.
21 Id., at p. 11.
496

Ocampo vs. Enriquez
mains.22 Under this agreement, the Marcos Family was

allowed to fly Ferdinand E. MarcosÊ remains to the
Philippines from Hawaii, subject to the following
conditions: (1) that Ferdinand E. MarcosÊ remains would be
flown straight from Hawaii to Ilocos Norte; (2) that
Ferdinand E. Marcos would only be given honors befitting
a major of the Armed Forces of the Philippines; (3) that his
remains would not be permitted to be paraded around
Metro Manila; and (4) that the burial would be done in
Ilocos Norte, and not at the Libingan ng mga Bayani.23
However, before signing the agreement, and without
informing any representative of government, Imelda R.
Marcos crossed out the word „buried‰ and replaced it with
the words „temporarily interred.‰24 Former Secretary
Alunan, during the Oral Arguments on August 31, 2016,
stated that this was viewed by Former President Ramos as
a sign of bad faith:
SECRETARY ALUNAN:
The official agreement is what I personally, I officially submitted to

the President of the Philippines on August 19 which was altered by
Imelda Marcos. The following day, she sent her version of the
Memorandum of Agreement that she signed without my signature
but which was disregarded by the President. In fact, if I may share,
the comment of the President when he saw the words temporarily
interred was that, this was a sign of bad faith.25
During a press conference in May 2016, then President-

elect Duterte stated he would allow the burial of Marcos at
the Libingan ng mga Bayani:
„Look, there is the courts. Pumunta kayo ng korte kasi yung

taong hinahabol niyo, cadaver na (Go to the courts because the
person youÊre after is already a cadaver). What do you want more
from the guy? Patay nga (HeÊs already dead) . . . . Sabi niyo si
Marcos, hindi dapat diyan (ilibing) (You said that Marcos should
not be buried there). That is (on) the question of his abuses. It is
something

_______________
22 Id.
23 Id., at pp. 11-12.
24 Id., at p. 12.
25 Id., at p. 13.
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Ocampo vs. Enriquez
that is attached to his persona forever. Marcos might not really be a

hero, I accept that proposition, maybe. But certainly he was a
soldier,‰ Duterte said.
....
„In addition to being a president, he was a soldier. So yung sinabi

mo noong dinakip ng martial law, nandiyan ang korte (So those who
were arrested during the martial law, the courts are there for you).
ItÊs just a matter of distributing the award. So anong problema?
Patay na yung tao. Anong gusto niyo? (So what is the problem? The
guy is already dead. What do you want?) You want the cadaver to be
burned? Will that satisfy your hate?‰ he added.
....
„Alam mo kapag nagbitaw ako ng salita, yun na yun.

Magpakamatay na ako diyan (If I have already uttered the words,
thatÊs it already. I am willing to stake my life on it). I will do things
that I promised to do. I will not die if I do not become President. I
will stake my honor, my life, and the presidency itself. Bantayan
niyo ang salita ko (Pay attention to my words),‰ Duterte said.26
President Duterte reiterated his position on Ferdinand

E. MarcosÊ burial sometime in August 2016, stating that
„[a]s a former soldier and former [P]resident of the
Philippines, [he] [saw] nothing wrong in having Marcos

buried at the Libingan ng mga Bayani.‰27

On July 11, 2016, President Duterte gave verbal orders
to respondent Secretary Lorenzana to carry out the
interment of Ferdinand E. Marcos at the Libingan ng mga
Bayani.28
In response to President DuterteÊs pronouncements, the
National Historical Commission published a study entitled
„Why Ferdinand Marcos Should Not Be Buried at the
Libingan ng mga Bayani‰29 on July 12,
_______________
26 Id., at pp. 13-14.

27 Id., at p. 14.
29 National Historical Commission of the Philippines, Why
Ferdinand Marcos Should Not Be Buried at the Libingan ng mga Bayani,
July 12, 2016
<https://drive.google.com/file/d/0B9c6mrxI4zoYS2I0UWFENEp6TkU/view>
(visited November 7, 2016).
498

Ocampo vs. Enriquez
2016.30 The National Historical Commission reported that

Ferdinand E. MarcosÊ military records were not deserving
of the honors that would be bestowed upon him should he
be buried at the Libingan ng mga Bayani as they were
„fraught with myths, factual inconsistencies, and lies.‰ In
particular, the National Historical Commission found that:
1. Mr. Marcos lied about receiving U.S. medals: Distinguished

Service Cross, Silver Star, and Order of the Purple Heart, which he
claimed as early as about 1945.
2. His guerilla unit, the Ang Mga Maharlika, was never officially
recognized and neither was his leadership of it.
3. U.S. officials did not recognize Mr. MarcosÊs rank promotion

from Major in 1944 to Lt. Col. by 1947.

4. Some of Mr. MarcosÊs actions as a soldier were officially called
into question by upper echelons of the U.S. military, such as his
command over the Alias Intelligence Unit (described as usurpation),
his commissioning of officers (without authority), his abandonment
of USAFIP-NL presumably to build an airfield for Gen. Roxas, his
collection of money for the airfield (described as „illegal‰), and his
listing of his name on the roster of different units (called a
„malicious criminal act‰).31
Despite the National Historical CommissionÊs report, on

August 7, 2016, Secretary Lorenzana issued the Lorenzana
Memorandum directing respondent Armed Forces of the
Philippines Chief of Staff General Ricardo R. Visaya
(General Visaya) „to undertake the necessary planning and
preparations to facilitate the coordination of all agencies
concerned‰ and to „coordinate closely with the Marcos
family‰ as to the transfer of MarcosÊ remains to the
Libingan ng mga Bayani.32 Secretary Lorenzana
designated the Philippine Veterans Affairs Office as the
office of primary responsibility for the Marcos burial.33
Reportedly, under this directive, General Visaya gave
instructions to Rear Admiral
_______________

31 Id., at p. 15.
32 Memorandum (G.R. No. 225973), p. 7; OSG Memorandum, p. 20.
499
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Ocampo vs. Enriquez
Enriquez, Deputy Chief of Staff for Reservist and Retiree

Affairs, pertaining to the Marcos burial.34

Thus, on August 12, 2016, the Armed Forces of the

Philippines, through its Army Chief of Public Affairs,
issued a press release entitled „Army receives interment
directive for former Pres. Marcos.‰ The press release stated
that the Philippine Army had received a directive from
Rear Admiral Enriquez under the command of General
Visaya for the Marcos burial at the Libingan ng mga
Bayani.35 It stated that under this directive, the Army was
required to provide vigil, bugler/drummer, firing party,
military host/pallbearers, escort and transportation, as well
as arrival and departure honors.36 It also stated that the
Army had designated a protocol officer to coordinate
laterally with the Marcos Family regarding the details of
the Marcos burial.37
President Duterte confirmed in various interviews that
he had allowed Ferdinand E. MarcosÊ interment at the
Libingan ng mga Bayani, as this was a promise he had
made during his campaign for the presidency.38
Thus, petitioners separately filed the present Petitions
for certiorari, prohibition, and mandamus, mainly seeking
that the execution of the Executive DepartmentÊs decision
to allow the burial of Ferdinand E. Marcos at the Libingan
ng mga Bayani be reversed, set aside, and enjoined.39 After
respondents filed their respective Comments, oral
arguments were held on August 31 and September 7, 2016.
The parties then filed their respective Memoranda.
II
The AFP Regulations are ultra vires. They violate

Republic Act No. 289, which is still an existing law.
Therefore, the verbal orders of the
_______________

35 Id., at p. 7.
36 Id., at p. 8.
37 Id.
38 Id.
39 Id.

500

Ocampo vs. Enriquez
President, the Lorenzana Memorandum, and the Enriquez

Orders based on the AFP Regulations are null and void.
Republic Act No. 28940 creates a National Pantheon „to
perpetuate the memory of all the Presidents of the
Philippines, national heroes and patriots for the inspiration
and emulation of this generation and of generations still
unborn[.]‰41 The National Pantheon is, by law, intended to
be the „burial place of their mortal remains.‰42 Thus:
SECTION 1. To perpetuate the memory of all the Presidents of

the Philippines, national heroes and patriots for the inspiration and
emulation of this generation and of generations still unborn, there
shall be constructed a National Pantheon which shall be the burial
place of their mortal remains.
The clear intention of the legislature in enacting

Republic Act No. 289 was to create a burial place to
perpetuate the memory of the Presidents of the
Philippines, national heroes, and patriots, for the
inspiration and emulation of generations of the Filipino
People.43 An examination of the evolution of what is now
known as the Libingan ng mga Bayani shows that it is
precisely the burial ground covered by Republic Act No.
289.
The Libingan ng mga Bayani, similar to the National
Pantheon, is there to hold the remains and „perpetuate the
memory of all the Presidents of the Philippines, national
heroes and patriots for the inspiration and emulation of
this generation and generations still unborn.‰
Republic Act No. 289 does not specify what the name of
the National Pantheon shall be. The Libingan ng mga
Bayani may not be called the „National Pantheon,‰ but
nothing in Republic Act No. 289 prohibits naming the
National Pantheon as the Libingan ng mga Bayani.

Republic Act No. 289 does not specify where the

National Pantheon is to be located. Under Republic Act No.
289, the suitable site is yet to be determined by a Board,
who has the duty:
_______________
40 AN ACT PROVIDING FOR THE CONSTRUCTION OF A NATIONAL PANTHEON FOR

PRESIDENTS OF THE PHILIPPINES, NATIONAL HEROES AND PATRIOTS OF THE
COUNTRY.
41 Id., Sec. 1.
42 Id.
43 Id.
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Ocampo vs. Enriquez
(a) To determine the location of a suitable site for the construction of

the said National Pantheon, and to have such site acquired,
surveyed and fenced for this purpose and to delimit and set aside
a portion thereof wherein shall be interred the remains of all
Presidents of the Philippines and another portion wherein the
remains of heroes, patriots and other great men of the country
shall likewise be interred[.]44 (Emphasis supplied)
Wherever the mortal remains of Presidents of the

Philippines, national heroes, and patriots are buried is,
thus, the burial place envisioned by the legislature, subject
to the provisions of Republic Act No. 289.
The space where the Libingan ng mga Bayani is now
located was once the Republic Memorial Cemetery, which
initially served as burial grounds for the war dead.45
Prior to the lawÊs enactment, in 1947, the Republic
Memorial Cemetery was established as a burial ground for
soldiers who died during World War II.
While Republic Act No. 289 was effective and apparently

without the action of the Board of National Pantheon,

Former President Magsaysay issued Executive Order No.
77, transferring the remains of the war dead to the
Republic Memorial Cemetery:
WHEREAS, the Armed Forces of the Philippines is maintaining the

Bataan Memorial Cemetery in the province of Bataan and the
Republic Memorial Cemetery in Fort Wm McKinley, Rizal Province,
thereby splitting the expenses of maintenance and upkeep therefor;
WHEREAS, there are other remains of our war dead interred at

other places throughout the Philippines which are not classified as
cemeteries;
WHEREAS, the said cemetery in Bataan province and the other

places in the Philippines where our dead war heroes are interred
are
_______________
44 Id., Sec. 2(a).

502

Ocampo vs. Enriquez
not easily accessible to their widows, parents, children, relatives

and friends; and
WHEREAS, in the national observance of the occasion honoring the

memory of those war dead, it is fitting and proper that their
remains be interred in one national cemetery;
NOW, THEREFORE, I, RAMON MAGSAYSAY, President of the

Philippines, by virtue of the powers vested in me by law, do hereby
order that the remains of the war dead interred at the Bataan
Memorial Cemetery, Bataan province, and at other places in the

Philippines, be transferred to, and reinterred at, the Republic

Memorial Cemetery at Fort Wm McKinley, Rizal Province.
This change · relocating the nationÊs war dead to one

national cemetery · created a burial ground that, by its
express purpose, necessarily glorifies and honors those
buried as war heroes. This reinterment of all of the dead
war heroes to the Republic Memorial Cemetery
transformed it the National Pantheon, covered by Republic
Act No. 289.
On October 27, 1954, Former President Magsaysay
issued Proclamation No. 86, changing the name of the
Republic Memorial Cemetery to express the nationÊs
esteem and reverence for those buried in the cemetery, the
war dead:
WHEREAS, the name „Republic Memorial Cemetery‰ at Fort Wm

McKinley, Rizal province, is not symbolic of the cause for which our
soldiers have died, and does not truly express the nationÊs esteem
and reverence for her war dead;
NOW, THEREFORE, I, Ramon Magsaysay, President of the

declare that the „Republic Memorial Cemetery‰ shall henceforth be
called „LIBINGAN NG MGA BAYANI.‰
IN WITNESS WHEREOF, I have hereunto set my hand and caused

the seal of the Republic of the Philippines to be affixed.
Proclamation No. 86 purposefully and expressly altered

the nature of the Republic Memorial Cemetery. The name
was changed specifically to honor those who died in the
war, as „bayani,‰ the heroes of war.
503
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On July 12, 1957, Former President Carlos P. Garcia

issued Proclamation No. 423, which reserved for military
purposes, under the administration of the Chief of Staff of
the Armed Forces of the Philippines, certain parcels of land
in Pasig, Taguig, Parañaque, Province of Rizal, and Pasay
City.46 Under this Proclamation, the Armed Forces of the
Philippines issued various regulations expanding the scope
of the types of individuals who could be buried at the
Libingan ng mga Bayani. Thus, the nature of what once
was the Republic Memorial Cemetery changed further. The
most recent AFP Regulations, AFP Regulations No. 161-
375 (2000), invoked by public respondents, reads:
1. General: This regulation prescribes the allocation of cemetery

plots and construction of grave markers at the Libingan ng mga
Bayani (LNMB).
....
3. Who are qualified to be interred in the Libingan ng mga

Bayani: The remains of the following deceased persons are qualified
and, therefore, authorized to be interred in the Libingan ng mga
Bayani:
reservists and CAFGU Active Auxiliary (CAA) who died in
combat operations or combat related activities;
g. Former members of the AFP who laterally entered or joined
the Philippine Coast Guard (PCG) and the Philippine
National Police (PNP);
h. Veterans of Philippine Revolution of 1890, WWI, WWII and
recognized guerrillas;
_______________
46 Proc. No. 423 (1957).

504

Ocampo vs. Enriquez
i. Government Dignitaries, Statesmen, National Artists and

other deceased persons whose interment or reinterment has
been approved by the Commander-in-Chief, Congress or the
Secretaries of National Defense and Chief of Staff are
authorized to be interred at the LNMB.47
Again, the Republic Memorial Cemetery was created

specifically as a burial place for the war dead,48 and then
renamed to Libingan ng mga Bayani with the express
purpose of revering the nationÊs war dead.49 Now,
progressing from the renaming, and under AFP
Regulations, the cemetery is no longer primarily a
cemetery for the nationÊs war dead. Remains of individuals
who have nothing to do with the military · much less any
war · have been interred there. This includes, among
others, three (3) former Chief Justices of this Court,50 as
well as Former Presidents Elpidio R. Quirino and Diosdado
P. Macapagal.51
As admitted by the Solicitor General, the Armed Forces
of the Philippines has determined that those who have
contributed to society, despite not having served as
soldiers, may be buried at the Libingan ng mga Bayani:
JUSTICE LEONEN:
If the Libingan ng mga Bayani is a military cemetery, why is it

that there is „national artist‰ also included in the order?
SOLICITOR GENERAL CALIDA:
Because they fall under the classification of probably dignitaries,

Your Honors.
_______________

48 Exec. Order No. 77 (1954).
49 Proc. No. 86 (1954).
50 TSN, Oral Arguments, September 7, 2016, p. 142.
51 Id., at p. 57.
505
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Ocampo vs. Enriquez
JUSTICE LEONEN:
Why single out national artists?
Because they have contributed something to society, Your

Honor.
JUSTICE LEONEN:
Maybe I will tell you because there is a law that actually

allows national artists to be interred in the Libingan ng mga
Bayani, is that not correct?52
Unlike for national artists, the expansion of the coverage

of the Libingan ng mga Bayani is without cover of law and,
in some cases, contrary to Republic Act No. 289. For
instance, the inclusion of widows of Former Presidents or
widows of Former Secretaries of National Defense at the
Libingan ng mga Bayani has no purpose and is contrary to
the nature of the Libingan.
The change of its name from Republic Memorial
Cemetery to Libingan ng mga Bayani and the scope of
individuals that could be buried through subsequent AFP

Regulations are operative facts that put the cemetery

under the coverage of Republic Act No. 289. What once may
have been a military cemetery has been converted, over
time, into what is the National Pantheon envisioned by the
legislature when it passed Republic Act No. 289.
It is true that in 1953, Proclamation No. 431, entitled
Reserving as Site for the National Pantheon a Certain
Parcel of Land Situated in Quezon City, reserved a parcel
of land in Quezon City for the construction of the National
Pantheon. However, this was subsequently revoked by
Proclamation No. 42, entitled Revoking Proclamation Nos.
422 and 431, both Series of 1953, and Reserving the
Parcels of Land Embraced Therein Situated in Quezon City
for National Park Purposes to be Known as Quezon
Memorial Park. There is no National Pantheon in Quezon
City.
The revoked attempt to locate the National Pantheon in
Quezon City does not amend Republic Act No. 289. Quezon
City is not a definitive
_______________
52 Id., at p. 152.
506

Ocampo vs. Enriquez
part of the National Pantheon, and Proclamation No. 431 is

wholly irrelevant to the validity of Republic Act No. 289.
The ponencia suggests that the lack of appropriation
from Congress for the creation of a National Pantheon
shows a „legislative will not to pursue‰ the establishment of
a National Pantheon. It further suggests that „[p]erhaps,
the Manila North Cemetery, the Manila South Cemetery,
and other equally distinguished private cemeteries already
serve the noble purpose but without cost to the limited
funds of the government.‰53

The failure to provide appropriation for a law does not

repeal the law. Moreover, the failure to provide the
appropriate budget for the execution of a law is a violation
of the PresidentÊs duty to faithfully execute all laws.
Certainly, the lack of appropriation does not suspend
standards laid down by the legislature in a valid and
subsisting law.
The legislative policy in Republic Act No. 289 includes
delegating the powers related to the National Pantheon to
a specially constituted board composed of the Secretary of
the Interior, the Secretary of Public Works and
Communications, the Secretary of Education, and two (2)
private citizens appointed by the President, with the
consent of the Commission on Appointments (Board).54
Under Republic Act No. 289, it is the Board · not the
President directly nor the Secretary of National Defense ·
that has the power to perform all the functions necessary to
carry out the purposes of the law.55
The Board is statutorily empowered to, among others:
(a) To determine the location of a suitable site. . . .

(b) To order and supervise the construction thereon of uniform
monuments, mausoleums, or tombs. . . . [and]
(c) To cause to be interred therein the mortal remains of all
Presidents of the Philippines, the national heroes and patriots[.]
_______________
53 Ponencia, p. 271.
54 Rep. Act No. 289, Sec. 2.
55 Id.
507
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Ocampo vs. Enriquez
However, the Lorenzana Memorandum and the

Enriquez Orders to have the remains of Ferdinand E.

Marcos transferred to the Libingan ng mga Bayani, todayÊs

National Pantheon, were made without the authority of the
Board. Consequently, the Lorenzana Memorandum and the
Enriquez Orders are void for being ultra vires. There is no
showing that the Board recommended to the President the
burial of the remains of Ferdinand E. Marcos at the
Libingan. The issuances of public respondents are ultra
vires and have no effect whatsoever. The continued
implementation of these issuances would be an act beyond
their jurisdiction, or grave abuse of discretion, because they
violate existing law.
In public respondentsÊ opening statement, the Solicitor
General argues that the provisions of Republic Act No. 289
do not apply to the Libingan ng mga Bayani because
Republic Act No. 289 is a „defunct law,‰ established by the
clear expressions of the legislative and executive will to
abandon Republic Act No. 289 altogether, namely: (1) the
inaction on the part of Congress, (2) the withdrawal of the
reservation of land for the Pantheon by President
Magsaysay.56
This is not a valid legal argument.
A law cannot be repealed by inaction or tradition.
Neither can a law be repealed by a President. A President
who does not follow a law is a President that violates his or
her duties under the Constitution.
Article 7 of the Civil Code provides that laws are
repealed only by subsequent ones, and their violation or
nonobservance shall not be excused by disuse, custom, or
practice to the contrary. This Court has repeatedly held
that only a law can repeal another law,57 and a law subsists
when it has not been repealed nor expressly amended by
any other law.58 Likewise, „repeals by implication are not
favored and will not be decreed, unless it is manifest that
the legislature so intended.‰59
_______________
56 TSN, Oral Arguments, September 7, 2016, p. 14.

57 Palanca v. Court of Appeals, G.R. No. 106685, December 2, 1994,
238 SCRA 593, 601 [Per J. Quiason, En Banc].
58 See United States v. Chan Tiao, 37 Phil. 78, 84 (1917) [Per J.
Torres, En Banc].

59 National Power Corporation v. Province of Lanao del Sur, 332 Phil.

303, 323; 264 SCRA 271, 290 (1996) [Per J. Panganiban, En Banc].
508

Ocampo vs. Enriquez
No law has been passed amending or repealing Republic

Act No. 289, and no manifest intention on the part of the
legislature to repeal Republic Act No. 289 has been shown.
It cannot be disputed; therefore, Republic Act No. 289 is a
valid and binding law.
Further, the effectivity of a law cannot be made to
depend on a future event or act. Otherwise, it would „rob
the Legislature of the power to act wisely for the public
welfare whenever a law is passed relating to a state of
affairs not yet developed, or to things future and impossible
to fully know.‰ In Securities and Exchange Commission v.
Interport Resources Corporation:60
It is well-settled that every law has in its favor the presumption

of validity. Unless and until a specific provision of the law is
declared invalid and unconstitutional, the same is valid and binding
for all intents and purposes. The mere absence of implementing
rules cannot effectively invalidate provisions of law, where a
reasonable construction that will support the law may be given. In
People v. Rosenthal, this Court ruled that:
In this connection we cannot pretermit reference to the rule

that „legislation should not be held invalid on the ground of
uncertainty if susceptible of any reasonable construction that
will support and give it effect. An Act will not be declared
inoperative and ineffectual on the ground that it furnishes no
adequate means to secure the purpose for which it is passed,
if men of common sense and reason can devise and provide
the means, and all the instrumentalities necessary for its
execution are within the reach of those intrusted therewith.‰
In Garcia v. Executive Secretary, the Court underlined the

importance of the presumption of validity of laws and the careful

consideration with which the judiciary strikes down as invalid acts
of the legislature:
The policy of the courts is to avoid ruling on constitutional

questions and to presume that the acts of the political
departments are valid in the absence of a clear and
_______________
60 588 Phil. 651; 567 SCRA 354 (2008) [Per J. Chico-Nazario, En

Banc].
509
VOL. 807, NOVEMBER 8, 2016 509

Ocampo vs. Enriquez
unmistakable showing to the contrary. To doubt is to sustain.

This presumption is based on the doctrine of separation of
powers which enjoins upon each department a becoming
respect for the acts of the other departments. The theory is
that as the joint act of Congress and the President of the
Philippines, a law has been carefully studied and determined
to be in accordance with the fundamental law before it was
finally enacted.
The necessity for vesting administrative authorities with power

to make rules and regulations is based on the impracticability of
lawmakers providing general regulations for various and varying
details of management. To rule that the absence of implementing
rules can render ineffective an act of Congress, such as the Revised
Securities Act, would empower the administrative bodies to defeat
the legislative will by delaying the implementing rules. To assert
that a law is less than a law, because it is made to depend on a
future event or act, is to rob the Legislature of the power to act wisely
for the public welfare whenever a law is passed relating to a state of
affairs not yet developed, or to things future and impossible to fully
know. It is well-established that administrative authorities have the
power to promulgate rules and regulations to implement a given

statute and to effectuate its policies, provided such rules and

regulations conform to the terms and standards prescribed by the
statute as well as purport to carry into effect its general policies.
Nevertheless, it is undisputable that the rules and regulations
cannot assert for themselves a more extensive prerogative or
deviate from the mandate of the statute. Moreover, where the
statute contains sufficient standards and an unmistakable intent,
as in the case of Sections 30 and 36 of the Revised Securities Act,
there should be no impediment to its implementation.61 (Emphasis
supplied)
The effectivity of Republic Act No. 289 does not depend

on a Board being constituted or on the naming of a plot of
land as the ÂÂNational Pantheon.‰ If a government agency
creates a burial place that clearly and factually comprises
the burial place contemplated in Republic Act No. 289, the
legislative policy must still govern.
_______________
61 Id., at pp. 673-675; pp. 379-380, citing 25 R.C.L., pp. 810, 811.
510

Ocampo vs. Enriquez
The majorityÊs position is that Republic Act No. 289 can

be simply ignored by the President. The President,
however, will gravely abuse his discretion when he does.
The Solicitor General insists that the disparate histories
of the site of the Libingan ng mga Bayani and Republic Act
No. 289 reveal that the two are unrelated. Hence, the
provisions of Republic Act No. 289 do not apply to the
Libingan ng mga Bayani.62
The Solicitor General starts with a narration of the
history of the land where the Libingan ng mga Bayani, as
nothing but a renamed Republic Memorial Cemetery,63

intended only to be a national military cemetery for the

interment of those who died during the war.64 He then
proceeds to insist that the Libingan ng mga Bayani has
been operating as a military shrine and cemetery.65 In his
view, the National Pantheon, on the other hand, was never
constructed.66 Its intended site was in Quezon City under
Proclamation No. 431.67 However, in 1954, this site was
later withdrawn under Proclamation No. 42.68
The Solicitor General implies that simply because
Proclamation No. 431 was later withdrawn by another
presidential proclamation, the law has ceased to become
effective.
The Solicitor General then argues that the standards
laid down in Republic Act No. 289 do not apply to the
Libingan ng mga Bayani. Public respondents point out that
the standards under Republic Act No. 289 are not stated in
any of the issuances pertinent to the Libingan ng mga
Bayani, namely: Proclamation No. 208, Presidential Decree
No. 1076, or Executive Order No. 292.69 Thus, as the
National Pantheon was never constructed, public
respondents claim that „the clear inference is that former
President Marcos and President Corazon Aquino did not
intend
_______________

63 Id.
64 Id., at p. 55.
65 Id.
66 Id.
67 Id., at p. 54.
68 Id.
69 Id., at p. 56.
511
VOL. 807, NOVEMBER 8, 2016 511

Ocampo vs. Enriquez

to adopt said standards for those to be interred at the

Libingan ng mga Bayani.‰70
The position of the Solicitor General is legally untenable
and logically unsound. Presidents who do not follow the law
do not repeal that law. Laws can only be repealed by a
subsequent law. Again, that Republic Act No. 289 was
ignored in the past does not give legal justification for the
present administration to likewise violate the law.
Republic Act No. 289 does not specify the location of the
National Pantheon. It could be anywhere. The defining
characteristic of the National Pantheon is that it shall be
the burial place of the Presidents of the Philippines,
national heroes, and patriots.71
The AFP Regulations, on the other hand, provide that
the remains of the following may be buried at the Libingan
ng mga Bayani: (1) Medal of Valor Awardees; (2) Presidents
or Commanders-in-Chief of the Armed Forces of the
Philippines; (3) Secretaries of National Defense; (4) Chiefs
of Staff of the Armed Forces of the Philippines; (5) General
flag officers of the Armed Forces of the Philippines; (6)
Active and retired military personnel of the Armed Forces
of the Philippines; (7) Veterans of the Philippine Revolution
of 1896, World War I, World War II, and recognized
guerrillas; (8) government dignitaries, statesmen, national
artists, and other deceased persons whose interment or
reinterment has been approved by the Commander-in-
Chief, Congress, or the Secretary of National Defense; and
(9) Former Presidents, Secretaries of Defense, CSAFP,
generals/flag officers, dignitaries, statesmen, national
artists, widows of former Presidents, Secretaries of
National Defense, and Chiefs of Staff.72
A plain reading of the AFP Regulations reveals that
although it does not refer to Republic Act No. 289, it
nonetheless provides for the burial of individuals who
would properly be covered by Republic Act No. 289. The
AFP Regulations define a burial place, which is the burial
place provided for under Republic Act No. 289.
_______________
70 Id.
71 Rep. Act No. 289, Sec. 1.

512

Ocampo vs. Enriquez
The executive cannot avoid carrying out a valid and

subsisting law by passing regulations substantially
covering a matter that is already a law and excuse itself
from complying with the law on the premise that it · a law
that the executive never implemented · is now defunct.
Under Republic Act No. 289, only the Board is
authorized to set aside portions of the National Pantheon
where the remains of the Presidents of the Philippines,
national heroes, and patriots shall be interred,73 to cause to
be interred in the National Pantheon the mortal remains of
Presidents of the Philippines, national heroes, and
patriots,74 and to perform such other functions as may be
necessary to carry out the purposes of this law.75
Having been issued by Secretary Lorenzana, General
Visaya, and Rear Admiral Enriquez without the authority
of the Board, the General Lorenzana Memorandum and the
Enriquez Orders are void for being ultra vires.
III
Assuming without accepting that respondents Secretary

Lorenzana, General Visaya, and Rear Admiral Enriquez
had the authority to determine who may be interred at
Libingan ng mga Bayani, the Lorenzana Memorandum and
the Enriquez Orders are nonetheless invalid.
Under Section 1 of Republic Act No. 289, those buried at
the Libingan ng mga Bayani must have led lives worthy of
„inspiration and emulation.‰
Ferdinand E. Marcos does not meet this standard.
Our jurisprudence clearly shows that Ferdinand E.
Marcos does not even come close to being one who will
inspire. His example should not be emulated by this

generation, or by generations yet to come.
_______________
73 Rep. Act No. 289, Sec. 2(a).

74 Id., Sec. 2(c).
75 Id., Sec. 2(e).
513
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Ocampo vs. Enriquez
Ferdinand E. Marcos has been characterized as an

authoritarian by this Court in nine (9) Decisions76 and 9
Separate Opinions.77 He was called a dictator in 19
Decisions78 and 16 Separate Opinions.79 That he
_______________
76 Marcos v. Manglapus, 258 Phil. 479; 177 SCRA 668 (1989) [Per J.
Cortes, En Banc]; Galman v. Sandiganbayan, 228 Phil. 42; 144 SCRA 43
(1986) [Per CJ. Teehankee, En Banc]; Fortun v. Macapagal-Arroyo, 684
Phil. 526; 668 SCRA 504 (2012) [Per J. Abad, En Banc]; People v.
Pacificador, 406 Phil. 774; 354 SCRA 310 (2001) [Per J. De Leon, Jr.,
Second Division]; Buscayno v. Enrile, 190 Phil. 7; 102 SCRA 7 (1981) [Per
CJ. Fernando, En Banc]; Republic v. Sandiganbayan, 453 Phil. 1059; 406
SCRA 190 (2003) [Per J. Corona, En Banc]; Republic v. Villarama, Jr.,
344 Phil. 288; 278 SCRA 736 (1997) [Per J. Davide Jr., Third Division];
Salazar v. Achacoso, 262 Phil. 160; 183 SCRA 145 (1990) [Per J.
Sarmiento, En Banc]; Biraogo v. Philippine Truth Commission of 2010,
651 Phil. 374; 637 SCRA 78 (2010) [Per J. Mendoza, En Banc].
77 J. Gutierrez, Jr., Dissenting Opinion in Marcos v. Manglapus, id.,
at pp. 513-526; pp. 702-714; J. Francisco, Concurring and Dissenting
Opinion in Dans, Jr. v. People, 349 Phil. 434, 477-513; 285 SCRA 504,
571-579 (1998) [Per J. Romero, Third Division]; J. Puno, Concurring and
Dissenting Opinion in Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto, 375 Phil. 697, 748-754; 317 SCRA 272, 323-327
(1999) [Per CJ. Davide, Jr., En Banc]; J. Vitug, Dissenting Opinion in

Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 412

Phil. 308, 347-356; 359 SCRA 698, 733-741 (2001) [Per J. Panganiban,
En Banc]; J. Sarmiento, Dissenting Opinion in Umil v. Ramos, 279 Phil.
266, 332-344; 202 SCRA 251, 297-309 (1991) [Per Curiam, En Banc]; J.
Davide, Separate Opinion in PeopleÊs Initiative for Reform, Modernization
and Action v. Commission on Elections, G.R. No. 129754, September 23,
1997 [Unsigned Resolution, En Banc]; J. Puno, Separate Opinion in
Republic v. Sandiganbayan, 454 Phil. 504, 551-630; 407 SCRA 10, 61-134
(2003) [Per J. Carpio, En Banc]; J. Sarmiento, Dissenting Opinion in
Baylosis v. Chavez, Jr., 279 Phil. 448, 470-483; 202 SCRA 405, 421-433
(1991) [J. Narvasa, En Banc]; J. Teehankee, Concurring Opinion in Tan
v. Commission on Elections, 226 Phil. 624, 648-651; 142 SCRA 727, 752-
754 (1986) [Per J. Alampay, En Banc].
78 Marcos v. Manglapus, id.; Republic v. Sandiganbayan, 565 Phil.
172; 540 SCRA 431 (2007) [Per J. Quisumbing, Second Division];
Republic v. Estate of Hans Menzi, 512 Phil. 425; 476 SCRA 20 (2005) [Per
J. Tinga, En Banc]; Fortun v. Macapagal-Arroyo, supra; Frivaldo v.
Commission on Elections, 255 Phil. 934; 174 SCRA 245 (1989) [Per J.
Cruz, En Banc]; First Philippine Holdings Corp. v. Trans Middle East
(Phils.) Equities, Inc., 622 Phil. 623; 607 SCRA 605 (2009) [Per J. Chico-
Nazario, Third Division]; Associated Bank v. Montano, Sr., 619 Phil. 128;
514

Ocampo vs. Enriquez
_______________
604 SCRA 134 (2009) [Per J. Nachura, Third Division]; National

Development Company v. Philippine Veterans Bank, 270 Phil. 349; 192
SCRA 257 (1990) [Per J. Cruz, En Banc]; Dizon v. Eduardo, 242 Phil.
200; 158 SCRA 470 (1988) [Per CJ. Teehankee, En Banc]; People v.
Pacificador, supra note 76; Philippine National Construction Corporation
v. Pabion, 377 Phil. 101; 320 SCRA 188 (1999) [Per J. Panganiban, Third
Division]; Frivaldo v. Commission on Elections, 327 Phil. 521; 257 SCRA
727 (1996) [Per J. Panganiban, En Banc]; Carpio-Morales v. Court of
Appeals (Sixth Division), G.R. No. 217126, November 10, 2015, 774 SCRA
431 [Per J. Perlas-Bernabe, En Banc]; Heirs of Gregorio Licaros v.

Sandiganbayan, 483 Phil. 510; 440 SCRA 483 (2004) [Per J. Panganiban,
Third Division]; Philippine Free Press, Inc. v. Court of Appeals, 510 Phil.
411; 473 SCRA 639 (2005) [Per J. Garcia, Third Division]; Taruc v.
Ericta, 250 Phil. 65; 168 SCRA 63 (1989) [Per J. Paras, En Banc]; Marcos
v. Sandiganbayan (First Division), 357 Phil. 762; 297 SCRA 95 (1998)
[Per J. Purisima, En Banc]; Republic v. Sandiganbayan, supra note 76;
Biraogo v. Philippine Truth Commission, supra note 76.
79 J. Cruz, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil.
547, 555; 178 SCRA 760, 765-766 (1989) [Per Curiam, En Banc]; J.
Padilla, Dissenting Opinion in Marcos v. Manglapus, id., at pp. 556-558;
pp. 767-768; J. Sarmiento, Dissenting Opinion in Marcos v. Manglapus,
id., at pp. 559-560; pp. 722-729; CJ. Teehankee, Concurring Opinion in
Olaguer v. Military Commission No. 34, 234 Phil. 144, 164-179; 150
SCRA 144, 166-180 (1987) [Per J. Gancayco, En Banc]; J. Davide,
Dissenting Opinion in Tabuena v. Sandiganbayan, 335 Phil. 795, 878-
886; 268 SCRA 332, 404-414 (1997) [Per J. Francisco, En Banc]; J.
Panganiban, Dissenting Opinion in Tabuena v. Sandiganbayan, id., at
pp. 911-913; pp. 438-441; J. Kapunan, Dissenting Opinion in Lacson v.
Perez, 410 Phil. 78, 95-107; 357 SCRA 756, 767-779 (2001) [Per J. Melo,
En Banc]; J. Cruz, Separate Opinion in Umil v. Ramos, supra note 77 at
pp. 306-311; pp. 280-284; J. Sarmiento, Dissenting Opinion in Umil v.
Ramos, supra note 77 at pp. 332-344; pp. 297-309; J. Sandoval-Gutierrez,
Dissenting Opinion in Sanlakas v. Executive Secretary, 466 Phil. 482,
534-548; 421 SCRA 656, 690-702 (2004) [Per J. Tinga, En Banc]; J.
Sandoval-Gutierrez, Concurring Opinion in Lambino v. Commission on
Elections, 536 Phil. 1, 154-186; 505 SCRA 160, 384-415 (2006) [Per J.
Carpio, En Banc]; J. Puno, Separate Opinion in Republic v.
Sandiganbayan, supra note 77; J. Cruz, Dissenting and Concurring
Opinion in Umil v. Ramos, 265 Phil. 325, 355; 187 SCRA 311, 334-335
(1990) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in Umil
v. Ramos, id., at pp. 355-365; pp. 337-346; CJ. Panganiban, Concurring
Opinion in David v. Macapagal-Arroyo, 522 Phil. 705, 812-813; 489 SCRA
160, 276-277 (2006) [Per J. Sandoval-
515
VOL. 807, NOVEMBER 8, 2016 515

Ocampo vs. Enriquez

was unceremoniously deposed as President or dictator by a

direct act of the People was stressed in 16 Decisions80 and
six (6) Separate Opinions.81
_______________
Gutierrez, En Banc]; J. Cruz, Dissenting Opinion in Sarmiento, III v.

Mison, 240 Phil. 505, 541-546; 156 SCRA 549, 577-581 (1987) [Per J.
Padilla, En Banc].
80 Marcos v. Manglapus, id.; Republic v. Marcos-Manotoc, 681 Phil.
380; 665 SCRA 367 (2012) [Per J. Sereno, Second Division]; E. Razon,
Inc. v. Philippine Ports Authority, 235 Phil. 223; 151 SCRA 233 (1987)
[Per J. Fernan, En Banc]; Presidential Commission on Good Government
v. Peña, 243 Phil. 93; 159 SCRA 556 (1988) [Per CJ. Teehankee, En
Banc]; Liwayway Publishing, Inc. v. PCGG, 243 Phil. 864; 160 SCRA 716
(1988) [Per CJ. Teehankee, En Banc]; Quisumbing v. Sandiganbayan
(Fifth Division), 591 Phil. 633; 571 SCRA 7 (2008) [Per J. Carpio-
Morales, Second Division]; Samahang Manggagawa ng Rizal Park v.
NLRC, G.R. No. 94372, June 21, 1991, 198 SCRA 480 [Per J. Cruz, First
Division]; Republic v. Sandiganbayan, 499 Phil. 138; 460 SCRA 146
(2005) [Per J. Sandoval-Gutierrez, Third Division]; Philippine Coconut
Producers Federation, Inc. (COCOFED) v. Presidential Commission on
Good Government, 258-A Phil. 1; 178 SCRA 236 (1989) [Per J. Narvasa,
En Banc]; Cuenca v. Presidential Commission on Good Government, 561
Phil. 235; 535 SCRA 102 (2007) [Per J. Velasco, Jr., Second Division];
Romualdez v. RTC, Br. 7, Tacloban City, G.R. No. 104960, September 14,
1993, 226 SCRA 408 [Per J. Vitug, En Banc]; Sison v. People, 320 Phil.
112; 250 SCRA 58 (1995) [Per J. Puno, Second Division]; Philippine
Overseas Telecommunications Corporation (POTC) v. Africa, G.R. No.
184622, July 3, 2013, 700 SCRA 453 [Per J. Bersamin, First Division];
Vinzons-Magana v. Estrella, 278 Phil. 544; 201 SCRA 536 (1991) [Per J.
Paras, En Banc]; Republic v. Sandiganbayan (First Division), 310 Phil.
402; 240 SCRA 379 (1995) [Per CJ. Narvasa, En Banc]; Secretary of
Finance v. Ilarde, 497 Phil. 544; 458 SCRA 218 (2005) [Per J. Chico-
Nazario, En Banc].
81 CJ. Teehankee, Concurring Opinion in Bataan Shipyard &
Engineering Co., Inc. v. Presidential Commission on Good Government,
234 Phil. 180, 238-249; 150 SCRA 181, 241-252 (1987) [Per J. Narvasa,
En Banc]; J. Bersamin, Concurring Opinion in Republic v. Cojuangco, Jr.,
689 Phil. 149, 173-179; 674 SCRA 492, 509-516 (2012) [Per J. Abad, En
Banc]; CJ. Teehankee, Concurring Opinion in Tuason v. Register of
Deeds, Caloocan City, 241 Phil. 650, 663-665; 157 SCRA 613, 623-625

(1988) [Per J. Narvasa, En Banc]; J. Kapunan, Dissenting Opinion in

Lacson v. Perez, supra note 79 at pp. 95-107; pp. 767-779; J. Teehankee,
Concurring Opinion in Agcaoili v. Enrile, 226 Phil. 611, 622-624; 142
SCRA 714, 724-727 (1986) [Per J. Narvasa, En Banc]; J. Cruz,
Dissenting Opinion in Development Bank of the Philippines v. Pundogar,
G.R. No. 96921, January 29, 1993, 218 SCRA 118 [Per J. Romero, En
Banc].
516

Ocampo vs. Enriquez
This Court has also declared that the amount of

US$658,175,373.60, in Swiss deposits under the name of
the Marcoses, was ill-gotten wealth that should be forfeited
in favor of the State.82
For instance, a powerful portrait of the despotic power
exercised by Marcos during Martial Law was presented in
Dizon v. Eduardo:83
Senator Diokno passed away a year ago last February 27th. He,
together with the martyred Senator Benigno „Ninoy‰ Aquino Jr.
were the first victims of martial law imposed in September 1972 by
then President Ferdinand E. Marcos, destroying in one fell swoop
the PhilippinesÊ 75 years of stable democratic traditions and
established reputation as the showcase of democracy in Asia. They
were the first to be arrested in the dark of the night of September
22, 1972, as the military authorities spread out through the
metropolis upon orders of the President-turned-dictator to lock up
the opposition together with newspaper editors, journalists and
columnists and detain them at various army camps. What was the
martial law governmentÊs justification for the arrest and detention
of Diokno and Aquino? The governmentÊs return to their petitions
for habeas corpus claimed that they were „regarded as participants
or as having given aid and comfort Âin the conspiracy to seize
political and state power and to take over the government by force.Ê‰
The fact is that they just happened to be the foremost contenders
for the Presidency of the Republic in the scheduled November 1973

presidential elections, at which time Mr. Marcos would have

finished his second 4-year term and barred under the prevailing
1935 Constitution from running for a third term. . . .
....
Senator Ninoy Aquino underwent an even more tortuous ordeal.

He was charged on August 11, 1973 with murder, subversion and
illegal possession of firearms and found guilty and sentenced to
death by a military commission, notwithstanding his being a
civilian and the fact that said general offenses were allegedly
committed before the imposition of martial law, and could not fall
within the jurisdiction of military commissions, which are not
courts but mere ad-
_______________
82 Memorandum (G.R. No. 225973), p. 98, citing Republic v.

Sandiganbayan, supra note 77.
83 242 Phil. 200; 158 SCRA 470 (1988) [Per J. Teehankee, En Banc].
517
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juncts of the Commander-in-Chief to enforce military discipline. Mr.

Marcos had publicly pronounced the evidence against Ninoy as „not
only strong but overwhelming‰ in a nationwide press conference on
August 24, 1971 following the Plaza Miranda bombing three days
earlier of the LP proclamation meeting, yet had not charged him
before the civil courts. Ninoy had contended correctly but in vain
that he had been publicly indicted and his guilt prejudged by Mr.
Marcos, and he could not possibly get due process and a fair trial
before a group of Mr. MarcosÊ military subordinates[.]84
In Mijares v. Ranada,85 despite the passing of years, this

Court acknowledged the continuing difficulties caused by

the dark years of the Marcos regime:
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 fairminded, 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[.]86
_______________
84 Id., at pp. 202-204; pp. 475-477.

85 495 Phil. 372; 455 SCRA 397 (2005) [Per J. Tinga, Second
Division].
86 Id., at p. 375; pp. 399-400.
518

Ocampo vs. Enriquez
In Presidential Commission on Good Government v.

Peña,87 this Court recognized the gargantuan task of the
Philippine Commission on Good Governance in recovering
the ill-gotten wealth of the Marcoses and the „organized

pillage‰ of his regime:
Having been charged with the herculean task of bailing the

country out of the financial bankruptcy and morass of the previous
regime and returning to the people what is rightfully theirs, the
Commission could ill afford to be impeded or restrained in the
performance of its functions by writs or injunctions emanating from
tribunals coequal to it and inferior to this Court. Public policy
dictates that the Commission be not embroiled in and swamped by
legal suits before inferior courts all over the land, since the loss of
time and energy required to defend against such suits would defeat
the very purpose of its creation.
....
The rationale of the exclusivity of such jurisdiction is readily

understood. Given the magnitude of the past regimeÊs Âorganized
pillageÊ and the ingenuity of the plunderers and pillagers with the
assistance of the experts and best legal minds available in the
market, it is a matter of sheer necessity to restrict access to the
lower courts, which would have tied into knots and made impossible
the CommissionÊs gigantic task of recovering the plundered wealth
of the nation, whom the past regime in the process had saddled and
laid prostrate with a huge $27 billion foreign debt that has since
ballooned to $28.5 billion.88
The many martyrs produced by Martial Law were

recognized in Bisig ng Manggagawa sa Concrete
Aggregates, Inc. v. National Labor Relations Commission:89
Hence, on June 17, 1953, Congress gave statutory recognition to the

right to strike when it enacted RA 875, otherwise known as the
Industrial Peace Act. For nearly two (2) decades, labor enjoyed the
_______________
87 Presidential Commission on Good Government v. Peña, supra note

80.
88 Id., at pp. 106-107; pp. 565-566, 585.
89 G.R. No. 105090, September 16, 1993, 226 SCRA 499 [Per J. Puno,
Second Division].

519
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Ocampo vs. Enriquez
right to strike until it was prohibited on September 12, 1972 upon

the declaration of martial law in the country. The 14-year battle to
end martial rule produced many martyrs and foremost among them
were the radicals of the labor movement. It was not a mere
happenstance, therefore, that after the final battle against martial
rule was fought at EDSA in 1986, the new government treated labor
with a favored eye. Among those chosen by then President Corazon
C. Aquino to draft the 1987 Constitution were recognized labor
leaders like Eulogio Lerum, Jose D. Calderon, Blas D. Ople and
Jaime S. L. Tadeo. These delegates helped craft into the 1987
Constitution its Article XIII entitled Social Justice and Human
Rights. For the first time in our constitutional history, the
fundamental law of our land mandated the State to „. . . guarantee
the rights of all workers to self-organization, collective bargaining
and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law.‰ This Constitutional
imprimatur given to the right to strike constitutes signal victory for
labor. Our Constitutions of 1935 and 1973 did not accord
constitutional status to the right to strike. Even the liberal US
Federal Constitution did not elevate the right to strike to a
constitutional level[.]90
Widespread „acts of torture, summary execution,

disappearance, arbitrary detention, and numerous other
atrocities‰ were also recognized in other jurisdictions. In a
class action suit that served as a serious precedent for
other jurisdictions, the United States District Court of
Hawaii in In Re Estate of Marcos Human Rights
Litigation91 pronounced:
„Proclamation 1081 not only declared martial law, but also set the
stage for what plaintiffs alleged, and the jury found, to be acts of
torture, summary execution, disappearance, arbitrary detention,
and numerous other atrocities for which the jury found MARCOS

personally responsible.
MARCOS gradually increased his own power to such an extent that

there were no limits to his orders of the human rights violations
suffered by plaintiffs in this action. MARCOS promulgated General
Order No. 1 which stated he was the Commander-in-Chief of the
Armed
_______________
90 Id., at pp. 511-512.

91 910 F. Supp. 1460 (D. Haw. 1995).
520

Ocampo vs. Enriquez
Forces of the Philippines. The order also stated that MARCOS was
to govern the nation and direct the operation of the entire
Government, including all its agencies and instrumentalities. By
General Orders 2 and 2-A, signed by MARCOS immediately after
proclaiming martial law, MARCOS authorized the arrest, by the
military, of a long list of dissidents. By General Order 3, MARCOS
maintained, as captive, the executive and judicial branches of all
political entities in the Philippines until otherwise ordered by
himself personally.
....
Immediately after the declaration of martial law the issuance of

General Orders 1, 2, 2A, 3 and 3A caused arrests of persons accused
of subversion, apparently because of their real or apparent
opposition to the MARCOS government. These arrests were made
pursuant to orders issued by the Secretary of Defense Juan Ponce
Enrile (ÂENRILEÊ) or MARCOS himself.
The arrest orders were means for detention of each of the

representatives of the plaintiff class as well as each of the

individual plaintiffs. During those detentions the plaintiffs

experienced human rights violations including, but not limited to
the following:
1. Beatings while blindfolded by punching, kicking and

hitting with the butts of rifles;
2. The ÂtelephoneÊ where a detaineeÊs ears were clapped

simultaneously, producing a ringing sound in the head;
3. Insertion of bullets between the fingers of a detainee and

squeezing the hand;
4. The Âwet submarine,Ê where a detaineeÊs head was

submerged in a toilet bowl full of excrement;
5. The Âwater cureÊ where a cloth was placed over the

detaineeÊs mouth and nose, and water poured over it
producing a drowning sensation;
6. The Âdry submarine,Ê where a plastic bag was placed over

the detaineeÊs head producing suffocation;
7. Use of a detaineeÊs hands for putting out lighted

cigarettes;
8. Use of flat-irons on the soles of a detaineeÊs feet;
9. Forcing a detainee while wet and naked to sit before an

air conditioner often while sitting on a block of ice;
521
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10. Injection of a clear substance into the body of a detainee

believed to be truth serum;

11. Stripping, sexually molesting and raping female

detainees; one male plaintiff testified he was threatened with
rape;
12. Electric shock where one electrode is attached to the

genitals of males or the breast of females and another
electrode to some other part of the body, usually a finger, and
electrical energy produced from a military field telephone is
sent through the body;
13. Russian roulette; and
14. Solitary confinement while handcuffed or tied to a bed.
All these forms of torture were used during Âtactical interrogation,Ê

attempting to elicit information from detainees concerning
opposition to the MARCOS government. The more the detainees
resisted, whether purposefully or out of lack of knowledge, the more
serious the torture used.92
US$1.2 billion in exemplary damages, as well as US$770

million in compensatory damages, was awarded to the
victims of the Marcos regime.93 The federal appeals court
upheld the Decision of the Honolulu court and held the
estate of Marcos liable for the gross and massie human
rights abuses committed. In Hilao v. Marcos,94 the United
States 9th Circuit Court of Appeals used the principle of
„command responsibility‰ for the violations committed by
the agents of a political leader, thus:
„The district court had jurisdiction over HilaoÊs cause of action.

HilaoÊs claims were neither barred by the statute of limitations nor
abated by MarcosÊ death. The district court did not abuse its
discretion in certifying the class. The challenged evidentiary rulings
of the district court were not in error. The district court properly
held Marcos liable for human rights abuses which occurred and
which he knew about and failed to use his power to prevent. The
jury instruc-
_______________
92 Id., at pp. 4-5.

93 Rosales Memorandum, p. 104.

94 103 F. 3d 762 (9th Cir. 1996).
522

Ocampo vs. Enriquez
tions on the Torture Victim Protection Act and on proximate cause

were not erroneous. The award of exemplary damages against the
Estate was allowed under Philippine law and the EstateÊs due
process rights were not violated in either the determination of those
damages or of compensatory damages.‰95
The Federal Supreme Court of Switzerland, through the

Decision dated December 10, 1997,96 affirmed the ruling of
the District Attorney of Zurich granting the Philippine
governmentÊs request for transfer of funds held in multiple
accounts by various foreign foundations in Swiss banks.
This was transferred to an escrow account.
Then, in Republic v. Sandiganbayan,97 this Court
declared that the funds were proven to belong to the
Marcos Family and were consequently ill-gotten wealth:
We agree with petitioner that respondent Marcoses made judicial

admissions of their ownership of the subject Swiss bank deposits in
their answer, the General Supplemental Agreements, Mrs. MarcosÊ
Manifestation and Constancia dated May 5, 1999, and the
Undertaking dated February 10, 1999. We take note of the fact that
the Associate Justices of the Sandiganbayan were unanimous in
holding that respondents had made judicial admissions of their
ownership of the Swiss funds.
In their answer, aside from admitting the existence of the subject
funds, respondent likewise admitted ownership thereof. Paragraph
22 of respondentsÊ answer stated:
22. Respondents specifically DENY PARAGRAPH 23

insofar as it alleges that respondents clandestinely stashed
the countryÊs wealth in Switzerland and hid the same under

layers and layers of foundations and corporate entities for

being false, the truth being that respondentsÊ aforesaid
properties were lawfully acquired.
_______________
95 Id. as cited in Memorandum (G.R. No. 225973), p. 105.

96 Federal Office for Police Matters v. Aguamina Corp.,
1A.87/1994/err (Swiss Federal Court, 10 December 1997), cited in
Memorandum (G.R. No. 225973), p. 106.
97 Republic v. Sandiganbayan, supra note 76.
523
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Ocampo vs. Enriquez
By qualifying their acquisition of the Swiss bank deposits as

lawful, respondents unwittingly admitted their ownership thereof.
....
Petitioner Republic presented not only a schedule indicating the

lawful income of the Marcos spouses during their incumbency but
also evidence that they had huge deposits beyond such lawful
income in Swiss banks under the names of five different
foundations. We believe petitioner was able to establish the prima
facie presumption that the assets and properties acquired by the
Marcoses were manifestly and patently disproportionate to their
aggregate salaries as public officials. Otherwise stated, petitioner
presented enough evidence to convince us that the Marcoses had
dollar deposits amounting to US$356 million representing the
balance of the Swiss accounts of the five foundations, an amount
way, way beyond their aggregate legitimate income of only
$304,372.43 during their incumbency as government officials.
Considering, therefore, that the total amount of the Swiss
deposits was considerably out of proportion to the known lawful
income of the Marcoses, the presumption that said dollar deposits
were unlawfully acquired was duly established.98 (Emphasis

supplied)
This cursory review of our jurisprudence relating to the

consequences of the Marcos regime establishes a climate of
gross human rights violations and unabated pillage of the
public coffers. It also reveals his direct participation,
leadership, and complicity.
IV
In Republic Act No. 10368, a legislative determination

was made regarding the gross human rights violations
committed during the Marcos regime:
Section 2. Declaration of Policy.·. . . .

the State to recognize the heroism and sacrifices of all Filipinos who
were victims of summary execution, torture, enforced or invol-
_______________
98 Id., at pp. 1131-1143; pp. 258-268.
524

Ocampo vs. Enriquez
untary 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 February
25, 1986 and restore the victimsÊ 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.
Similarly, it is the obligation of the State to acknowledge the
sufferings and damages inflicted upon persons whose properties or

businesses were forcibly taken over, sequestered or used, or those

whose professions were damaged and/or impaired, or those whose
freedom of movement was restricted, and/or such other victims of
the violations of the Bill of Rights.
Section 17 even declares a conclusive presumption as to

particular victims and, at the same time, recognizes the
complicity of Ferdinand E. Marcos:
Sec. 17. Conclusive Presumption That One is an HRVV Under

This Act.·The claimants in the class suit and direct action
plaintiffs in the Human Rights Litigation Against the Estate of
Ferdinand E. Marcos (MDL No. 840, CA No. 88-0390) in the US
Federal District Court of Honolulu, Hawaii wherein a favorable
judgment has been rendered, shall be extended the conclusive
presumption that they are [victims of human rights violations]:
Provided, That the [victims of human rights violations] recognized
by the Bantayog Ng Mga Bayani Foundation shall also be accorded
the same conclusive presumption[.]
Conclusive presumptions are „inferences which the law

makes so peremptory that it will not allow them to be
overturned by any contrary proof however strong.‰99 Thus,
the existence of human rights violations committed during
the Marcos regime and the recognition of victims explicitly
stated in the provision cannot be denied.
_______________
99 Mercado v. Santos and Daza, 66 Phil. 215, 222 (1938) [Per J.

Laurel, En Banc].
525
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The human rights victims and the violations under the

Marcos regime are so numerous that the legislature

created a Human Rights VictimsÊ Claims Board, dedicated
to effectively attain the objectives of Republic Act No.
10368. The Board is now adjudicating 75,730 claims of
human rights victims for reparation and/or recognition
under Republic Act No. 10368.100
Petitioner Algamar A. Latiph points out that among the

many gross human rights violations perpetrated under the
Marcos regime were those inflicted on the Moro civilian
population. These atrocities were committed by
government forces, as well as by state-affiliated armed
groups. The more infamous of these are: (1) the Jabidah
Massacre, where government forces allegedly executed at
least 23 Muslim recruits;101 (2) the Burning of Jolo, where
the massive aerial and naval bombardments and a ground
offensive against the MNLF forces resulted in the
destruction of two-thirds of Jolo and, thus, thousands of
refugees;102 (3) the Malisbong Massacre, where
paramilitary forces were responsible for killing about 1,500
Moro men and boys who were held in a local mosque and
killed, an unknown number of women and girls were raped
offshore on a naval vessel, and around 300 houses were
burned.103
Lesser known but equally deplorable atrocities alleged
to have been committed by government forces during the
Marcos regime included the Tran Incident and the Tong
Umapuy Massacre. These were reported by the
Transitional Justice and Reconciliation Commission:104
_______________
100 TSN, Oral Arguments, August 31, 2016, p. 206, Statement of

Chairperson Lina Castillo Sarmiento of the Human Rights VictimsÊ
Claims Board.
101 Report of the Transitional Justice and Reconciliation Commission,
p. 31 <http://www.tjrc.ph/skin/vii_tjrc/pdfs/report.pdf> (visited November
7, 2016).
102 Id.
103 Id.

104 Id. The Transitional Justice and Reconciliaton Commission was

created through the GPH-MILF negotiation process. It was mandated to
undertake a study and, among others, propose appropriate mechanism to
address legitimate grievances of the Bangsamoro People, as well as
address human rights violations.
526

Ocampo vs. Enriquez
The „Tran Incident‰ refers to a large-scale military campaign

against the MNLF in central Mindanao in June-August 1973. In the
Listening Process session, participants spoke of the massacre of
Moro civilians from the Barangay Populacion in the town of
Kalamansig, Sultan Kudarat province by military forces during
that campaign. The soldiers separated the men and women; the
men were confined in a military camp, interrogated, and tortured,
while the women with their children were taken aboard naval
vessels and raped. In the end, the men as well as the women and
children were killed. At a Listening Process session in Tawi-Tawi,
participants shared their memory of what they called the „Tong
Umapuy massacre.‰ In 1983, a Philippine Navy ship allegedly
opened fire on a passenger boat and killed 57 persons onboard. The
passengers were reportedly on their way to an athletic event in
Bongao.105
As regards the atrocities committed by groups that

maintained ties with the government under Marcos, the
Transitional Justice and Reconciliation Commission
reports:
The campaign of the Ilaga in Mindanao in 1970-1971 involved

indiscriminate killings and burning of houses with the intention of
terrorizing and expelling the Moro and indigenous population from
their homes and ancestral territories. Violent incidents took place
chronologically in a progressive fashion over a widespread area,
occurring among other places in Upi, Maguindanao (March and
September 1970); Polomok, South Cotabato (August 1970);

Alamada, Midsayap, and Datu Piang, Cotabato (December 1970);

Bagumbayan and Alamada, Cotabato (January 1971); Wao, Lanao
del Sur (July and August 1971); Ampatuan, Cotabato (August
1971); Kisolan, Bukidnon (October 1971); Siay, Zamboanga del Sur
(November 1971); Ipil, Zamboanga del Sur (December 1971); and
Palembang, South Cotabato (January 1972).
The armed bands of Christian paramilitaries, primarily Ilongga
settlers, that comprised the Ilaga, maintained ties with state
authorities, including local and national politicians, the Philippine
Constabulary, and the military. In most cases, the paramilitaries
acted on their own initiative; on other occasions, however, it is
believed that their attacks were conducted in close coordination
with
_______________
105 Id., at p. 32.
527
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Ocampo vs. Enriquez
government authorities. This was allegedly the circumstance in the

case of the mass killings of Moro villagers that took place in a
mosque and outlying houses in a rural Barangay of Carmen,
(North) Cotabato on June 19, 1971. Known as the „Manili
massacre,‰ this event spurred the Moro armed resistance and was
one of the few incidents that received attention in international
media.
....
. . . During the height of Ilaga atrocities, womenÊs bodies were

mutilated by cutting off their nipples and breasts, ripping babies
out of pregnant womenÊs wombs, and disfiguring their reproductive
organs. . . .
. . . [D]uring the TJRC Listening Process, there were accounts of
women being raped by Ilaga and soldiers in front of their families or

of women forced to have sex with their husbands in front of and for
the amusement of soldiers. Many Moro women and young girls who
were abducted and raped were never seen again; others were
allowed to return home. According to the TJRC Listening Process
report, incidents of sexual violence took place during the period of
Martial Law that amount to military sexual slavery.
. . . [B]etween 1972 and 1974, Ilaga and soldiers alike made
Bangsamoro women in Labangan and Ipil, Sibugay become „sex
slaves‰ of navy men, whose boat was docked at Labangan and Ipil
ports. For more than a week, soldiers rounded up a group of at least
ten women from Labangan and forced them to the naval boats to
serve the „sexual needs‰ of the navy men. The following day, they
were released; only to be replaced with another group of women,
and so on. . . . More than 200 women were [believed to be] enslaved
in this way.106
Petitioners also gave this Court their firsthand accounts

of the human rights violations they suffered under the
Marcos regime. Petitioner Loretta Ann P. Rosales
recounted that she was raped and tortured with the
Russian roulette and a modified water cure, among others:
_______________
106 Id., at pp. 31-37.
528

Ocampo vs. Enriquez
MRS. ROSALES:
My name is Loretta Ann P. Rosales. I am a torture victim under

the Marcos regime. I was sexually molested and according to the
latest Rape Act, I was actually raped, that is the definition. I had
electric shock; I suffered from Russian roulette, modified water
cure and several other ways of harassing me. So IÊm a torture
victim and so I applied before the Claims Board compensation for

the violations committed by the Marcos regime during my time.
CHIEF JUSTICE SERENO:
By Russian roulette, what is it, Ms. Rosales?
MRS. ROSALES:
They had a gun and they threatened me to answer the questions

otherwise they would shoot. So that was a psywar. So I said if I
would give in to them, theyÊll shoot me then they wonÊt . . . then
they wonÊt be able to get confession from me cause IÊll be dead by
then. So that was all psywar so I just kept on with my position and
they finally gave up. So they went into other methods of torture in
order to try to draw confession, exact confession from me. And the
worst part, of course, was that sexual molestation and electric
shock and the modified water cure.
How long did these incidents transpire, the entire duration? You
donÊt have to count the number of days . . . (interrupted)
MRS. ROSALES:
No, no, in fact, I donÊt know. I mean it was just a continuing

thing like twenty-four (24) hours continuing torture. There was no
sleeping, there was no eating. It just went on and on because until
. . . such time, it was after the electric shock I suffered . . . I was
traumatized, physically traumatized so I couldnÊt control the
tremor in my body and they finally stop[ped]. I pretended I was
dying but they knew I wasnÊt dying. So thatÊs all psywar
throughout. Anyway, after the electric part, which was the worst
part, that was the last part, they finally pushed me and put me
somewhere and I donÊt know how long that took.107
Her sister, petitioner Ma. Cristina Pargas Bawagan,

testified that she was beaten, raped, and sexually abused:
_______________
107 TSN, Oral Arguments, August 31, 2016, pp. 200-201.

529
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Ocampo vs. Enriquez
MS. BAWAGAN:
I am Ma. Cristina Pargas Bawagan. I am the sister of Etta. I was

arrested May 27, 1981 in Munoz, Nueva Ecija on charges of
possession of subversive documents. There was no arrest order; I
was simply arrested, handcuffed and blindfolded, my mouth gagged
then they brought me to a safe house. And in the safe house they
started interrogating and torturing me and they hit on my thighs
until my thighs turned black and blue; and they also threatened me
with so many things, pinompyang ako, thatÊs what they call sa ears
and then they put a sharp object over my breast, etcetera. They tore
my dress and then eventually they let me lay down to sleep but
then early in the morning the two soldiers who stayed near me
started torturing me again and by todayÊs definition, it is rape
because they fondled my breast and they inserted a long object into
my vagina and although I screamed and screamed with all my
might, no one seemed to hear except that I heard the train pass
by . . .108
Petitioner Hilda Narciso testified that she was raped

and sexually abused:
MS. NARCISO:
I am Hilda Narciso. I was incarcerated in Davao City in 1983. It

was a rape, multiple rape that I have undergone through my
captures. I was placed in a safe house where the militaries are safe
and I was actually being sexually abused for about two days. ItÊs
quite difficult to me in the hands of the militaries because I was
handcuffed, blindfolded and actually they have mashed all my
body. And . . . (At this juncture, Ms. Narciso is already in tears)
they handcuffed me and then a lot of hands were all over my body
and they also put their penises one at a time on my mouth, finger
your vagina and all that for several hours without . . . you have
been even taken your food. Actually it was quite a long period of
time under the safe house for about two days with all those kinds of
process that I have gone through . . .109

Petitioner Liwayway Arce testified that during the

Marcos regime, her father was killed, and her mother was
tortured and sexually abused:
_______________
108 Id., at pp. 203-204.

109 Id., at p. 203.
530

Ocampo vs. Enriquez
MS. ARCE:
IÊm Liwayway Arce, Your Honors. IÊm the daughter of Merardo

Tuazon-Arce; he was a UP student and he founded Panday Sining,
which was a cultural group. Later on he fought for his beliefs and
on February 5, 1985, he was gunned down in Mabolo Street in
Cebu City. In 2005, he was heralded as one of the martyrs at the
Bantayog ng mga Bayani Foundation and his name is inscribed
also together with two hundred sixty plus martyrs and heroes in
Bantayog ng mga Bayani. I am a claimant-beneficiary under the
Republic Act 10368. And my mother is also a claimant; she was
incarcerated also in a camp in Fort Bonifacio. I donÊt really know
much details about my parents because I was not raised by them
and there are many other beneficiaries like me who were orphaned.
My mother is still alive but she was also . . . she also undergone . . .
she underwent torture and sexual abuse and I hope my sister is not
listening right now because she does not know this. Thank you.110
Petitioner Atty. Neri Colmenares recounted having lost

four (4) years of his life as a young student leader to
imprisonment, during which various forms of torture were
used on him:
ATTY. COLMENARES:

And for the record, Your Honor, IÊm also conclusively presumed
under the law as a human rights victim being in the Hawaii case
for my torture of seven days and four years of imprisonment when I
was eighteen years old, Your Honor. Thank You.
You were eighteen years old. You were a student leader at that
time, Congressman . . . ?
ATTY. COLMENARES:
Yes, I was the chairman of the student catholic action and we

were demanding the return of student council and student papers
when I was arrested. And I was tortured, Your Honor, the usual,
they . . . cigarette butts, the electric shocks, the M16 bullets in
between your fingers, the Russian roulette and so on, Your Honor.
So under the law, human rights victims who are in Hawaii, the
Hawaii
_______________
110 Id.
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Ocampo vs. Enriquez
case are conclusively presumed to be human rights violation

victims Your Honor.111
Petitioner Trinidad Herrera Repuno testified that she

was a member of the informal settlersÊ sector and was also
a victim of torture:
Magandang hapon po sa inyong lahat mga Justices. Ako po si

Trinidad Herrera Repuno. Ako ay isang biktima ng kapanahunan
ng martial law. Ako po ay isang leader ng organisasyon ng mga
mahirap sa Tondo. Ang pinaglalaban po namin ay merong batas

para doon sa magkaroon kami ng lupa at yung iba pang mga

karapatan namin. Subalit noong nagdeklara si Marcos ng martial
law, nawala ho lahat ng saysay iyon. . . . Ako poÊy isa sa mga judges
na pupunta sana sa international competition para architectural
competition sa Vancouver para doon sa pabahayan na gagawin dito
sa Pilipinas. Subalit hindi po ako binigyan nang pagkakataon na
makaalis. Sa halip na akoÊy makaalis, ako po ay hinuli noong April
27, 1977 at akoÊy dinala dooon sa . . . ang humuli ho sa akin
intelligence ng Manila Police. At akoÊy kinahapunan tinurn-over sa
Crame sa pangunguna po ni Eduardo Matillano. Nang akoÊy
napasok doon sa maliit na kuwarto, akoÊy tinanong kung ano ang
pangalan ko, sinabi ko ang pangalan ko at akoÊy . . . pinaalis ang
aking sapatos, pinaalis lahat iyong aking bag at sinabi sa akin na
tumayo ako. Merong parang telepono doon sa may lamesa na
meroong kuryente. Iyon po ang inilagay dito sa aking dalawang
daliri at inumpisahan ho nila akong tinatanong kung sinu-sino ang
nalalaman ko. Ang alam ko lang ho ang pinaglalaban namin, na
karapatan namin para sa aming mga maralita. Subalit hindi
naniniwala si Matillano at sinasabi nya na meron akong kinalaman
sa mga kumunista na wala naman akong kinalaman. Iyon ang
pinipilit po nila hanggang dumudugo na po ang dalawang daliri ko
dito sa . . . iyong mga malalaking daliri ko, tumutulo na po ang
dugo, hindi pa ho nila tinatantanan. Mamaya-maya nang hindi na
po nila naanuhan, pinaalis ho ang aking blusa at iyong wire po
inilagay po dito sa aking dalawang suso at muli inulit-ulit
pagtuturn po nang parang telepono pumapasok po ang kuryente sa
katawan ko na hindi ko na ho nakakayanan hanggang sa ako y
sumigaw nang sumigaw subalit wala naman hong nakakarinig
sapagkat maliit na kwarto, nilagyan pa ho ng tubig iyong sahig
para
_______________
111 Id., at pp. 208-209.
532

Ocampo vs. Enriquez

iyong kuryente lalong pumasok sa aking katawan. . . Nairelease po

ako subalit nanghina po ako hanggang sa ngayon. Nang akoÊy
medyo may edad na nararamdaman ko na ho iyong mga
pampahirap, iyong pukpok dito sa likod ko habang akoÊy inaano,
lagi po nilang. . . pagkatapos nang pagpaikot ng kuryente, pukpukin
ho ako dito sa likod. Sabi nya pampalakas daw iyon. Pero masakit
na masakit po talaga hanggang sa ngayon nararamdaman po
namin ngayon ang ano. Kaya ako, sumama ako sa U.S. para akoÊy
tumestigo laban kay Marcos[.]112
Petitioner Carmencita Florentino, also from the informal

settlersÊ sector, testified as to her forcible abduction,
torture, and detention:
Magandang hapon po sa inyo. Ako po si Carmencita Florentino.

Isa po akong leader ng urban poor. Ipinaglalaban namin iyong
karapatan namin sa paninirahan doon na expropriation law. April
1977 po dumating po iyong mga Metrocom may mga kasamang
pulis ng Quezon City may mga armalite po sila, sapilitan po nila . .
. marami po sila, siguro hindi lang isang daan. Pinasok po nang
sapilitan iyong bahay namin, kasalukuyan po alas syete ng gabi. . . .
Niransack po iyong bahay namin pagkatapos kinaladkad po iyong
asawa ko. Iyong anak ko po na siyam na taong babae na nag-iisa.
Aka po, halos nahubaran na ako dahil pinipilit po akong arestuhin,
kaming mag-asawa . . . At sinasabing akoÊy leader ng komunista na
hindi ko naman po naiintindihan iyon. Ang alam ko po
pinaglalaban lang namin karapatan namin sa paninirahan sa
Barangay Tatalon. Sapilitan po halos napunit na po iyong damit ko.
Ibinalibag ako doon sa . . . palabas po ng pinto dahil hinahabol ko
iyong asawa ko na hinampas po ng armalite nung mga Metrocom
na iyon. Tumama po ang likod ko sa pintuan namin, iyong kanto
namin na halos mapilay na po ako. Pagkatapos po dinala kami sa
Camp Crame, iyong asawa ko hindi ko na po nakita. Iyong anak ko
nasa custody daw ng mga sundalo. Ako pinaglipat-lipat kung saan
saan doon Âdi ko na matandaan e, may ESV, JAGO, na
iniinterrogate ako, tinatanong sino iyong pinuno, sino iyong pinuno
namin. Hindi ko po alam, wala akong maisagot. Kaya po sa
pagkakataon na iyon, tumutulo na po iyong, akala ko po sipon lang,
dugo na pala ang lumalabas sa bibig ko saka sa ilong ko po dahil,
hindi ko alam kung anong nangyari do-
_______________

112 Id., at pp. 209-211.
533
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Ocampo vs. Enriquez
on sa siyam na taong anak ko na babae, nahiwalay sa akin.

Masyado po ang pahirap na ginawa nila doon, na kulang na lang
na ma-rape ako. Inaasa ko na lang po ang aking sarili sa
Panginoong Diyos kung anuman ang mangyari sa akin,
tatanggapin ko na. Pero iyong anak ko, iyong babae, hindi ko siya
makita, dahil ako nakabukod, bukod-bukod kami. Natawanan ko
iyong aking mga officer, buntis ho, ikinulong din pala. Kaya sobra
ho ang hirap na inabot namin noong panahon ng martial law, na
masyado na kaming . . . hanggang ngayon taglay ko pa rin po . . . sa
baga ko may pilat, hindi nawawala, sinusumpong po paminsan
minsan lalo pa nga pag naalala ko ang ganito na iniinterview kami
kung maaari ayaw ko nang magpainterview dahil ano po e
mahirap, napakasakit pong tanggapin. Pinalaya po kami
pansamantala ng anak ko, nagkita kami ng anak ko. Isang buwan
po kami sa Camp Crame, pansamantala pinalaya kaming mag-ina
dahil sa humanitarian daw po pero binabantayan pa rin kami sa
bahay namin, hindi kami makalayong mag-ina. At tuwing Sabado
nagrereport po kami dyan sa Camp Crame. Ang asawa ko po
nakakulong sa Bicutan kasama po nila Ka Trining. Hanggang
ngayon po trauma na rin po iyong anak ko kahit nga po may
pamilya na ayaw nang tumira dito sa Pilipinas dahil baka po
makulong uli kami. Iyon lang po.113
Petitioner Felix Dalisay testified as to the lifelong

trauma of the Martial Law years:
Magandang hapon po sa ating lahat. Felix Dalisay po, 64 years

old. Sapilitan po akong hinuli, kinulong ng mga panahon ng
Martial Law sometime Â73, Â74. Almost, kung tututalin po lahat
nang pagkakakulong ko hindi naman tuloy-tuloy, almost three
years po. ... Sa Kampo Crame po sa panahon ng interrogation,
nakaranas po ako nang ibat-ibang klase nang pagmaltrato.

Nandyan po iyong pagka hindi maganda ang sagot mo sa mga

tanong nila, nakakatanggap po ako ng karate chop, mga suntok po
sa tagiliran na alam nyo naman ang katawan ko maliit lang noong
araw, ang pakiramdam ko e bale na ata iyong tadyang ko rito e.
Andyan rin po iyong ipitan nang bala ng 45 ang kamay mo,
didiinan ng ganyan po. Meron din pong mga suntok sa ibaÊt ibang
parte ng katawan. May pagkakataon po na minsan natadyakan po
ako, tinadyakan po ako, bumagsak sa isang
_______________
113 Id., at pp. 208-212.
534

Ocampo vs. Enriquez
parting mabato kaya hanggang ngayon po may pilat po ako dito.

Ang pinakamabigat po kasi na nangyari sa akin sa panahon nang
interrogation, kung minsan kasi kami pag ka iniinterrogate hindi
na ho namin matiis ang mga sakit so nakakapagsalita kami nang
mga taong nakasama namin. So, noong panahon po na iyon, gabi
noon, so may mga nabanggit ako during interrogation ng mga tao
na mga nakasama ko so niraid po namin iyon, sinamahan ko sila. E
marahil siguro iyong mga dati kong kasama e nabalitaang nahuli
na ako, nagtakbuhan na po siguro so wala kaming inabot. Ang
mabigat na parte po noon galit na galit ang mga sundalo ng
FIFSEC po iyon. Ang FIFSEC po Fifth Constabulary Security iyon e
pinaka notorious na torturer noong panahon ng Martial Law,
marami po iyan. So ang pinakamabigat po roon kasi sa totoo po
ngayon mabuti pa iyong LALU victim may mga counseling pero
kami po ang mga biktima (crying) hanggang ngayon po wala pa ho
kaming natatanggap (sniffiing) maski hustisya, mga counseling na
yan. At ang masakit sa akin ako po nagiging emotional po ako hindi
lang po sa sarili ko. . . . Marami pa pong mga biktima dyan maÊam
na talagang maaawa ka. Grabe po. Iyong sa akin po ang pinaka
matindi po akala ko isasalvage na po ako. Dinala po ako sa isang
madilim na lugar dyan sa Libis, Quezon City sa Eastwood, noong

panahon pong iyun medyo gubatan po iyun pinaihi kami sabi naiihi
ako nakarinig na lang po ako ng putok sa kaliwang bahagi ng tenga
ko. Akala ko patay na ako. Tapos mga pompyang, pompyang po na
iyan pag sinabi pong pompyang na mga ganyan. Hanggang ngayon
po sa totoo po humina po ang aking pandinig. Hindi naman ako
tuluyang nabingi, mahina po kaya pagka may tumatawag sa akin
sa cellphone sabi ko pakitext mo na lang, naulinigan ko ang boses
nyo pero ahhh hindi ko maintindihan. So pakiusap lang sana sa
totoo lang po MaÊam dito maaring nagsasabi ang iba forget about
the past ilibing na natin yan dyan. Sa amin pong mga naging
biktima. Hindi po ganun kadali iyon. Ang trauma po hanggang
ngayon dala-dala namin. Tuwing maaalala namin ang sinapit
namin, naiiyak kami, naaawa kami sa sarili namin. Tapos ngayon
sasabihin nila forget about the past. Paano kaming mga naging
biktima. Hanggang ngayon nga wala pa kaming katarungan e.
Andyan nga may Ten Billion, ang human rights . . . mga nauna
naman yan e. Hindi ba nirecover natin yan. Tapos ngayon ang
sasabihin nila Marcos is a hero. No, hindi po. Hindi po matatapos
yan. So hanggang doon na lang po, sana. Sana po pagbigyan nyo
kami. Dahil kami sa parte ng mga biktima payagan man ng
Supreme Court na ilibing yan di-
535
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Ocampo vs. Enriquez
yan, di po kami titigil sa pakikipaglaban namin sapagkat kami

nagkaranas nang lupit ng Martial Law hanggang, habang buhay po
naming dala yan. Salamat po.114
All these accounts occurred during the Marcos regime.

By no stretch of the imagination, then, can Ferdinand E.
MarcosÊ memory serve as an inspiration, to be emulated by
generations of Filipinos.
VI

Contemporarily, even the National Historical

Commission took a clear position against the interment of
Ferdinand E. Marcos at the Libingan ng mga Bayani.
The National Historical Commission was established by
law as „the primary government agency responsible for
history‰115 given the mandate „to determine all factual
matters relating to official Philippine history.‰116
Among others, it is given the task to:
(a) conduct and support all kinds of research relating to Philippine

national and local history;
(b) develop educational materials in various media, implement

historical educational activities for the popularization of Philippine
history, and disseminate information regarding Philippine historical
events, dates, places and personages;
(c) undertake and prescribe the manner of restoration,

conservation and protection of the countryÊs historical movable and
immovable objects;
(d) manage, maintain and administer national shrines,

monuments, historical sites, edifices and landmarks of significant
historico-cultural value; and
_______________
114 Id., at pp. 214-215.

115 Rep. Act No. 10386, Sec. 5.
116 Id.
536

Ocampo vs. Enriquez
(e) actively engage in the settlement or resolution of controversies

or issues relative to historical personages, places, dates and
events.117

The National Historical CommissionÊs Board is given the

power to „discuss and resolve, with finality, issues or
conflicts on Philippine History.‰118 The Chair of the
National Historical Commission is mandated to „advise the
President and Congress on matters relating to Philippine
history.‰119
In these statutory capacities, the National Historical
Commission published its study entitled „Why Ferdinand
Marcos Should not be Buried at the Libingan ng mga
Bayani‰ on July 12, 2016.120
The study was based on the declassified documents in
the Philippine Archives Collection of the United States
National Archives/National Archives and Records
Administration and the websites of pertinent United States
government agencies and some officially sanctioned
biographies of Ferdinand E. Marcos. It concluded that:
„With regard to Mr. MarcosÊ war medals, we have established that

Mr. Marcos did not receive, as the wartime history of the Ang Mga
Maharlika and MarcosÊ authorized biography claim, the
Distinguished Service Cross, the Silver Medal, and the Order of the
Purple Heart. In the hierarchy of primary sources, official
biographies and memoirs do not rank at the top and are never
taken at face value because of their self-serving orientation, as it is
abundantly palpable in Mr. MarcosÊ sanctioned biographies. In a
leaderÊs earnestness to project himself to present and succeeding
generations as strong and heroic, personally authorized accounts
tend to suffer from a shortage of facts and a bounty of
embellishment.‰
„With respect to Mr. MarcosÊ guerilla unit, the Ang Mga Maharlika
was never recognized during the war and neither was Mr. MarcosÊ
leadership of it. Note that other guerilla units in northern Luzon
were recognized, such as:
_______________
117 Id.
118 Id., Sec. 7(h).
119 Id., Sec. 13.
120 Supra note 29.

537
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Ocampo vs. Enriquez
103rd Regiment, East Central Luzon
Pangasinan Anti-Crime Service, Pangasinan Military Area,

LGAF
100th Bn/100th Inf. Regiment LGAFA
Southern Pangasinan Guerilla Forces (Gonzalo C. Mendoza

Commander).
„Furthermore, grave doubts expressed in the military records about

Mr. MarcosÊ actions and character as a soldier do not provide sound,
unassailable basis for the recognition of a soldier who deserves to be
buried at the LNMB.
„On these grounds, coupled with Mr. MarcosÊ lies about his medals,
the NATIONAL HISTORICAL COMMISSION OF THE
PHILIPPINES opposes the plan to bury Mr. Marcos at the Libingan
ng mga Bayani.‰121
The CourtÊs findings in a catena of cases in its

jurisprudence, a legislative determination in Republic Act
No. 10368, the findings of the National Historical
Commission, and the actual testimony of petitioners during
the Oral Arguments clearly show that the life of Ferdinand
E. Marcos either as President or as a soldier is bereft of
inspiration. Ferdinand E. Marcos should not be the subject
of emulation of this generation, or of generations yet to
come.
VII
Assuming without accepting that Republic Act No. 289

authorized public respondents to determine who has led a

life worthy of „inspiration and emulation,‰ and assuming
further that it was under this authority that they directed
Ferdinand E. MarcosÊ interment, the PresidentÊs verbal
orders, the Lorenzana Memorandum, and the Enriquez
Orders were still issued with grave abuse of discretion
because they were whimsical and capricious.
Considering the state of existing law and jurisprudence
as well as the findings of the National Historical
Commission, there was no showing
_______________
121 Id., at p. 24.
538

Ocampo vs. Enriquez
that respondents conducted any evaluation process to

determine whether Ferdinand E. Marcos deserved to be
buried at the Libingan ng mga Bayani.
RespondentsÊ actions were based upon the PresidentÊs
verbal orders, devoid of any assessment of fact that would
overcome what had already been established by law and
jurisprudence.
The Solicitor General can only state that:
41. During the campaign period leading to the May 2016

elections, President Duterte, then only a candidate to the highest
executive post in the land, openly expressed his desire to have the
remains of former President Marcos interred at the Libingan.
42. On 9 May 2016, more than 16 million voters elected
President Duterte to the position.
43. True to his campaign promise of unifying the nation,
President Duterte gave verbal orders on 11 July 2016 to Defense
Secretary Lorenzana to effect the interment of the remains of
former President Marcos at the Libingan.

44. On 7 August 2016, and pursuant to the verbal orders of the

President, Defense Secretary Lorenzana issued a Memorandum
addressed to AFP Chief of Staff General Ricardo R. Visaya
informing him of the verbal orders of the President, and for this
purpose, to „undertake the necessary planning and preparations to
facilitate the coordination of all agencies concerned specially the
provisions for ceremonial and security requirements.‰
45. In the same Memorandum, Defense Secretary Lorenzana
tasked the PVAO as the „OPR‰ (Office of Primary Responsibility) for
the interment of the remains of former President Marcos, as the
Libingan is under the PVAOÊs supervision and administration.
Defense Secretary Lorenzana likewise directed the Administrator of
the PVAO to designate the focal person for and overseer of the
event.
46. On 9 August 2016, Rear Admiral Ernesto Enriquez, by
command of General Visaya, issued a Directive to the Commanding
539
VOL. 807, NOVEMBER 8, 2016 539

Ocampo vs. Enriquez
General of the Philippine Army to prepare a grave for former

President Marcos at the Libingan.122
President Duterte himself publicly admitted that

Ferdinand E. Marcos was no hero.123 This much was also
admitted by the Solicitor General:124
Honorable Chief Justice and Associate Justices: At this moment

in our history, I recall a scene from Julius Caesar where Marc
Anthony spoke to his countrymen: „I come to bury Caesar, not to
praise him, The evil that men do lives after them, the good is oft
interred in their bones.‰ Inspired by these lines, I now come to your
honors to allow the State to bury the remains of former President
Ferdinand Marcos at the Libingan ng mga Bayani, not to honor
him as a hero even if by military standards he is. But to accord him

the simple mortuary rites befitting a former president, commander-

in-chief, war veteran and soldier.125
The capriciousness of the decision to have him buried at

the Libingan ng mga Bayani is obvious, considering how
abhorrent the atrocities during Martial Law had been.
Likewise, the effects of the Marcos regime on modern
Philippine history are likewise too pervasive to be
overlooked.
The Filipino People themselves deemed Marcos an unfit
President and discharged him from office through a direct
exercise of their sovereign power. This has been repeatedly
recognized by this Court.
_______________
122 OSG Memorandum, pp. 19-20.

123 Hegina, Aries Joseph, Duterte wonÊt change mind on heroÊs burial
for Marcos, Inquirer.Net, May 26, 2016
<http://newsinfo.inquirer.net/787590/duterte-wont-change-mind-on-
heros-burialfor-marcos#ixzz4IQcNtc8X> (visited November 7, 2016).
Nicolas, Fiona, Duterte defends heroÊs burial for Marcos: A matter of
enforcing the law, CNN Philippines, August 18, 2016
<http://cnnphilippines.com/news/2016/08/18/duterte-defends-marcos-
heros-burial-libingan-ng-mga-bayani-enforcing-law.html> (visited
November 7, 2016).
124 TSN, Oral Arguments, September 7, 2016, pp. 8 and 93.
125 Id., at p. 8.
540

Ocampo vs. Enriquez
In Lawyers League for a Better Philippines v. Aquino:126
The three petitions obviously are not impressed with merit.

Petitioners have no personality to sue and their petitions state no
cause of action. For the legitimacy of the Aquino government is not

a justiciable matter. It belongs to the realm of politics where only

the people of the Philippines are the judge. And the people have
made the judgment; they have accepted the government of
President Corazon C. Aquino which is in effective control of the
entire country so that it is not merely a de facto government but is
in fact and law a de jure government. Moreover, the community of
nations has recognized the legitimacy of the present government.
All the eleven members of this Court, as reorganized, have sworn to
uphold the fundamental law of the Republic under her government.
Moreover, the sentiment of the sovereign People,

reacting to the blight that was the Marcos dictatorship,
was enunciated in Proclamation No. 3:
WHEREAS, the new government was installed through a direct

exercise of the power of the Filipino people assisted by units of the
New Armed Forces of the Philippines;
WHEREAS, the heroic action of the people was done in defiance
of the provisions of the 1973 Constitution, as amended;
WHEREAS, the direct mandate of the people as manifested by
their extraordinary action demands the complete reorganization of
the government, restoration of democracy, protection of basic rights,
rebuilding of confidence in the entire governmental system,
eradication of graft and corruption, restoration of peace and order,
maintenance of the supremacy of civilian authority over the
military, and the transition to a government under a New
Constitution in the shortest time possible.
Further, in articulating the mandate of the People,

Article 2, Section 1 of Proclamation No. 3 enumerated the
many evils perpetuated during
_______________
126 G.R. No. 73748, May 22, 1986, as cited in In Re: Saturnino V.
Bermudez, 229 Phil. 185, 188; 145 SCRA 160, 163 (1986) [Per Curiam, En
Banc].
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Ocampo vs. Enriquez
the Marcos regime, which the new government would be

charged to dismantle:
Article II
The President, the Vice President, and the Cabinet
SECTION 1. Until a legislature is elected and convened under

a new Constitution, the President shall continue to exercise
legislative power.
The President shall give priority to measures to achieve the
mandate of the people to:
a) Completely reorganize the government and eradicate unjust
and oppressive structures, and all iniquitous vestiges of the
previous regime;
b) Make effective the guarantees of civil, political, human, social,
economic and cultural rights and freedoms of the Filipino
people, and provide remedies against violations thereof;
c) Rehabilitate the economy and promote the nationalist
aspirations of the people;
d) Recover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of
the people through orders of sequestration or freezing of
assets of accounts;
e) Eradicate graft and corruption in government and punish
those guilty thereof; and
f) Restore peace and order, settle the problem of insurgency, and
pursue national reconciliation based on justice.
Public respondents neglect to examine the entirety of

Ferdinand E. MarcosÊ life, despite the notoriety of his latter
years. The willful ignorance of the pronouncements from all
three branches of government and of the judgment of the
People themselves can only be characterized as so arbitrary
and whimsical as to constitute grave abuse of discretion.
VIII

Republic Act No. 10368, otherwise known as the Human

Rights Victims Reparation and Recognition Act of 2013,
contains a legislative
542

Ocampo vs. Enriquez
finding that gross human rights violations were committed

during the Marcos regime. It provides for both the
recognition of the sufferings of human rights victims as
well as the provision for effective remedies.
Recognition of human rights and of the goal of achieving
social justice is a primordial shift in our constitutional
order. This shift was occasioned by the experiences of our
society during Martial Law. This is evident in some
discussions in the Constitutional Convention.
Commissioner Edmundo Garcia, speaking on the
necessity of a Commission on Human Rights, emphasized:
Precisely, one of the reasons why it is important for this body to

be constitutionalized is the fact that regardless of who is the
President or who holds the executive power, the human rights issue
is of such importance that it should be safeguarded and it should be
independent of political parties or power that are actually holding
the reins of government. Our experience during the martial law
period made us realize how precious those rights are and, therefore,
these must be safeguarded at all times.
Hence, Section 11, Article II of the 1987 Constitution thus reads,
„(t)he State values the dignity of every human person and
guarantees full respect for human rights.‰ To breathe life into this
State policy, the Commission on Human Rights was created and
was envisioned as an independent office, free from political
interference.127
Commissioner Jose Nolledo, sponsoring the provision

that declares an independent foreign policy for the
Philippines, also stated:

The Marcos regime has wrought great havoc to our country. It

has intensified insurgency and is guilty of rampant violations of
human rights and injustices it has committed. It has brought about
economic turmoil. It has institutionalized widespread graft and
corruption in all levels of government and it has bled the National
treasury, resulting in great financial hemorrhage of our country.128
_______________
127 Rosales, et al., Memorandum (G.R. No. 225973), p. 109.

128 Id.
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Former Associate Justice Cecilia Muñoz Palma, the 1986

Constitutional Commission President, in her closing
speech, alluded to the experience during Martial Law as a
motivating force operating in the background of the
crafting of the new Constitution:
A beautiful irony which cannot be overlooked is the fact that this

new Constitution was discussed, debated, and finally written within
the walls of this hall which saw the emergence of what was called
by its author a „constitutional authoritarianism,‰ but which, in
effect, was a dictatorship, pure and simple. This hall was the seat of
a combined executive and legislative power skillfully placed in the
hands of one man for more than a decade. However, the miracle of
prayer and of a peopleÊs faith and determined struggle to break the
shackles of dictatorship toppled down the structure of despotism
and converted this hall into hallowed grounds where the seeds of a
newly found freedom have been sown and have borne fruit.
My countrymen, we open the new Charter with a Preamble
which is the beacon light that shines and brightens the path in
building a new structure of government for our people. In that
Preamble is expounded in positive terms our goals and aspirations.
Thus, imploring the aid of Almighty God, we shall establish a just

and humane society, a social order that upholds the dignity of man,
for as a Christian nation, we adhere to the principle that, and I
quote: „the dignity of man and the common good of society demand
that society must be based on justice.‰ We uphold our independence
and a democratic way of life and, abhorring despotism and tyranny,
we bind ourselves to live under the rule of law where no man is
above the law, and where truth, justice, freedom, equality, love and
peace will prevail.
For the first time in the history of constitution making in this
country, the word „love‰ is enshrined in the fundamental law. This
is most significant at this period in our national life when the
nation is bleeding under the forces of hatred and violence. Love
which begets understanding is necessary if reconciliation is to be
achieved among the warring factions and conflicting ideologies now
gripping the country. Love is imperative if peace is to be restored in
our nativeland, for without love there can be no peace.
We have established a republican democratic form of government
where sovereignty resides in the people and civilian supremacy over
the military is upheld.
544

Ocampo vs. Enriquez
For the first time, the Charter contains an all-embracing

expanded Bill of Rights which constitutes the cornerstone of the
structure of government. Traditional rights and freedoms which are
hallmarks of our democratic way of life are reaffirmed. The right to
life, liberty and property, due process, equal protection of the laws,
freedom of religion, speech, the press, peaceful assembly, among
others, are reasserted and guaranteed. The Marcos provision that
search warrants or warrants of arrest may [be] issued not only by a
judge but by any responsible officer authorized by law is discarded.
Never again will the Filipino people be victims of the much-
condemned presidential detention action or PDA or presidential
commitment orders, the PCOs, which desecrate the rights to life
and liberty, for under the new provision a search warrant or
warrant of arrest may be issued only by a judge. Mention must be

made of some new features in the Bill of Rights, such as the

privilege of the writ of habeas corpus can be suspended only in cases
of invasion or rebellion, and the right to bail is not impaired during
such suspension, thereby discarding jurisprudence laid down by the
Supreme Court under the Marcos dispensation that the suspension
of the privilege of the writ carried with it the suspension of the right
to bail. The death penalty is abolished, and physical, psychological
or degrading punishment against prisoners or detainees,
substandard and subhuman conditions in penitentiaries are
condemned.
For the first time, the Constitution provides for the creation of a
Commission on Human Rights entrusted with the grave
responsibility of investigating violations of civil and political rights
by any party or groups and recommending remedies therefor.
From the Bill of Rights we proceed to the structure of
government established in the new Charter.
We have established the presidential system of government with
three branches · the legislative, executive, and judicial · each
separate and independent of each other, but affording an effective
check and balance of one over the other.
All legislative power is returned and exclusively vested in a
bicameral legislature where the Members are elected by the people
for a definite term, subject to limitations for reelection,
disqualification to hold any other office or employment in the
government including government-owned or -controlled
corporations and, among others, they may not even appear as
counsel before any court of justice.
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For the first time in our Constitution, 20 percent of Members the

Lower House are to be elected through a party-list system and, for
three consecutive terms after the ratification of the Constitution, 25
of the seats shall be allocated to sectoral representatives from labor,
peasant, urban poor, indigenous cultural communities, women,
youth and other sectors as may be provided by law. This innovation

is a product of the signs of the times when there is an intensive

clamor for expanding the horizons of participatory democracy
among the people.
The executive power is vested in the President of the Philippines
elected by the people for a six-year term with no reelection for the
duration of his/her life. While traditional powers inherent in the
office of the President are granted, nonetheless for the first time,
there are specific provisions which curtail the extent of such
powers. Most significant is the power of the Chief Executive to
suspend the privilege of the writ of habeas corpus or proclaim
martial law.
The flagrant abuse of that power of the Commander-in-Chief by
Mr. Marcos caused the imposition of martial law for more than
eight years and the suspension of the privilege of the writ even after
the lifting of martial law in 1981. The new Constitution now
provides that those powers can be exercised only in two cases,
invasion or rebellion when public safety demands it, only for a
period not exceeding 60 days, and reserving to Congress the power
to revoke such suspension or proclamation of martial law which
congressional action may not be revoked by the President. More
importantly, the action of the President is made subject to judicial
review thereby again discarding jurisprudence which render the
executive action a political question and beyond the jurisdiction of
the courts to adjudicate.
For the first time, there is a provision that the state of martial
law does not suspend the operation of the Constitution nor abolish
civil courts or legislative assemblies, or vest jurisdiction to military
tribunals over civilians, or suspend the privilege of the writ. Please
forgive me if, at this point, I state that this constitutional provision
vindicates the dissenting opinions I have written during my tenure
in the Supreme Court in the martial law cases.129
_______________
129 Id., citing Closing remarks of the President of the Constitutional

Commission at the final session, Official Gazette, October 15, 1986
<http://www.gov.ph/1986/10/15/closing-remarks-of-the-president-of-the-
constitutional-commission-at-the-final-session-october-15-1986> (visited
November 7, 2016).

546

Ocampo vs. Enriquez
IX
In part, to implement these safeguards for human

rights, Republic Act No. 10368 was passed. Its statement of
policy is found in Section 2:
Section 2. Declaration of Policy.·Section 11 of Article II of the

1987 Constitution of the Republic of the Philippines declares that
the State values the dignity of every human person and guarantees
full respect for human rights. Pursuant to this declared policy,
Section 12 of Article III of the Constitution prohibits the use of
torture, force, violence, threat, intimidation or any other means
which vitiate the free will and mandates the compensation and
rehabilitation of victims of torture or similar practices and their
families.
By virtue of Section 2 of Article II of the Constitution adopting
generally accepted principles of international law as part of the law
of the land, the Philippines adheres to international human rights
laws and conventions, the Universal Declaration of Human Rights,
including the International Convenant on Civil and Political Rights
(ICCPR) and the Convention Against Torture (CAT) and Other
Cruel Inhuman or Degrading Treatment or Punishment which
imposes on each State party the obligation to enact domestic
legislation to give effect to the rights recognized therein and to
ensure that any person whose rights or freedoms have been violated
shall have an effective remedy, and even if the violation is
committed by persons acting in an official capacity. In fact, the right
to a remedy is itself guaranteed under existing human rights
character (jus cogens) and as such has been recognized as non-
derogable.
the State to recognize the 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 February 25, 1986

and restore the victimsÊ 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.
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Similarly, it is the obligation of the State to acknowledge the

sufferings and damages inflicted upon persons whose properties or
businesses were forcibly taken over, sequestered or used, or those
whose professions were damaged and/or impaired, or those whose
freedom of movement was restricted and/or impaired, and/or such
other victims of the violations of the Bill of Rights.
Thus, Section 2 of Republic Act No. 10368 states (2) two

state policies: (i) „to acknowledge the heroism and
execution, torture, enforced or involuntary disappearance
and other gross human rights violations‰ committed from
September 21, 1972 to February 25, 1986 during the
Marcos regime; and (ii) to restore their honor and
dignity.130
Section 2 of Republic Act No. 10368 likewise
acknowledges the StateÊs moral and legal obligation to
recognize and provide reparation to the victims and/or their
families for the deaths, injuries, sufferings, deprivations,
and damages they suffered under the Marcos regime. The
State also expressly acknowledged the sufferings and
damages inflicted upon: (i) persons whose properties or
businesses were forcibly taken over, sequestered or used;
(ii) those whose professions were damaged and/or impaired;
(iii) those whose freedom of movement was restricted;
and/or (iv) such other victims of the violations of the Bill of
Rights.131

_______________
130 See also Implementing Rules and Regulations of Rep. Act No.
10368, Sec. 3(a):
SECTION 3. Declaration of Policy.·Consistent with Sections 2 and
11 of Article II, and Section 12 of Article III of the 1987 Constitution of
the Republic of the Philippines, and adhering to international human
rights law and conventions, it is the declared policy of the State to:
a) Recognize the 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
February 25, 1986 and restore the victimsÊ honor and dignity[.]
131 See also Implementing Rules and Regulations of Rep. Act No.
10368, Sec. 3(b) and (c):
SECTION 3. Declaration of Policy.·Consistent with Sections 2 and
11 of Article II, and Section 12 of Article III of the 1987 Constitution of
the Repub-
548

Ocampo vs. Enriquez
The bases of these policies132 are found in the

Constitution. Section 11 of Article II of the 1987
Constitution provides:
ARTICLE II
....
State Policies
....

SECTION 11. The State values the dignity of every human person

and guarantees full respect for human rights.
Related to Article II, Section 11 is Section 9, which

provides:
SECTION 9. The State shall promote a just and dynamic social

order that will ensure the prosperity and independence of the
nation and free the people from poverty through policies that
provide adequate social services, promote full employment, a rising
standard of living, and an improved quality of life for all.
Article II, Section 10 goes further:
SECTION 10. The State shall promote social justice in all phases

of national development.
_______________
lic of the Philippines, and adhering to international human rights law

and conventions, it is the declared policy of the State to:
....
b) Acknowledge 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;
c) Acknowledge the sufferings and damages inflicted upon persons
whose properties or businesses were forcibly taken over, sequestered
or used, or those whose professions were damaged and/or impaired,
or those whose freedom of movement was restricted, and/or such
other victims of the violations of the Bill of Rights.
132 Rep. Act No. 10368, Sec. 2.
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These enhance the rights that are already enshrined in

the Bill of Rights.133
Under the Bill of Rights, Article III, Section 12(2) and

(4) of the Constitution provides:134
ARTICLE III
Bill of Rights
....
SECTION 12. . . .
(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.
....
(4) The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and their
families.
Republic Act No. 10368 provides for both government

policy in relation to the treatment of Martial Law victims
as well as these victimsÊ reparation and recognition. It
creates a Human Rights VictimsÊ Claims Board135 and
provides for its powers.136 Among the powers of the Board
is to „approve with finality all eligible claims‰137 under the
law.
_______________
133 Article III of the 1987 Constitution provides for the Bill of Rights.
The Bill of Rights was also found in Article 4 of the 1973 Constitution,
Article III of the 1935 Constitution; also the Title IV, Political
Constitution of the Malolos Constitution and the President McKinleyÊs
Instructions of April 7, 1900.

134 Rep. Act No. 10386, Sec. 2.

135 Id., Secs. 8 to 14 provide:
SECTION 8. Creation and Composition of the Human Rights VictimsÊ
Claims Board.·There is hereby created an independent and quasi-
judicial body to be known as the Human Rights VictimsÊ Claims Board,
hereinafter referred to as the Board. It shall be composed of nine (9)
members, who shall possess the following qualifications:
(a) Must be of known probity, competence and integrity;
550

Ocampo vs. Enriquez
_______________
(b) Must have a deep and thorough understanding and knowledge of

human rights and involvement in efforts against human rights
violations committed during the regime of former President
Ferdinand E. Marcos;
(c) At least three (3) of them must be members of the Philippine Bar
who have been engaged in the practice of law for at least ten (10)
years; and
(d) Must have a clear and adequate understanding and commitment to
human rights protection, promotion and advocacy.
The Human Rights VictimsÊ Claims Board shall be attached to but

shall not be under the Commission on Human Rights (CHR).
The Board shall organize itself within thirty (30) days from the
completion of appointment of all nine (9) members and shall thereafter
organize its Secretariat.
SECTION 9. Appointment to the Board.·The President shall
appoint the Chairperson and the other eight (8) members of the Board:
Provided, That human rights organizations such as, but not limited to,
the Task Force Detainees of the Philippines (TFDP), the Free Legal
Assistance Group (FLAG), the Movement of Attorneys for Brotherhood,
Integrity and Nationalism (MABINI), the Families of Victims of
Involuntary Disappearance (FIND) and the Samahan ng mga Ex-

Detainees Laban sa Detensyon at Aresto (SELDA) may submit

nominations to the President.
....
SECTION 11. Resolution of Claims.·The Board shall be composed
of three (3) divisions which shall function simultaneously and
independently of each other in the resolution of claims for reparation.
Each division shall be composed of one (1) Chairperson, who shall be a
member of the Philippine Bar and two (2) members to be appointed by
the Board En Banc.
SECTION 12. Emoluments.·The Chairperson and members of the
Board shall have the rank, salary, emoluments and allowances
equivalent to a Presiding Justice and Associate Justice of the Court of
Appeals, respectively.
SECTION 13. Secretariat of the Board.·The Board shall be assisted
by a Secretariat which may come from the existing personnel of the CHR,
without prejudice to the hiring of additional personnel as determined by
the Board to accommodate the volume of required work. The following
shall be the functions of the Secretariat:
(a) Receive, evaluate, process and investigate applications for claims

under this Act;
(b) Recommend to the Board the approval of applications for claims;
(c) Assist the Board in technical functions;
(d) Perform other duties that may be assigned by the Board.
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_______________
The Chairperson of the Board shall appoint a Board Secretary who

shall head the Secretariat for the duration of the existence of the Board.
There shall be a Technical Staff Head assisted by five (5) Legal Officers
and three (3) Paralegal Officers; and an Administrative Staff Head
assisted by three (3) Administrative Support Staff.
When necessary, the Board may hire additional contractual employees
or contract a service provider to provide services of counselors,

psychologists, social workers and public education specialists, among

others, to augment the services of the Secretariat: Provided, That the
maximum contract amount per year shall not exceed more than fifteen
percent (15%) of the total annual operating budget of the Board.
SECTION 14. Operating Budget of the Board.·The operating
budget of the Board shall be funded from the Ten billion peso
(P10,000,000,000.00) fund, with Ten million pesos (P10,000,000.00) as its
initial operating budget: Provided, That it shall not exceed Fifty million
pesos (P50,000,000.00) a year.
136 Id., Sec. 10 provides:
SECTION 10. Powers and Functions of the Board.·The Board shall
have the following powers and functions:
(a) Receive, evaluate, process and investigate applications for claims

under this Act;
(b) Issue subpoena/s ad testificandum and subpoena/s duces tecum;
(c) Conduct independent administrative proceedings and resolve
disputes over claims;
(d) Approve with finality all eligible claims under this Act;
(e) Deputize appropriate government agencies to assist it in order to
effectively perform its functions;
(f) Promulgate such rules as may be necessary to carry out the
purposes of this Act, including rules of procedure in the conduct of
its proceedings, with the Revised Rules of Court of the Philippines
having suppletory application;
(g) Exercise administrative control and supervision over its
Secretariat;
(h) The Board, at its discretion, may consult the human rights
organizations mentioned in Section 9 herein; and
(i) Perform such other duties, functions and responsibilities as may be
necessary to effectively attain the objectives of this Act.
137 Id., Sec. 10(d) provides:

SECTION 10. Powers and Functions of the Board.·The Board shall
have the following powers and functions:
....
(d) Approve with finality all eligible claims under this Act[.]
552


Ocampo vs. Enriquez
This law provides for the process of recognition of

Martial Law victims.138 There are victims who are allowed
to initiate their petitions,139
_______________
138 Id., Secs. 16, 17, 18. A point system is provided in Section 19.
Section 21 provides for the filing of sworn statements „narrating the
circumstances of the pertinent human rights violations committed.‰
Section 23 provides for a period to file claims. Section 24 provides for a
system of appeal. Section 25 provides penalties for fraudulent claims,
and various misuse of the funds dedicated for the implementation of the
law.
SECTION 16. Claimants.·Any person who is an HRVV may file a
claim with the Board for reparation and/or recognition in accordance
with the provisions of this Act.
SECTION 17. Conclusive Presumption That One is an HRVV Under
This Act.·The claimants in the class suit and direct action plaintiffs in
the Human Rights Litigation Against the Estate of Ferdinand E. Marcos
Honolulu, Hawaii wherein a favorable judgment has been rendered, shall
be extended the conclusive presumption that they are HRVVs: Provided,
That the HRVVs recognized by the Bantayog ng mga Bayani Foundation
shall also be accorded the same conclusive presumption: Provided,
further, That nothing herein shall be construed to deprive the Board of
its original jurisdiction and its inherent power to determine the extent of
the human rights violations and the corresponding reparation and/or
recognition that may be granted.
SECTION 18. Motu Proprio Recognition.·The Board may take
judicial notice motu proprio of individual persons who suffered human
rights violations as defined herein and grant such persons recognition as
HRVVs and included in the Roll of Victims as provided for in Section 26
hereof.
....
SECTION 19. Determination of Award.·(a) The Board shall follow
the point system in the determination of the award. The range shall be
one (1) to ten (10) points, as follows:

(1) Victims who died or who disappeared and are still missing shall be
given ten (10) points;
(2) Victims who were tortured and/or raped or sexually abused shall be
given six (6) to nine (9) points;
(3) Victims who were detained shall be given three (3) to five (5) points;
and
(4) Victims whose rights were violated under Section 3, paragraph (b),
nos. (4), (5) and (6) under this Act shall be given one (1) to two (2)
points.
....
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_______________
SECTION 21. Documentation of Human Rights Violations

Committed by the Marcos Regime.·In the implementation of this Act
and without prejudice to any other documentary or other evidence that
may be required for the award of any reparation, any HRVV seeking
reparation shall execute a detailed sworn statement narrating the
circumstances of the pertinent human rights violation/s committed.
....
SECTION 23. Period for Filing of Claims; Waiver.·An HRVV shall
file an application for reparation with the Board within six (6) months
from the effectivity of the implementing rules and regulations (IRR) of
this Act: Provided, That failure to file an application within said period is
deemed a waiver of the right to file the same: Provided, further, That for
HRVVs who are deceased, incapacitated, or missing due to enforced
disappearance, their legal heir/s or representatives, shall be entitled to
file an application for reparation on their behalf.
Any opposition to the new application/s pursuant to Section 16 hereof
shall only be entertained if such is filed within fifteen (15) days from the
date of the last publication of the official list of eligible claimants as may
be determined by the Board. The Board shall cause the publication of the
official list of eligible claimants once a week for three (3) consecutive

weeks in at least two (2) national newspapers of general circulation.

SECTION 24. Appeal.·Any aggrieved claimant or oppositor may
file an appeal within ten (10) calendar days from the receipt of the
Resolution of the Division, to the Board En Banc, whose decision shall
then become final and executory.
SECTION 25. Penalties; Applicability of the Revised Penal Code.·
Any claimant who is found by the Board, after due hearing, to have filed
a fraudulent claim, shall be referred to the appropriate office for
prosecution. If convicted, he shall suffer the imprisonment of eight (8) to
ten (10) years, shall be disqualified from public office and employment
and shall be deprived of the right to vote and be voted for in any national
or local election, even after the service of sentence unless granted
absolute pardon.
Any member of the Board and its Secretariat, public officer, employee
of an agency or any private individual mandated to implement this Act,
who shall misuse, embezzle or misappropriate the funds for the
reparation of HRVVs or who shall commit fraud in the processing of
documents and claims of HRVVs, or shall conspire with any individual to
commit the same, shall also be prosecuted.
Any member of the Board and its Secretariat, public officer, employee
of an agency or any private individual mandated to implement this Act,
who may
554

Ocampo vs. Enriquez
those who are conclusively presumed,140 and those who

may be motu proprio be recognized by the Board141 even
without an initiatory petition.
Republic Act No. 10368 codifies four (4) obligations of
the State in relation to the Martial Law regime of
Ferdinand E. Marcos:
First, to recognize the heroism and sacrifices of victims
of summary execution, torture, enforced or involuntary
disappearance, and other gross violations of human rights;
Second, to restore the honor and dignity of human rights
victims;

Third, to provide reparation to human rights victims

and their families; and
Fourth, to ensure that there are effective remedies to
these human rights violations.
_______________
have been found guilty of committing any or all of the prohibited acts
stated in the preceding paragraph, or those acts punishable under the
Revised Penal Code, shall be penalized under the pertinent provisions in
the Code and relevant special penal laws.
139 Id., Sec. 16, in relation to the definition of victim in Sec. 3(b),
provides:
SECTION 16. Claimants.·Any person who is an HRVV may file a
claim with the Board for reparation and/or recognition in accordance
with the provisions of this Act.
SECTION 17. Conclusive Presumption That One is an HRVV Under
This Act.·The claimants in the class suit and direct action plaintiffs in
the Human Rights Litigation Against the Estate of Ferdinand E. Marcos
Honolulu, Hawaii wherein a favorable judgment has been rendered, shall
be extended the conclusive presumption that they are HRVVs: Provided,
That the HRVVs recognized by the Bantayog ng mga Bayani Foundation
shall also be accorded the same conclusive presumption: Provided,
further, That nothing herein shall be construed to deprive the Board of
its original jurisdiction and its inherent power to determine the extent of
the human rights violations and the corresponding reparation and/or
recognition that may be granted.
SECTION 18. Motu Proprio Recognition.·The Board may take
judicial notice motu proprio of individual persons who suffered human
rights violations as defined herein and grant such persons recognition as
HRVVs and included in the Roll of Victims as provided for in Section 26
hereof.
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Based on the text of this law, human rights violations

during the „regime of former President Ferdinand E.
Marcos covering the period from September 21, 1972 to
February 25, 1986‰ are recognized. Despite his claim of
having won the snap elections for President in 1985, Fer-
dinand E. Marcos was unceremoniously spirited away from
Malacañan to Hawaii as a result of the PeopleÊs uprising
now known as „People Power.‰ The legitimacy of his ouster
from power was subsequently acknowledged by this Court
in LawyersÊ League for a Better Philippines and in In re
Saturnino Bermudez, which were both decided in 1986.
This recognition of human rights violations is even
clearer in the lawÊs definition of terms in Republic Act No.
10368, Section 3(b):
(b) Human rights violation refers to any act or omission

committed during the period from September 21, 1972 to February
25, 1986 by persons acting in an official capacity and/or agents of
the State, but shall not be limited to the following:
(1) Any search, arrest and/or detention without a valid

search warrant or warrant of arrest issued by a civilian court
of law, including any warrantless arrest or detention carried
out pursuant to the declaration of Martial Law by former
President Ferdinand E. Marcos as well as any arrest,
detention or deprivation of liberty carried out during the
covered period on the basis of an Arrest, Search and Seizure
Order (ASSO), a Presidential Commitment Order (PCO), or a
Preventive Detention Action (PDA) and such other similar
executive issuances as defined by decrees of former President
Ferdinand E. Marcos, or in ay manner that the arrest,
detention or deprivation of liberty was effected;
(2) The infliction by a person acting in an official capacity

and or an agent of the State of physical injury, torture,
killing, or violation of other human rights, of any person
exercising civil or political rights, including but not limited to
the freedom of speech, assembly or organization; and/or the
right to petition the government for redress of grievances,
even if such violation took place during or in the course of
what the authorities at the time deemed an illegal assembly

or demon-
556

Ocampo vs. Enriquez
stration: Provided, That torture in any form or under any

circumstance shall be considered a human rights violation;
(3) Any enforced or involuntary disappearance caused upon

a person who was arrested, detained or abducted against
oneÊs will or otherwise deprived of oneÊs liberty, as defined in
Republic Act No. 10350, otherwise known as the ÂAnti-
Enforced or Involuntary Disappearance Act of 2012Ê;
(4) Any force or intimidation causing the involuntary exile

of a person from the Philippines;
(5) Any act of force, intimidation or deceit causing unjust or

illegal takeover of a business, confiscation of property,
detention of owner/s and or their families, deprivation of
livelihood of a person by agents of the State, including those
caused by Ferdinand E. Marcos, his spouse Imelda R. Marcos,
their immediate relatives by consanguinity or affinity, as well
as those persons considered as among their close relatives,
associates, cronies and subordinates under Executive Order
No. 1, issued on February 28, 1986 by then President Corazon
C. Aquino in the exercise of her legislative powers under the
Freedom ConstitutionÊ;
(6) Any act or series of acts causing, committing and/or

conducting the following:
„(i) Kidnapping or otherwise exploiting children of

persons suspected of committing acts against the
Marcos regime;
„(ii) Committing sexual offenses against human rights

victims who are detained and/or in the course of

conducting military and/or police operations; and
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„(iii) Other violations and/or abuses similar or

analogous to the above, including those recognized by
international law.‰142
Human rights violations during Martial Law were state-

sponsored. Thus, Republic Act No. 10368, Section 3(c)
defines Human Rights Victims as:
(c) Human Rights Violations Victim (HRVV) refers to a person

whose human rights were violated by persons acting in an official
capacity and/or agents of the State as defined herein. In order to
qualify for reparation under this Act, the human rights violation
must have been committed during the period from September 21,
1972 to February 25, 1986: Provided, however, That victims of
human rights violations that were committed one (1) month before
September 21, 1972 and one (1) month after February 25, 1986
shall be entitled to reparation under this Act if they can establish
that the violation was committed:
(1) By agents of the State and/or persons acting in an official

capacity as defined hereunder;
(2) For the purpose of preserving, maintaining, supporting

or promoting the said regime; or
(3) To conceal abuses during the Marcos regime and/or the

effects of Martial Law.143
Section 3(d) of this law defines the violators to include

persons acting in an official capacity and/or agents of the

State:
(d) Persons Acting in an Official Capacity and/or Agents of the

State.·The following persons shall be deemed persons acting in an
official capacity and/or agents of the State under this Act:
(1) Any member of the former Philippine Constabulary (PC),

the former Integrated National Policy (INP), the Armed
Forces of the Philippines (AFP) and the Civilian
_______________
142 Id., Sec. 3(b).

143 Id., Sec. 3(c).
558

Ocampo vs. Enriquez
Home Defense Force (CHDF) from September 21, 1972 to

February 25, 1986 as well as any civilian agent attached
thereto: and any member of a paramilitary group even if one
is not organically part of the PC, the INP, the AFP or the
CHDF so long as it is shown that the group was organized,
funded, supplied with equipment, facilities and/or resources,
and/or indoctrinated, controlled and/or supervised by any
person acting in an official capacity and/or agent of the State
as herein defined;
(2) Any member of the civil service, including persons who

held elective or appointive public office at any time from
September 21, 1972 to February 25, 1986;
(3) Persons referred to in Section 2(a) of Executive Order

No. 1, creating the Presidential Commission on Good
Government (PCGG), issued on February 28, 1986 and
related laws by then President Corazon C. Aquino in the
exercise of her legislative powers under the Freedom
Constitution, including former President Ferdinand E.

Marcos, spouse Imelda R. Marcos, their immediate relatives

by consanguinity or affinity, as well as their close relatives,
associates, cronies and subordinates; and
(4) Any person or group/s of persons acting with the

authorization, support or acquiescence of the State during the
Marcos regime.144
In clear and unmistakable terms, the law recognizes the

culpability of Ferdinand E. Marcos for acts of summary
execution, torture, enforced or involuntary disappearances,
and other gross violations of human rights. The law
likewise implies that not only was he the President that
presided over those violations, but that he and his spouse,
relatives, associates, cronies, and subordinates were active
participants.
Burying the remains of Ferdinand E. Marcos at the
Libingan ng mga Bayani violates Republic Act No. 10368
as the act may be considered as an effort „to conceal abuses
during the Marcos regime‰ or to „conceal . . .
_______________
144 Id., Sec. 3(d).
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Ocampo vs. Enriquez
the effects of Martial Law.‰145 Its symbolism is

unmistakable. It undermines the recognition of his
complicity. Clearly, it is illegal.
„Libingan ng mga Bayani‰ is a label created by a

presidential proclamation. The Libingan ng mga Bayani

was formerly known as the Republic Memorial Cemetery.

In 1954, under Proclamation No. 86, the Republic
Memorial Cemetery was renamed to Libingan ng mga
Bayani for symbolic purposes, to express esteem and
reverence for those buried there:
WHEREAS, the name „Republic Memorial Cemetery‰ at Fort Wm

McKinley, Rizal province, is not symbolic of the cause for which our
soldiers have died, and does not truly express the nationÊs esteem
and reverence for her war dead;
NOW, THEREFORE, I, Ramon Magsaysay, President of the

declare that the „Republic Memorial Cemetery‰ shall henceforth be
called „LIBINGAN NG MGA BAYANI.‰
Thus, Proclamation No. 86 is a recognition of the

nationÊs intent to honor, esteem, and revere its war dead.
To further this intention, it changed the name of the
cemetery to the Libingan ng mga Bayani. From this act
alone, it is clear that the name of the cemetery conveys
meaning. The Libingan ng mga Bayani was named as such
to honor and esteem those who are and will be buried
there.
If there was no intention to bestow any recognition upon
Ferdinand E. Marcos as a hero, then he should not be
buried at the Libingan ng mga Bayani. If the President
wanted to allot a portion of public property to bury
Ferdinand E. Marcos without according him the title of a
hero, the President had other options. The President had
the power to select a different cemetery where Marcos was
to be buried.
_______________
145 Id., Sec. 3(c).
560


Ocampo vs. Enriquez
Likewise, before ordering the interment, the President

did not amend the name through his own presidential
proclamation. Therefore, the intent to bury him with
honors is clearly legible, totally unequivocal, and
dangerously palpable.
Having the remains of Ferdinand E. Marcos in a
national shrine called the Libingan ng mga Bayani
undeniably elevates his status. It produces an indelible
remark on our history. It commingles his name and his
notorious legacy with the distinctively heroic and
exemplary actions of all those privileged to be buried there.
The transfer of Ferdinand E. MarcosÊ remains violates
the policy of full and public disclosure of the truth. It
produces an inaccurate account of the violations
committed. It will fail to educate all sectors of society and
all generations of the human rights violations committed
under his watch. It is a violation of the fundamental
statutory policy of recognition of the human rights
violations committed during the Marcos regime.
As pointed out by the Commission on Human Rights:
17. Crucial to the Satisfaction component of effective reparation

is the official acknowledgment of the truth of the abuses and
violations that the victim suffered, including an acknowledgment of
the responsibility of the perpetrator as well as a public apology.
18. Burying the remains of Ferdinand Marcos at the LNMB
with the pomp and pageantry accorded to a hero is the complete
antithesis of any such apology, and would constitute a denial or
reversal of any previous acknowledgment of his many sins against
the victims of human rights violations under his government. It is
an act that, for all of the discussion as to what „bayani‰ means, will
inevitably extol him and his actions in government for all future
generations. . . .
19. Moreover, the burial of Mr. MarcosÊ remains at the LNMB
sends a very dangerous message to Philippine society and even to
the world by treating him as a hero, and violates the Guarantee of
Non-Repetition component of effective reparations. . . .
20. To bury a legally confirmed human rights violator as hero
would fly in the face of any effort to educate the Filipino people on

the importance of human rights, and would, rather than promote

reform in favor of respect for human rights, tend to promote
impunity
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Ocampo vs. Enriquez
by honoring a man known all over the world for having perpetrated
human rights violations for nearly two decades in order to
perpetuate his hold on power;
21. Worse still, this would even send a message to other leaders
that adopting a similar path of abuse and violations that
characterized the Marcos dictatorship would ultimately result not
in condemnation but instead acknowledgment and accolades of
heroism, constituting thereby a set of circumstance not
contemplated by the holistic notion of reparation, in particular
violating both the standard of Satisfaction and the Guarantee of
Non-Repetition. Therefore, this will not only deprive the victims of
human rights violations of their right to effective reparations but
will place future generations in genuine peril of the real prospect of
coming face-to-face once more with authoritarian rule characterized
by rampant human rights violations.146
The interment of the remains of Ferdinand E. Marcos at

the Libingan ng mga Bayani necessarily implies two (2)
things: the honoring of Ferdinand E. Marcos; and the
allotting of a portion of public property for this act.
The act of burying in itself has always been more than
an act of disposing of dead bodies. A burial is a manner of
memorializing and paying respects to a deceased person.
Implicit in these ceremonies is the preservation of the
memory of the person for his good or valiant deeds.
This cultural practice is not limited to private persons.
The same practice applies when it is the State burying the
deceased person. The act of burying a body under the
sanction of the State means that it is the State itself paying

its respects to the dead person and memorializing him or

her for his or her good and valiant deeds. It is never done to
remember past transgressions. Thus, burials are acts of
honoring. And when the burial is state-sanctioned, it is the
State that honors the deceased person.
This is more emphasized when the place of interment is
the Libingan ng mga Bayani. Again, whether or not one
subscribes to the idea that the Libingan ng mga Bayani is
a cemetery for the countryÊs heroes, from
_______________
146 Commission on Human Rights Memorandum, pp. 9-16.
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Ocampo vs. Enriquez
the publicÊs perspective, those buried at the Libingan ng

mga Bayani are respected, revered, admired, and seen with
high regard. To say otherwise is ridiculous. Although not
all who are buried at the Libingan ng mga Bayani are
recognized by the public, the public recognizes the
distinction of being buried there. Those who are and will be
buried there are accorded honors not only by their own
families, but by the State itself.
It is impossible for the State to bury Ferdinand E.
Marcos at the Libingan ng mga Bayani without according
him, or his memory, any honor.
Given these considerations, the transfer of the remains
of Ferdinand E. Marcos at the Libingan ng mga Bayani
violates Republic Act No. 10368. It is inconsistent with the
StateÊs public policies as stated in Republic Act No. 10368.
In Avon Cosmetics, Inc. v. Luna,147 this Court discussed
the meaning and relevance of public policy:
And what is public policy? In the words of the eminent Spanish

jurist, Don Jose Maria Manresa, in his commentaries of the Codigo

Civil, public policy (orden público):
[R]epresents in the law of persons the public, social and legal

interest, that which is permanent and essential of the
institutions, that which, even if favoring an individual in
whom the right lies, cannot be left to his own will. It is an
idea which, in cases of the waiver of any right, is manifested
with clearness and force.
As applied to agreements, Quintus Mucius Scaevola, another

distinguished civilist gives the term „public policy‰ a more defined
meaning:
Agreements in violation of orden públic must be considered as

those which conflict with law, whether properly, strictly and
wholly a public law (derecho) or whether a law of the person,
but law which in certain respects affects the interest of
society.
_______________
147 540 Phil. 389; 511 SCRA 376 (2006) [Per J. Chico-Nazario, First
Division].
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Plainly put, public policy is that principle of the law which holds
that no subject or citizen can lawfully do that which has a tendency
to be injurious to the public or against the public good. As applied to
contracts, in the absence of express legislation or constitutional
prohibition, a court, in order to declare a contract void as against
public policy, must find that the contract as to the consideration or
thing to be done, has a tendency to injure the public, is against the
public good, or contravenes some established interests of society, or
is inconsistent with sound policy and good morals, or tends clearly
to undermine the security of individual rights, whether of personal
liability or of private property.148 (Emphasis supplied, citations

omitted)
The StateÊs fundamental policies are laid out in the

Constitution. The rest are embodied in statutes enacted by
the legislature. The determination of policies is a
legislative function, consistent with the CongressÊ power to
make, alter, and repeal laws.149
It is not the President alone who determines the StateÊs
policies. The President is always bound by the Constitution
and the StateÊs statutes and is constitutionally mandated
to „ensure that the laws be faithfully executed.‰150 To
execute laws, the President must faithfully comply with all
of them. He cannot ignore the laws for a particular group of
people or for private interests. The President cannot ignore
the laws to execute a policy that he determined on his own.
He cannot ignore the laws to fulfill a campaign promise
that may or may not have been the reason why he won the
PeopleÊs votes. Thus, the President is bound to comply with
and execute Republic Act No. 10368.
Republic Act No. 10368Ês state policies are again as
follows:
First, to recognize the heroism and sacrifices of all
Filipinos who had been victims of summary execution,
torture, enforced or involuntary disappearance, and other
gross human rights violations committed dur-
_______________
148 Id., at pp. 404-405; pp. 393-394.

149 Government of the Philippine Islands v. Springer, 50 Phil. 259,
276 (1927) [Per J. Malcolm, Second Division], citing CooleyÊs
Constitutional Limitations, 7th ed., pp. 126, 131, 157-162.
150 CONST., Art. VII, Sec. 17.
564

Ocampo vs. Enriquez

ing the regime of Ferdinand E. Marcos covering the period

from September 21, 1972 to February 25, 1986; and
Second, to restore the victimsÊ honor and dignity.
The nature of Ferdinand E. MarcosÊ burial at the
Libingan ng mga Bayani contravenes these public policies.
The StateÊs act of according any honor to Ferdinand E.
Marcos grossly contradicts, and is highly irreconcilable
with, its own public policies to recognize the heroism and
sacrifices of the Martial Law victims and restore these
victimsÊ honor and dignity.
To allow Ferdinand E. MarcosÊ burial is inconsistent
with honoring the memory of the Martial Law victims. It
conflicts with their recognized heroism and sacrifice, and as
most of them testified, it opens an avenue for their re-
traumatization. These victimsÊ honor, which the State
avowed to restore, is suddenly questionable because the
State is also according honor and allotting public property
to the person responsible for their victimization. The
victimsÊ state recognition is put into doubt when the
President decided to act favorably towards the person who
victimized them.
XI
Public respondentsÊ contention that Ferdinand E.

Marcos will not be buried as a hero, but only as a
President, soldier, and Medal of Valor Awardee, fails to
convince:
JUSTICE LEONEN:
I am not challenging whether the action of the President was

regular or not, thatÊs not the point. The point is, you know for a fact
that it was a proclamation creating the Libingan ng mga Bayani,
and now without changing the name, they are now, the President,
according to you, verbally ordered the interment of the remains of
the former President. Yet now, you take the position that the
intention of government is not to honor the body of Ferdinand
Marcos as the body of a hero. Although the LibinganÊs name is
Libingan ng mga Bayani. So, can you explain that?

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Ocampo vs. Enriquez
But, as I said, Your Honor, in my opening statement, that is not

the purpose to bury him as a hero. But, by military standards, Your
Honor, former President Marcos fits in to the definition of a hero.
As defined by the LagmanÊs Petition, Your Honor.
JUSTICE LEONEN:
Excuse me, Counsel, a while ago, this morning, before we took

lunch, you said that there was no intention to honor. In fact, you
read from your Comment, that there was no intention to bury the
President as a hero.
Yes, we stand by that, Your Honor.
JUSTICE LEONEN:
Okay.
However, based on the military standards given to a Medal of

Valor awardee, he fits in to the definition which was proposed by
Petitioner Lagman, Your Honor.
JUSTICE LEONEN:
A Medal of Valor awardee, is he or she a hero?
May I read into the records, Your Honor.
JUSTICE LEONEN:
A Medal of Valor, please do not ignore my question.

Yes.
JUSTICE LEONEN:
A Medal of Valor awardee, is he a hero or not a hero? Is he or she

a hero or not a hero?
Based on the wordings of Presidential Decree 1687, Your Honor,

it says here, „The Medal of Valor is the highest award that may be
given to a Filipino soldier in recognition of conspicuous acts of
gallantry above and beyond a call of duty and in total disregard of
personal safety; Whereas, an awardee of the Medal of Valor for his
supreme self-sacrifice and distinctive act of gallantry, performed
more than ordinarily hazardous service and deserved due
recognition from a grateful government and people.‰ . . .
566

Ocampo vs. Enriquez
JUSTICE LEONEN:
Is this a Presidential Decree, Counsel?
. . . the definition, Your Honor, in the Lagman Petition . . .
JUSTICE LEONEN:
Is this a Presidential Decree?
Yes, Your Honor.
JUSTICE LEONEN:
Who issued the Presidential Decree?

....
Well, a judicial notice can be taken that it was during the term of
President Marcos, Your Honor.
JUSTICE LEONEN:
Ferdinand Marcos, who is a Medal of Valor awardee, issued this

Presidential Decree.
However, Your Honor, the Medal of Valor . . .
JUSTICE LEONEN:
No, no, no, however, he had the power to issue the Presidential
Decree, IÊm not questioning that. Okay, my question here, which
you ignored, is, is a Medal of Valor awardee a hero?
By the definition, Your Honor, he is a hero.
JUSTICE LEONEN:
So, therefore, you are going back against what you said in the
Comment . . .
But we will set aside that, Your Honor.
JUSTICE LEONEN:
How can you set that aside?
We will set it aside because . . .
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Ocampo vs. Enriquez
JUSTICE LEONEN:
Which part of Marcos will you not bury as a Medal of Valor

awardee and which part will you bury?
Because, Your Honor . . .
JUSTICE LEONEN:
ItÊs the same person.
. . . President DuterteÊs announcement is that he will allow the

burial not as a hero, but as a former president, a former veteran
and a soldier, thatÊs all, Your Honor.161
The claim that he is being buried only as a President,

soldier, and Medal of Valor awardee is a fallacy. When a
person is buried, the whole person is buried, not just parts
of him or her. Thus, if government buries and honors
Ferdinand E. MarcosÊ body as the body of a former soldier,
it will, at the same time, be burying and honoring the body
of a human rights violator, dictator, and plunderer. It is
impossible to isolate the President, soldier, and Medal of
Valor awardee from the human rights violator, dictator, and
plunderer.
XII
Apart from recognizing the normative framework and

the acknowledgment of human rights violations during the
Marcos regime, the law likewise acknowledges the StateÊs
obligation that „any person whose rights or freedoms have
been violated shall have an effective remedy.‰162 This right
to an „effective remedy‰ is available even if „the violation is
committed by persons acting in an official capacity.‰163
With the recognition of human rights victims of Martial
Law, the Board created by Republic Act No. 10368 may
provide „awards.‰164

_______________
161 TSN, Oral Arguments, September 7, 2016, pp. 156-159.

162 Rep. Act No. 10368, par. 2.
163 Id.
164 Id., Sec. 19.
568

Ocampo vs. Enriquez
Although this award has a monetary value,165 other duties

for government are likewise provided by law. There can be
nonmonetary reparation:
Section 5. Nonmonetary Reparation.·The Department of

Social Welfare and Development (DSWD), the Department of
Education (DepEd), the Commission on Higher Education (CHED),
the Technical Education and Skills Development Authority
(TESDA), and such other government agencies shall render the
necessary services as nonmonetary reparation for HRVVs and/or
their families, as may be determined by the Board pursuant to the
provisions of this Act[.]166
The phrase „other government agencies‰ includes public

respondents in these consolidated cases.
The law also requires the documentation of the human
rights violations committed during the Marcos regime:
Section 21. Documentation of Human Rights Violations

Committed by the Marcos Regime.·In the implementation of this
Act and without prejudice to any other documentary or other
evidence that may be required for the award of any reparation, any
HRVV seeking reparation shall execute a detailed sworn statement
narrating the circumstances of the pertinent human rights
violation/s committed.167

Further, memorialization is required under the law:
Section 26. Roll of Victims.·Persons who are HRVVs,

regardless of whether they opt to seek reparation or not, shall be
given recognition by enshrining their names in a Roll of Human
Rights Victims to be prepared by the Board.
A Memorial/Museum/Library shall be established in honor and
in memory of the victims of human rights violations whose names
_______________
165 Id., Sec. 19(c). The monetary value shall be dependent on a point
system.
166 Id., Sec. 5.
167 Id., Sec. 21.
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Ocampo vs. Enriquez
shall be inscribed in the Roll. A compendium of their sacrifices shall

be prepared and may be readily viewed and accessed in the
internet. The Memorial/Museum/Library/Compendium shall have
an appropriation of at least Five hundred million pesos
(P500,000,000.00) from the accrued interest of Ten billion pesos
(P10,000,000,000.00) fund.
The Roll may also be displayed in government agencies as may
be designated by the HRVV Memorial Commission as created
hereunder.
The Human Rights Violations VictimsÊ Memorial

Commission is given the task of making such memory
permanent. It is tasked to ensure that the atrocities that
happened during the Marcos regime are included in the
educational curricula of schools:
Section 27. Human Rights Violations VictimsÊ Memorial

Commission.·There is hereby created a Commission to be known

as the Human Rights Violations VictimsÊ Memorial Commission,

hereinafter referred to as the Commission, primarily for the
establishment, restoration, preservation and conservation of the
Memorial/Museum/Library/Compendium in honor of the HRVVs
....
The Commission shall be attached to the CHR solely for

budgetary and administrative purposes. The operating budget of
the Commission shall be appropriated from the General
Appropriations Act.
The Commission shall also coordinate and collaborate with the
DepEd and the CHED to ensure that the teaching of Martial Law
atrocities, the lives and sacrifices of HRVVs in our history are
included in the basic, secondary and tertiary education curricula.
The concept of an effective remedy can be read from the

law.
570

Ocampo vs. Enriquez
The requirements of effective remedies beyond monetary

compensation are also supported by jurisprudence. In
Department of Environment and Natural Resources v.
United Planners Consultants, Inc.:158
[E]very statutory grant of power, right or privilege is deemed to

include all incidental power, right or privilege. In Atienza v.
Villarosa, the doctrine was explained, thus:
No statute can be enacted that can provide all the details

involved in its application. There is always an omission that
may not meet a particular situation. What is thought, at the
time of enactment, to be an all-embracing legislation may be
inadequate to provide for the unfolding events of the future.

So-called gaps in the law develop as the law is enforced. One

of the rules of statutory construction used to fill in the gap is
the doctrine of necessary implication. The doctrine states that
what is implied in a statute is as much a part thereof as that
which is expressed. Every statute is understood, by
implication, to contain all such provisions as may be
necessary to effectuate its object and purpose, or to make
effective rights, powers, privileges or jurisdiction which it
grants, including all such collateral and subsidiary
consequences as may be fairly and logically inferred from its
terms. Ex necessitate legis. And every statutory grant of
power, right or privilege is deemed to include all incidental
power, right or privilege. This is so because the greater
includes the lesser, expressed in the maxim, in eo plus sit,
simper inest et minus.159
Persuasive, as it dovetails with the requirements of our

Constitution and our statutes, are international laws and
treaties providing for the right to a remedy for victims of
international human rights law. This has been recognized
in Article 8160 of the Universal Declaration of Hu-
_______________
158 G.R. No. 212081, February 23, 2015, 751 SCRA 389 [Per J.
Perlas-Bernabe, First Division].
159 Id., at pp. 404-405, citing Atienza v. Villarosa, 497 Phil. 689; 458
SCRA 385 (2005) [Per J. Callejo, Sr., En Banc].
160 Universal Declaration of Human Rights, Art. 8 provides:
571
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Ocampo vs. Enriquez
man Rights; Article 2161 of the International Covenant on

Civil and Political Rights; Article 6162 of the International
Convention on the Elimi-

_______________
Article 8. Everyone 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.
161 International Covenant of Civil and Political Rights, Art. 2
provides:
Article 2.
1. Each State Party to the present Covenant undertakes to respect and

to ensure to all individuals within its territory and subject to its
other status.
2. Where not already provided for by existing legislative or other
measures, each State Party to the present Covenant undertakes to
take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt
such legislative or other measures as may be necessary to give effect
to the rights recognized in the present Covenant.
notwithstanding that the violation has been committed by
persons acting in an official capacity;
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;
162 International Convention on the Elimination of All Forms of

Racial Discrimination, Art. 6 provides:
Article 6. States Parties shall assure to everyone within their
jurisdiction effective protection and remedies, through the competent
national tribunals and other State institutions, against any acts of racial
discrimination which violate his human rights and fundamental
freedoms contrary to this Convention, as well as the right to seek from
such tribunals just and adequate reparation or satisfaction for any

damage suffered as a result of such discrimination.
572

Ocampo vs. Enriquez
nation of All Forms of Racial Discrimination; Article 14163

of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment; and
Article 39164 of the Convention on the Rights of the Child.
The right to a remedy is also an obligation in Article 3165 of
the Hague Convention Respecting the Laws and Customs
of War on Land of 18 October 1907 (Convention IV); Article
91166 of the Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts (Protocol I) of 8 June
1977; and Article 68167 and Article 75168 of the Rome
Statute of the International Criminal Court. Additionally,
the Rome Statute of the International
_______________
163 Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, Art. 14 provides:
Article 14.
1. Each State Party shall ensure in its legal system that the victim of
an act of torture obtains redress and has an enforceable right to fair
and adequate compensation, including the means for as full
rehabilitation as possible. In the event of the death of the victim as
a result of an act of torture, his dependants shall be entitled to
compensation.
2. Nothing in this article shall affect any right of the victim or other
persons to compensation which may exist under national law.
164 Convention on the Rights of the Child, Art. 39 provides:

Article 39. States Parties shall take all appropriate measures to
promote physical and psychological recovery and social reintegration of a

child victim of any form of neglect, exploitation, or abuse; torture or any

other form of cruel, inhuman or degrading treatment or punishment; or
armed conflicts. Such recovery and reintegration shall take place in an
environment which fosters the health, self-respect and dignity of the
child.
165 Hague Convention Respecting the Laws and Customs of War on
Land, Art. 3 provides:
Article 3. A belligerent party which violates the provisions of the
said Regulations shall, if the case demands, be liable to pay
compensation. It shall be responsible for all acts committed by persons
forming part of its armed forces.
166 Protocol Additional to the Geneva Conventions, Art. 91 provides:
Article 91. Responsibility.·A Party to the conflict which violates the
provisions of the Conventions or of this Protocol shall, if the case
demands, be liable to pay compensation. It shall be responsible for all
acts committed by persons forming part of its armed forces.
167 Rome Statute of the International Criminal Court, Art. 68
provides:
Article 68. Protection of the victims and witnesses and their
participation in the proceedings.·
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Ocampo vs. Enriquez
_______________
1. The Court shall take appropriate measures to protect the safety,

physical and psychological well-being, dignity and privacy of victims
and witnesses. In so doing, the Court shall have regard to all
relevant factors, including age, gender as defined in Article 7,
paragraph 3, and health, and the nature of the crime, in particular,
but not limited to, where the crime involves sexual or gender
violence or violence against children. The Prosecutor shall take such
measures particularly during the investigation and prosecution of
such crimes. These measures shall not be prejudicial to or
inconsistent with the rights of the accused and a fair and impartial
trial.

2. As an exception to the principle of public hearings provided for in

Article 67, the Chambers of the Court may, to protect victims and
witnesses or an accused, conduct any part of the proceedings in
camera or allow the presentation of evidence by electronic or other
special means. In particular, such measures shall be implemented in
the case of a victim of sexual violence or a child who is a victim or a
witness, unless otherwise ordered by the Court, having regard to all
the circumstances, particularly the views of the victim or witness.
3. Where the personal interests of the victims are affected, the Court
shall permit their views and concerns to be presented and
considered at stages of the proceedings determined to be
appropriate by the Court and in a manner which is not prejudicial to
or inconsistent with the rights of the accused and a fair and
impartial trial. Such views and concerns may be presented by the
legal representatives of the victims where the Court considers it
appropriate, in accordance with the Rules of Procedure and
Evidence.
4. The Victims and Witnesses Unit may advise the Prosecutor and the
Court on appropriate protective measures, security arrangements,
counselling and assistance as referred to in Article 43, paragraph 6.
5. Where the disclosure of evidence or information pursuant to this
Statute may lead to the grave endangerment of the security of a
witness or his or her family, the Prosecutor may, for the purposes of
any proceedings conducted prior to the commencement of the trial,
withhold such evidence or information and instead submit a
summary thereof. Such measures shall be exercised in a manner
which is not prejudicial to or inconsistent with the rights of the
accused and a fair and impartial trial.
6. State may make an application for necessary measures to be taken
in respect of the protection of its servants or agents and the
protection of confidential or sensitive information.
168 Id., Art. 75 provides:
575
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Ocampo vs. Enriquez

Criminal Court requires that the „principles relating to

reparations to, or in respect of, victims, including
restitution, compensation and rehabilitation‰169 be
established by state parties.
Except for the Hague Convention of 1907, the
Philippines has ratified all of these international
conventions.170 The contents of the Hague Con-
_______________
Article 75. Reparations to victims.·
1. The Court shall establish principles relating to reparations to,

or in respect of victims, including restitution, compensation and
rehabilitation. On this basis, in its decision the Court may, either
upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to,
or in respect of, victims and will state the principles on which it is
acting.
2. The Court may make an order directly against a convicted
person specifying appropriate reparations to, or in respect of,
victims, including restitution, compensation and rehabilitation.
Where appropriate, the Court may order that the award for
reparations be made through the Trust Fund provided for in
Article 79.
3. Before making an order under this article, the Court may
invite and shall take account of representations from or on behalf
of the convicted person, victims, other interested persons or
interested States.
4. In exercising its power under this article, the Court may, after
a person is convicted of a crime within the jurisdiction of the
Court, determine whether, in order to give effect to an order
which it may make under this article, it is necessary to seek
measures under Article 93, paragraph 1.
A State Party shall give effect to a decision under this article as if the
provisions of Article 109 were applicable to this article.
169 Id.
170 The Philippines signed and approved the Universal Declaration
on Human Rights on December 10, 1948 as part of the United Nations
General Assembly that adopted it; ratified the International Convention
on Civil and Political Rights on October 23, 1986; the International

Convention on the Elimination of All Forms of Racial Discrimination on

September 15, 1967; the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment on June 26, 1987;
Convention on the Rights of the Child on Augnst 21, 1990; the Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I) of
June 8, 1977 on March 30, 2012; the Rome Statute of the International
Criminal Court on August 30, 2011.
575
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Ocampo vs. Enriquez
vention of 1907 already form part of customary

international law embodying much of the foundation of
international humanitarian law. All the obligations in
these treaties are already part of our laws.
We take a closer look at the International Convention on
Civil and Political Rights (ICCPR). Part II, Article 2,
Section 3 provides:
PART II
Article 2
....

acting in an official capacity;
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;


remedies when granted. (Emphasis supplied)
The United Nations General Assembly later adopted

Resolution No. 60/147, which embodied 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 (Basic Principles).171 The Basic
Principles was adopted to affirm and expound on the right
of victims to a remedy as provided for in the ICCPR and
other international laws and treaties. It is persuasive in
the ICCPRÊs interpretation and contributes to achieving
_______________
171 UN G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (16 December

2005). The Basic Principles and Guidelines were recommended by the
UN Commission on Human Rights in its resolution 2005/35 dated April
19, 2005 and by the Economic and Social Council also in its resolution
dated 2005/30 dated July 25, 2005.
576

Ocampo vs. Enriquez
the full guarantee for respect of human rights required by

the Constitution.
The Basic Principles does not entail new international
obligations. The document only identifies „mechanisms,
modalities, procedures and methods for the implementation
of existing legal obligations under international human
rights law and international humanitarian law which are
complementary through different as to their norms.‰172
Under the Basic Principles, the dignity of victims must
be respected, and their well-being ensured. The State must

take measures to safeguard that its laws protect the

victims from re-traumatization:
VI. Treatment of victims
10. Victims should be treated with humanity and respect for

their dignity and human rights, and appropriate measures should
be taken to ensure their safety, physical and psychological well-
being and privacy, as well as those of their families. The State
should ensure that its domestic laws, to the extent possible, provide
that a victim who has suffered violence or trauma should benefit
from special consideration and care to avoid his or her re-
traumatization in the course of legal and administrative procedures
designed to provide justice and reparation.
The victimsÊ right to a remedy under the Basic

Principles includes adequate, effective, and prompt
reparation for harm suffered:
VII. VictimsÊ right to remedies
11. Remedies for gross violations of international human rights

law and serious violations of international humanitarian law
include the victimÊs right to the following as provided for under
international law:
_______________
172 Basic Principles, 7th whereas clause provides:

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[.]
577
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Ocampo vs. Enriquez
(a) Equal and effective access to justice;

(b) Adequate, effective and prompt reparation for harm
suffered;
(c) Access to relevant information concerning violations
and reparation mechanisms.
The Basic Principles further elucidates the reparation to

which the victims are entitled. It provides that the
reparation must be proportional to the harm suffered. The
general concept of reparation and effective remedies is
found in Principles 15 and 18 of the Basic Principles:
15. Adequate, effective and prompt reparation is intended to

promote justice by redressing gross violations of international
humanitarian law. Reparations should be proportional to the
gravity of the violations and the harm suffered. In accordance with
its domestic laws and international legal obligations, a State shall
provide reparation to victims for acts or omissions which can be
attributed to the State and constitute gross violations of
international humanitarian law. In cases where a person, a legal
person, or other entity is found liable for reparation to a victim,
such party should provide reparation to the victim or compensate
the State if the State has already provided reparation to the victim.
....

taking account of individual circumstances, victims of gross
violations of international human rights law and serious violations
of international humanitarian law should, as appropriate and
proportional to the gravity of the violation and the circumstances of
each case, be provided with full and effective reparation, as laid out
in principles 19 to 23, which include the following forms:
restitution, compensation, rehabilitation, satisfaction and

578

Ocampo vs. Enriquez
Full and effective reparation includes Restitution,

Compensation, Rehabilitation, Satisfaction, and
Guarantees of Non-repetition. These are provided for under
Principles 19 to 23:
19. Restitution should, whenever possible, restore the victim to

the original situation before the gross violations of international
humanitarian law occurred. Restitution includes, as appropriate:
restoration of liberty, enjoyment of human rights, identity, family
life and citizenship, and return to oneÊs place of residence,
restoration of employment and return of property.

assessable damage, as appropriate and proportional to the gravity
of the violation and the circumstances of each case, resulting from
gross violations of international human rights law and serious
violations of international humanitarian law such as:

(b) Lost opportunities, including employment, education and
social benefits;
(c) Material damages and loss of earnings, including loss of
earning potential;
(d) Moral damage;
21. Rehabilitation should include medical and psychological care

as well as legal and social services.

following:

violations;
(b) Verification of the facts and full and public disclosure of the

truth to the extent that such disclosure does not cause further
harm or threaten the safety and interests of the victim, the
victimÊs relatives, witnesses, or persons who have intervened
to assist
579
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Ocampo vs. Enriquez
the victim or prevent the occurrence of further violations;

identities of the children abducted, and of the bodies of those
killed, and assistance in the recovery, identification and
reburial of the bodies in accordance with the expressed or
presumed wish of the victims, or the cultural practices of the
families and communities;
(d) 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;
(f) Judicial and administrative sanctions against persons liable
for the violations;
(h) Inclusion of an accurate account of the violations that
occurred in international human rights law and international
humanitarian law training and in educational material at all
levels.

prevention:
(a) Ensuring effective civilian control of military and security

forces;
international standards of due process, fairness and
impartiality;


(d) Protecting persons in the legal, medical and healthcare
professions, the media and other related professions, and
human rights defenders;
(e) Providing, on a priority and continued basis, human rights
and international humanitarian law education to all sectors
of society and training for
581
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Ocampo vs. Enriquez
law enforcement officials as well as military and security forces;

(f) Promoting the observance of codes of conduct and ethical norms,
in particular international standards, by public servants,
including law enforcement, correctional, media, medical,
psychological, social service and military personnel, as well as by
economic enterprises;
(h) Reviewing and reforming laws contributing to or allowing gross
violations of international human rights law and serious
violations of international humanitarian law.
The Basic Principles requires separate obligations that

are complete in themselves, and all these components are
necessary for achieving an „effective remedy‰173 against
human rights violations.
Thus, Compensation for violations committed is not
enough without the victimÊs satisfaction. Satisfying and
compensating the victim is not enough unless there is a
guarantee against non-repetition. This requires a legal
order that can address these violations, as well as a
cultural and educational system that allows remembrance
of its occurrences.174 It also requires a state that does what
it can to guarantee non-repetition of these offenses.
These are essential to „guarantee full respect for human

rights.‰175 Article 2, Section 11 of the Constitution provides

that „[t]he State values the dignity of every human person.
It guarantees full respect of human rights.‰176
This provision is not a mere guide or suggestion. It
requires the positive act of the State to guarantee full
respect of human rights. Moreover,
_______________
173 Rep. Act No. 10368, Sec. 2.

174 See Memoradum (G.R. No. 225973), p. 47; Memorandum
Commission on Human Rights Memorandum, p. 7.
175 CONST., Art. II, Sec. 11.
176 Id.
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the State, with all its branches and instrumentalities

including this Court, must provide this guarantee. When
this state policy is invoked, the State cannot shy away from
recognizing it as a source of right that may be affected by
government actions.
The reparation due to the victims should not be solely
monetary. In addition to the compensation provided under
Republic Act No. 10368, the State must restitute,
rehabilitate, satisfy, and guarantee non-repetition to
victims.
Pertinent to issues raised by the victims of the Marcos
regime is the reparation in the form of Satisfaction and
Guarantee of Non-Repetition. The Basic Principles is clear
that Satisfaction must include a „public apology, including
acknowledgment of the facts and acceptance of
responsibility,‰ „judicial and administrative sanctions
against persons liable for the violations,‰ and an „inclusion
of an accurate account of the violations that occurred . . . in
educational material at all levels.‰

The Guarantee of Non-Repetition requires the State to

„provide, on a priority and continued basis, human rights
and international humanitarian law education to all
sectors of society,‰ and „review and reform laws
contributing to or allowing gross violations of international
human rights law and serious violations of international
humanitarian law.‰
The transfer of the remains of Ferdinand E. Marcos
negates all these aspects of Satisfaction and Guarantee of
Non-Repetition. There has been no sufficient public
apology, full acknowledgment of facts, or any clear
acceptance of responsibility on the part of Ferdinand E.
Marcos or his Heirs. Neither was Ferdinand E. Marcos
sanctioned specifically for human rights violations. Now
that he is dead, the victims can no longer avail themselves
of this recourse. To add insult to this injury, the President
decided to acknowledge the heroic acts and other favorable
aspects of Ferdinand E. Marcos, the person primarily
responsible for these human rights violations. This affects
the accuracy of the accounts of the violations committed on
the victims. It reneges on the StateÊs obligation to provide
human rights education and humanitarian law education
to the Filipino People. It contributes to allowing violations
of international human rights law and encourages
impunity. If the State chooses to revere the person
responsible for human rights violations, the percep-
582

Ocampo vs. Enriquez
tion of its People and the rest of the world on the gravity
and weight of the violations is necessarily compromised.
Allowing Ferdinand E. MarcosÊ burial under the
pretense of the PresidentÊs policy of promotion of national
healing and forgiveness lowers the victimsÊ dignity and
takes away from them their right to heal in their own time.
Allowing the Marcos burial on the premise of national
healing and forgiveness is a compulsion from the State for

the victims and the Filipino People to forgive their

transgressor without requiring anything to be done by the
transgressor or his successors, and without even allowing
the victims to be provided first the reparations granted to
them by law.
Despite the conclusive presumption accorded to some of
these human rights victims, they have still been unable to
claim the reparations explicitly granted to them by
Republic Act No. 10368. Meanwhile, Ferdinand E. Marcos
is awarded forgiveness and accorded state funds and public
property to honor him as a Former President and a
military man. This is not the effective remedy
contemplated by law.
XIII
To allow the Marcos burial is diametrically opposed to

Republic Act No. 10368. The stated policies are clear. These
must be applied, and applied in its entirety · in
accordance with its spirit and intent:
Thus, the literal interpretation of a statute may render it

meaningless; and lead to absurdity, injustice, or contradiction.
When this happens, and following the rule that the intent or the
spirit of the law is the law itself, resort should be had to the
principle that the spirit of the law controls its letter. Not to the
letter that killeth, but to the spirit that vivifieth. Hindi ang letra
na pumapatay, kung hindi ang diwa na nagbibigay buhay.177
(Emphasis supplied)
_______________
177 League of Cities of the Philippines (LCP) v. Commission on

Elections, 592 Phil. 1, 62; 571 SCRA 263, 319-320 (2008) [Per J. Carpio,
En Banc].
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Likewise, a law is always superior to an administrative

regulation, including those issued by the Armed Forces of
the Philippines.178 The latter cannot prevail over the
former. In Conte, et al. v. Commission on Audit:179
It is doctrinal that in case of conflict between a statute and an

administrative order, the former must prevail. A rule or regulation
must conform to and be consistent with the provisions of the
enabling statute in order for such rule or regulation to be valid. The
rule-making power of a public administrative body is a delegated
legislative power, which it may not use either to abridge the
authority given it by the Congress or the Constitution or to enlarge
its power beyond the scope intended. Constitutional and statutory
provisions control with respect to what rules and regulations may
be promulgated by such a body, as well as with respect to what
fields are subject to regulation by it. It may not make rules and
regulations which are inconsistent with the provisions of the
Constitution or a statute, particularly the statute it is administering
or which created it, or which are in derogation of, or defeat, the
purpose of a statute.180 (Emphasis supplied)
This is especially true when the regulation does not

stem from any enabling statute. Administrative regulations
stem from the PresidentÊs administrative power. In Ople v.
Torres:181
Corollary to the power of control, the President also has the duty of
supervising the enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted administrative power
over bureaus and offices under his control to enable him to
discharge his duties effectively.182
_______________
178 China Banking Corporation v. Court of Appeals, 333 Phil. 158,

173; 265 SCRA 327, 343 (1996) [Per J. Francisco, Third Division].
179 332 Phil. 20; 264 SCRA 19 (1996) [Per J. Panganiban, En Banc].
180 Id., at p. 36; pp. 30-31.
181 354 Phil. 948; 293 SCRA 141 (1998) [Per J. Puno, En Banc].
182 Id., at pp. 967-968; pp. 150-151.

584

Ocampo vs. Enriquez
Administrative power is concerned with the work of applying

policies and enforcing orders as determined by proper governmental
organs. It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents.
To this end, he can issue administrative orders, rules and
regulations. (Emphasis supplied, citations omitted)
Because regulations are issued under the administrative

powers of the President, its function is mostly to properly
apply policies and enforce orders. Thus, regulations must
be in harmony with the law. The AFP Regulations cannot
be given priority by the President over Republic Act No.
10368.
Nonetheless, assuming the AFP Regulations are valid,
Republic Act No. 10368 has amended them such that they
disallow any governmental act that conflicts with the
victimsÊ right to recognition and reparation. Section 31 of
Republic Act No. 10368 provides:
Section 31. Repealing Clause.·All laws, decrees, executive

orders, rules and regulations or parts thereof inconsistent with any
of the provisions of this Act, including Section 63(b) of Republic Act
No. 6657, as amended, otherwise known as the Comprehensive
Agrarian Reform Law of 1988 and Section 40(a) of Republic Act No.
7160, otherwise known as the Local Government Code of 1991, are
hereby repealed, amended or modified accordingly.
Since Republic Act No. 10368 should be read into or

deemed to have amended the AFP Regulations, the
transfer of the remains of Ferdinand E. Marcos is illegal.
XIV

Assuming the AFP Regulations remain the governing

regulation over the Libingan ng mga Bayani, Ferdinand E.
Marcos is still disqualified from being interred there. It can
be inferred from the list of disqualifications that those who
have committed serious crimes, something inherently
immoral, despite having served the country in some way,
are not „bayani‰ deserving to be interred at the Libingan
ng mga Bayani.
585
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Ocampo vs. Enriquez
Associate Justice Diosdado M. Peralta contends that

Ferdinand E. Marcos is not disqualified from being interred
at the Libingan ng mga Bayani under the AFP Regulations
as he was neither convicted of an offense involving moral
turpitude nor dishonorably discharged from active military
service. This argument is hinged on the constitutional
provision that a person shall not be held to answer for a
criminal offense without due process of law and the
presumption of innocence in all criminal prosecutions.183
It is true that the presumption of innocence applies in
criminal prosecutions. Nonetheless, relying on the
presumption of innocence to allow Ferdinand E. Marcos to
escape the consequence of his crimes is flimsy.
First, this is not a criminal prosecution, and the rights of
the accused do not apply. Second, Ferdinand E. MarcosÊ
innocence is not in issue here. Even public respondents do
not insult petitioners by arguing that Ferdinand E. Marcos
is not complicit and responsible for the atrocities
committed during his dictatorship. Third, an invocation of
the presumption of Ferdinand E. MarcosÊ innocence is a
rejection of the legislative findings of Republic Act No.
10368 and of this CourtÊs own pronouncements in
numerous cases.
The issue at hand is whether Ferdinand E. Marcos is
someone who should be honored and emulated.

There is no presumption of innocence when it comes to

determining oneÊs fitness to be buried at the Libingan ng
mga Bayani. Moreover, as Ferdinand E. Marcos is a public
officer, the standards are high. Article XI of the
Constitution provides the basic rules that must be followed
by all public officers:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and

employees must, at all times, be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives.
_______________
586

Ocampo vs. Enriquez
Not only is Ferdinand E. Marcos responsible for gross

human rights violations and, thus, crimes of moral
turpitude; he also failed to meet any of the standards
imposed on a public officer under the Constitution. On this
alone, he is not worthy of being emulated and does not
belong at the Libingan ng mga Bayani.
XV
The Solicitor General claims that the provision in the

Administrative Code of 1987 is the governmentÊs legal basis
for the instructions to bury the remains of Ferdinand E.
Marcos at the Libingan ng mga Bayani:
Section 14. Power to Reserve Lands of the Public and Private

Domain of the Government.·(1) The President shall have the

power to reserve for settlement or public use, and for specific public
purposes, any of the lands of the public domain, the use of which is
not otherwise directed by law. The reserved land shall thereafter
remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation. (Emphasis supplied)
This provision requires two (2) substantive

requirements. First, the segregation of land is „for public
use and a specific public purpose.‰ Second, the use of public
land „is not otherwise directed by law.‰
The Solicitor General cites Manosca v. Court of
Appeals184 and City of Manila v. Chinese Community of
Manila.185 These cases provide little assistance to their
case.
The Solicitor General claims that „recognizing a personÊs
contribution to Philippine history and culture is consistent
with the requirement of public use.‰186 Yet, he
acknowledges on behalf of government that Martial Law
was part of the „dark pages‰ of our history. Thus, in his
Consolidated Comment:
_______________
184 G.R. No. 106440, January 29, 1996, 252 SCRA 412 [Per J. Vitug,
First Division].
185 40 Phil. 349 (1919) [Per J. Johnson, En Banc].
186 Solicitor General Consolidated Comment, p. 43.
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Ocampo vs. Enriquez
No amount of heartfelt eulogy, gun salutes, holy anointment, and

elaborate procession and rituals can transmogrify the dark pages of
history during Martial Law. As it is written now, Philippine history
is on the side of Petitioners and everybody who fought and died for

democracy.187
Ferdinand E. Marcos was ousted from the highest office

by the direct sovereign act of the People. His regime was
marked by brutality and by the „organized pillaging‰ that
came to pass.
In Marcos v. Manglapus,188 which was decided in 1989,
this Court acknowledged that Ferdinand E. Marcos was „a
dictator‰189 who was „forced out of office and into exile after
causing twenty years of political, economic and social havoc
in the country.‰190 This Court recognized the immediate
effects of the Marcos regime:
We cannot also lose sight of the fact that the country is only now
beginning to recover from the hardships brought about by the
plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the
Marcoses in foreign jurisdictions. Then, we cannot ignore the
continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which stifles
and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is
easily within the ambit of judicial notice.191
In 2006, in Yuchengco v. Sandiganbayan:192
In PCGG v. Peña, this Court, describing the rule of Marcos as a

„well-entrenched plundering regime of twenty years‰ noted the
_______________
187 Id., at pp. 60-61.

189 Id., at p. 492; pp. 682-683.
190 Id.
191 Id., at p. 509; p. 698.
192 515 Phil. 1; 479 SCRA 1 (2006) [Per J. Carpio-Morales, En Banc].

588

Ocampo vs. Enriquez
„magnitude of the past regimeÊs Âorganized pillageÊ 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.193 (Citations omitted)
In the 2001 case of Estrada v. Desierto,194 this Court

characterized once again the 1986 EDSA Revolution and, in
so doing, described the rejection of the Marcos regime:
[T]he government of former President Aquino was the result of a

successful revolution by the sovereign people, albeit a peaceful one.
No less than the Freedom Constitution declared that the Aquino
government was installed through a direct exercise of the power of
the Filipino People in defiance of the provisions of the 1973
Constitution, as amended.195
The other possible purpose stated by the Solicitor

General is to achieve the ambiguous goal of „national
healing.‰196 During the Oral Arguments, the Solicitor
General argues that the aim of the burial is to achieve
„changing the national psyche and beginning the painful
healing of this country.‰ In doing so, however, respondents
rewrite our history to erase the remembrance of Ferdinand
E. Marcos as a symbol of the atrocities committed to many
of our People. It is an attempt to forget that he was a
human rights violator, a dictator, and a plunderer, in the
name of „national healing‰ and at the cost of repetition of
the same acts in this or future generations.

_______________
193 Id., at pp. 48-49; pp. 56-57.

194 406 Phil. 1; 353 SCRA 452 (2001) [Per J. Puno, En Banc].
195 Id., at pp. 43-44; p. 492. See also LawyersÊ League for a Better
Philippines v. Aquino, supra note 126, as cited in In Re: Saturnino V.
Bermudez, supra note 126.
196 Solicitor General, Consolidated Comment, p. 5.
589
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Ocampo vs. Enriquez
Considering Ferdinand E. MarcosÊ disreputable role in

Philippine history, there can be no recognition that serves
the public interest for him. There is no legitimate public
purpose for setting aside public land at the Libingan ng
mga Bayani · definitely a national shrine · for him.
Manosca states the standard that governmental action
to favor an individual or his or her memory will only be
allowed if it is to recognize the personÊs laudable and
distinctive contribution to Philippine history or culture.
Ferdinand E. MarcosÊ leadership has been discredited both
by statutory provisions and jurisprudence. He has
contribution that stands out and that should be validly
recognized.
It is disturbing that what appears to be the underlying
cause for the interment of the remains of Ferdinand E.
Marcos at the Libingan ng mga Bayani is the fulfillment of
a campaign promise by President Duterte to the Heirs of
Marcos. This dovetails with petitionersÊ manifestation that
campaign contributions were made by the Heirs of Marcos.
Promised acts of a political candidate to a family to further
personal political ambition at the cost of the publicÊs
welfare cannot be considered as the public purpose
required by the Administrative Code of 1987.
XVI

The exercise of the PresidentÊs powers may not be

justified by invoking the executiveÊs residual powers.
An exercise of the PresidentÊs residual powers is
appropriate only if there is no law delegating the power to
another body, and if there is an exigency that should be
addressed immediately or that threatens the existence of
government. These involve contingencies that cannot await
consideration by the appropriate branches of government.
In Gonzales v. Marcos,197 this Court recognized the
residual power of the President to administer donations
specifically in the absence of legislative guidelines. This
Court stressed that it was necessary that the executive act
promptly, as time was of the essence:
_______________
197 160 Phil. 637; 65 SCRA 624 (1975) [Per J. Fernando, En Banc].
590

Ocampo vs. Enriquez
There is impressive juridical support for the stand taken by the

lower court. Justice Malcolm in Government of the Philippine
Islands v. Springer took pains to emphasize: „Just as surely as the
duty of caring for governmental property is neither judicial nor
legislative in character is it as surely executive.‰ It would be an
unduly narrow or restrictive view of such a principle if the public
funds that accrued by way of donation from the United States and
financial contributions for the Cultural Center project could not be
legally considered as „governmental property.‰ They may be
acquired under the concept of dominium, the state as a persona in
law not being deprived of such an attribute, thereafter to be
administered by virtue of its prerogative of imperium. What is a
more appropriate agency for assuring that they be not wasted or
frittered away than the Executive, the department precisely
entrusted with management functions? It would thus appear that

for the President to refrain from taking positive steps and await the
action of the then Congress could be tantamount to dereliction of
duty. He had to act; time was of the essence. Delay was far from
conducive to public interest. It was as simple as that. Certainly
then, it could be only under the most strained construction of
executive power to conclude that in taking the step he took, he
transgressed on terrain constitutionally reserved for Congress.198
(Emphasis supplied, citations omitted)
In Marcos v. Manglapus,199 the government was

unstable and was threatened by various forces, such as
elements within the military, who were among the rabid
followers of Ferdinand E. Marcos. Thus, the residual power
of the President to bar the return of Ferdinand E. MarcosÊ
body was recognized by this Court as borne by the duty to
preserve and defend the Constitution and ensure the
faithful execution of laws:
The power involved is the PresidentÊs 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. It is a power borne by the
may be viewed as a
_______________
198 Id., at p. 644; p. 631.

591
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Ocampo vs. Enriquez
power implicit in the PresidentÊs duty to take care that the laws are
faithfully executed.200

Further, this Court recognized the PresidentÊs residual

powers for the purpose of, and necessary for, maintaining
peace:
More particularly, this case calls for the exercise of the

PresidentÊs powers as protector of the peace. The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the
State against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic
tranquillity in times when no foreign foe appears on the horizon.
Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative
want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the
PresidentÊs exercising as Commander-in-Chief powers short of the
calling of the armed forces, or suspending the privilege of the writ of
habeas corpus or declaring martial law, in order to keep the peace,
and maintain public order and security.201
In Sanlakas v. Reyes202 where several hundred members

of the Armed Forces of the Philippines stormed the
Oakwood Premiere apartments in Makati City and
demanded Former President Gloria Macapagal-ArroyoÊs
resignation, the use of the PresidentÊs residual power to
declare a state of rebellion was allowed. This Court held
that although the declaration is a superfluity, her power to
declare a state of rebellion arises from her pow-
_______________
200 Id., at p. 504; p. 694, citing 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.
201 Id., at pp. 504-505; p. 694, citing Rossiter, The American
Presidency.
202 Sanlakas v. Reyes, supra note 78.

592

Ocampo vs. Enriquez
ers as Chief Executive and Commander-in-Chief.203 This

Court examined the history of such powers:
The lesson to be learned from the U.S. constitutional history is

that the Commander-in-Chief powers are broad enough as it is and
become more so when taken together with the provision on
executive power and the presidential oath of office. Thus, the
plenitude of the powers of the presidency equips the occupant with
the means to address exigencies or threats which undermine the
very existence of government or the integrity of the State.204
In these cases, the residual powers recognized by this

Court were directly related to the PresidentÊs duty to
attend to a present contingency or an urgent need to act in
order to preserve domestic tranquility. In all cases of the
exercise of residual power, there must be a clear lack of
legislative policy to guide executive power.
This is not the situation in these consolidated cases. As
discussed, there are laws violated. At the very least, there
was no urgency. There was no disturbance to the public
peace.
XVII
I disagree with Associate Justice Jose P. PerezÊs view

that the issue relating to the transfer of the remains of
Ferdinand E. Marcos was already resolved through the
political process of the election of the President of the
Philippines.205 In his view, the issue had already been
presented to the public during the campaign season, and
President Duterte was elected despite petitionersÊ
opposition. Thus, he concludes that the sovereign has
subscribed to the policy promised by President Duterte.206

In other words, he is of the opinion that the People decided

that Ferdinand E. Marcos should be buried at the Libingan
ng mga Bayani because President Duterte did not lose.207
_______________
203 Id., at p. 522; p. 677.

204 Id., at p. 518; pp. 675-699.
205 J. Perez, Concurring Opinion, p. 472.
206 Id., at p. 473.
207 Id., at pp. 474-475.
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Associate Justice Perez suggests that the President-

electÊs acts to effectuate his campaign promises may no
longer be questioned by any party, regardless of whether it
is contrary to the Constitution, laws, and public policy,
regardless of whether he obtained the votes of the majority,
and regardless of whether he acted with grave abuse of
discretion amounting to lack or excess of jurisdiction.208 He
takes the position that any act of the President to fulfill his
electoral promise will be deemed legitimate because the
People have supposedly chosen him as their President.209
I cannot agree to this dangerous proposition. We are a
constitutional democracy: a State under the rule of law.
The number of votes obtained by the President does not
determine whether the Constitution or the laws will or will
not apply. The Constitution is not suspended on account of
the election of a President who promised a particular
policy. We elect a President whom we expect to implement
political platforms given the existing state of the law. The
process of election is not a means to create new law. The
process of creating law is provided in Article VIII of the
Constitution. Neither should the elections for President be
the process for amending the Constitution. The process for

amending the Constitution is provided in Article XVII of

the same Constitution.
Furthermore, the President is tasked to execute the law
· not create it. It is the legislative branch that determines
state policies through its power to enact, amend, and repeal
laws. Thus, it is dangerous to assume that the sovereign
voted for the President to „ratify‰ policies he promised
during his campaign.
In other words, under our constitutional order, we elect
a President subject to the Constitution and the current
state of the law. We do not, through the process of elections,
anoint a king.
Moreover, the theory that a campaign promise becomes
policy is an abdication of the judiciaryÊs duty to uphold the
Constitution and its laws.
_______________
208 Id.
209 Id.
594

Ocampo vs. Enriquez
Article VIII, Section 1 of the Constitution provides:
ARTICLE VIII
Judicial Department
SECTION 1. The judicial power shall be vested in one Supreme


grave abuse of discretion amounting to lack or excess jurisdiction on

the part of any branch or instrumentality of the Government.
This provision defines this CourtÊs duty to ensure that

all branches or instrumentalities of Government act only
within the scope of their powers as defined by the
Constitution and by law. Nothing in the provision allows
campaign promises to trump the rule of law.
Associate Justice PerezÊs Concurring Opinion is founded
upon the premise that the transfer of the remains of
Ferdinand E. Marcos is a question of policy to be
determined by the People, outside the scope of this CourtÊs
power of judicial review. He claims that the matter is a
political question. Unfortunately, the allegations of an
infringement upon a fundamental individual or collective
right and grave abuse of discretion on the part of another
branch of government, which were properly pleaded by
petitioners, were not addressed.
Recently, in Diocese of Bacolod v. Commission on
Elections:210
The political question doctrine is used as a defense when the

petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by
the Constitution or the law. In such situation, presumptively, this
court should act with deference. It will decline to void an act unless
the exercise of that power was so capricious and arbitrary so as to
amount to grave abuse of discretion.
_______________
210 G.R. No. 205728, January 21, 2015, 747 SCRA 1 [Per J. Leonen,
En Banc].
595
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Ocampo vs. Enriquez
The concept of a political question, however, never precludes

judicial review when the act of a constitutional organ infringes upon

a fundamental individual or collective right. . . .
Marcos v. Manglapus limited the use of the political question
doctrine:
When political questions are involved, the Constitution

limits the determination to whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will
not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the
latter alone to decide.
How this court has chosen to address the political question

doctrine has undergone an evolution since the time that it had been
first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance
of pronouncements of carefully and narrowly tailored constitutional
doctrines. . . .
Many constitutional cases arise from political crises. The actors
in such crises may use the resolution of constitutional issues as
leverage. But the expanded jurisdiction of this court now mandates
a duty for it to exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social conflict.
This courtÊs understanding of the political question has not been
static or unbending. In Llamas v. Executive Secretary Oscar Orbos,
this court held:
While it is true that courts cannot inquire into the manner

in which the PresidentÊs discretionary powers are exercised or
into the wisdom for its exercise, it is also a settled rule
that when the issue involved concerns the validity of
such discretionary powers or whether said powers are
within the limits prescribed by the Constitution, We will
not decline to exercise our power of judicial review. And
such review does not constitute a modification or correction of
the act of the President, nor does it constitute interference
with the functions of the President.
596


Ocampo vs. Enriquez
The concept of judicial power in relation to the concept of the

political question was discussed most extensively in Francisco v.
HRET. In this case, the House of Representatives argued that the
question of the validity of the second impeachment complaint that
was filed against former Chief Justice Hilario Davide was a political
question beyond the ambit of this court. . . .
As stated in Francisco, a political question will not be considered
justiciable if there are no constitutionally imposed limits on powers
or functions conferred upon political bodies. Hence, the existence
of constitutionally imposed limits justifies subjecting the
official actions of the body to the scrutiny and review of this
court.211 (Emphasis supplied, citations omitted)
XVIII
Similarly, I cannot agree with the conclusions of

Associate Justice Arturo D. Brion with respect to the
interpretation of Article VIII, Section 1 of the Constitution.
Associate Justice Brion opines that this CourtÊs
expanded jurisdiction under the Constitution does not
empower this Court to review allegations involving
violations and misapplication of statutes.212 He claims that
the remedies available to petitioners are those found in the
Rules of Court, which address errors of law.213 He claims
that this Court can only check whether there is grave
abuse of discretion on the part of another branch or
instrumentality of government when there is a violation of
the Constitution.214 Necessarily, petitioners must have
shown that there is prima facie evidence that the President
violated the Constitution in allowing the Marcos burial.215
He insists that the CourtÊs authority, under its expanded
jurisdiction, is limited to determining the constitutionality
of a governmental act. Grave abuse of discretion from
violations of statutes cannot be made a matter of judicial
review under this CourtÊs expanded jurisdiction.
_______________

211 Id., at pp. 20-23.

212 J. Brion, Concurring Opinion, p. 437.
213 Id.
214 Id., at p. 438.
215 Id.
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Ocampo vs. Enriquez
Associate Justice BrionÊs interpretation proceeds from

the theory that there is a hierarchy of breach of the
normative legal order and that only a breach of the
Constitution will be considered grave abuse of discretion.
In my view, this reading is not supported by the text of
the provision or by its history.
Article VIII, Section 1 of the Constitution is clear. This
Court is possessed of the duty to exercise its judicial power
to determine whether there is grave abuse of discretion
amounting to lack or expess of jurisdiction by any branch
or instrumentality of government. This provision does not
state that this Court may exercise its power of judicial
review exclusively in cases of violations of the Constitution.
An illegal act is an illegal act, no matter whether it is
illegal as a result of the violation of a constitutional
provision or a violation of valid and existing law. It is the
exercise of discretion that must be subjected to review, and
it is the discretion of any branch or instrumentality of
government. Nothing in the Constitution can lead to the
conclusion that a violation of a statute by the President is
not a grave abuse of discretion.
This jurisdiction to determine whether there is grave
abuse of discretion amounting to lack or excess jurisdiction
of any branch of government is a new provision under the
1987 Constitution. It was added as a safeguard from
abuses of other branches of government, which were
justified under the doctrine of political question. In
Francisco, Jr. v. House of Representatives:216

In our own jurisdiction, as early as 1902, decades before its

express grant in the 1935 Constitution, the power of judicial review
was exercised by our courts to invalidate constitutionally infirm
acts. And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza, the executive and
legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:
_______________
216 460 Phil. 830; 415 SCRA 44 (2003) [Per J. Carpio-Morales, En

Banc].
598

Ocampo vs. Enriquez
Article 7. Laws are repealed only by subsequent ones, and

their violation or nonobservance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the

Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations shall

be valid only when they are not contrary to the laws or the
Constitution.
....
In the scholarly estimation of former Supreme Court Justice

Florentino Feliciano, „. . . judicial review is essential for the
maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them.‰ To him,

„[j]udicial review is the chief, indeed the only, medium of

participation · or instrument of intervention · of the judiciary in
that balancing operation.‰
To ensure the potency of the power of judicial review to curb
grave abuse of discretion by „any branch or instrumentalities of
government,‰ the aforequoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into
block letter law the so-called „expanded certiorari
jurisdiction‰ of this Court, the nature of and rationale for which
are mirrored in the following excerpt from the sponsorship speech of
its proponent, former Chief Justice Constitutional Commissioner
Roberto Concepcion:
....
The first section starts with a sentence copied from former

Constitution. It says:
The judicial power shall be vested in one Supreme Court and

in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it

first and explain.
599
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Ocampo vs. Enriquez
Judicial power includes the duty of 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 or instrumentality of the
government.
Fellow Members of this Commission, this is actually a
product of our experience during martial law. As a

matter of fact, it has some antecedents in the past, but the

role of the judiciary during the deposed regime was marred
considerably by the circumstance that in a number of cases
against the government, which then had no legal defense at
all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain
principles concerning particularly the writ of habeas corpus,
that is, the authority of courts to order the release of political
detainees, and other matters related to the operation and
effect of martial law failed because the government set up the
defense of political question. And the Supreme Court said:
„Well, since it is political, we have no authority to pass upon
it.‰ The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It 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. . . .
....
Briefly stated, courts of justice determine the limits of

power of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of government
or any of its officials has acted without jurisdiction or in
excess of jurisdiction, or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction or lack
of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the
600

Ocampo vs. Enriquez
duty to settle matters of this nature, by claiming that such

matters constitute a political question.217 (Emphasis supplied)

It is not about violations that may or may not be

constitutional or statutory in character. It is about
discretion gravely abused.
Regretfully, Associate Justice BrionÊs position ignores
the legal issues presented by petitioners, which involve a
question of the proper exercise of constitutional powers:
whether the President may use his executive power to
order the transfer of the remains of Ferdinand E. MarcosÊ
to the Libingan ng mga Bayani burial despite the rights
invoked by petitioners and other particular provisions in
the Constitution, statutes, and public policy.
Definitely, there is an actual case or controversy ripe for
judicial review. Recalling a position in Spouses Imbong v.
Ochoa, Jr.:218
The requirement for a „case‰ or „controversy‰ locates the

judiciary in the scheme of our constitutional order. It defines our
role and distinguishes this institution from the other constitutional
organs.
....
An actual case or controversy is „one which involves a conflict of

legal rights, an assertion of opposite legal claims susceptible of
judicial resolution; the case must not be moot or academic or based
on extralegal or other similar considerations not cognizable by a
court of justice.‰ To be justiciable, the issues presented must be
„Âdefinite and concrete, touching the legal relations of parties having
adverse legal interestÊ; a real and substantial controversy admitting
of specific relief.‰ The term justiciability refers to the dual
limitation of only considering in an adversarial context the
questions presented before courts, and in the process, the courtsÊ
duty to respect its coequal branches of governmentÊs powers and
prerogatives under the doctrine of separation of powers.
_______________
217 Id., at pp. 881-884; pp. 123-126.

218 J. Leonen, Dissenting Opinion in Imbong v. Ochoa, Jr., G.R. No.
204819, April 8, 2014, 721 SCRA 146, 731-847 [Per J. Mendoza, En
Banc].

601
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Ocampo vs. Enriquez
There is a case or controversy when there is a real conflict of

rights or duties arising from actual facts. These facts, properly
established in court through evidence or judicial notice, provide the
natural limitations upon judicial interpretation of the statute.
When it is claimed that a statute is inconsistent with a provision of
the Constitution, the meaning of a constitutional provision will be
narrowly drawn.
Without the necessary findings of facts, this court is left to
speculate leaving justices to grapple within the limitations of their
own life experiences. This provides too much leeway for the
imposition of political standpoints or personal predilections of the
majority of this court. This is not what the Constitution
contemplates. Rigor in determining whether controversies brought
before us are justiciable avoids the counter majoritarian difficulties
attributed to the judiciary.
Without the existence and proper proof of actual facts, any
review of the statute or its implementing rules will be theoretical
and abstract. Courts are not structured to predict facts, acts or
events that will still happen. Unlike the legislature, we do not
determine policy. We read law only when we are convinced that
there is enough proof of the real acts or events that raise conflicts of
legal rights or duties. Unlike the executive, our participation comes
in after the law has been implemented. Verily, we also do not
determine how laws are to be implemented.219
There is an actual case or controversy in this case as it

involves a conflict of legal rights arising from actual facts,
which have been properly established through evidence or
judicial notice, and which provide the natural limitations
upon judicial interpretation of the statute.
Petitioners invoke a violation of their existing legal
rights, among which is their right as victims of human
rights violations committed during the Marcos regime.

They invoke an act from the executive branch, which

allegedly violates their rights and was allegedly committed
of jurisdiction. On the other hand, respondents insist on
the PresidentÊs right to exercise his executive discretion on
who may or may not be buried at the
_______________
219 Id., at pp. 738-739.
602

Ocampo vs. Enriquez
Libingan ng mga Bayani. Thus, a conflict of rights must be

determined by this Court in accordance with the
Constitution and statutes. This CourtÊs ruling on the
matter will not be merely advisory; on the contrary, it shall
be binding among the parties and shall be implemented
with force and effect. Thus, there is an actual case or
controversy.
XIX
Associate Justice Peralta contends that petitioners have

no locus standi because they failed to show any direct
suffering or personal injury that they have incurred or will
incur as a result of Ferdinand E. MarcosÊ burial.220
I cannot agree.
The requirement of locus standi requires that the party
raising the issue must have „a personal and substantial
interest in the case such that he has sustained, or will
sustain direct injury as a result.‰221
In Public Interest Center, Inc. v. Roxas:222
In Integrated Bar of the Philippines v. Zamora, this Court

defined legal standing as follows:

Legal standing or locus standi has been defined as a personal

and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The term „interest‰
means a material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. The gist of the question of
standing is whether a party alleges „such personal stake in the
outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.‰
_______________
220 Ponencia, pp. 260-261.

221 People v. Vera, 65 Phil. 56, 87 (1937) [Per J. Laurel, First
Division].
222 542 Phil. 443; 513 SCRA 457 (2007) [Per J. Carpio-Morales,
Second Division].
603
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Ocampo vs. Enriquez
In public suits, the plaintiff, representing the general public,

asserts a „public right‰ in assailing an allegedly illegal official
action. The plaintiff may be a person who is affected no differently
from any other person, and could be suing as a „stranger,‰ or as a
„citizen‰ or „taxpayer.‰ To invest him with locus standi, the plaintiff
has to adequately show that he is entitled to judicial protection and
has a sufficient interest in the vindication of the asserted public
right.223 (Citations omitted)
Several petitioners allege that they are human rights

victims during the Marcos regime who had filed claims
under Republic Act No. 10368. In their Petitions, they
claim that respondentsÊ questioned acts affect their right to

reparation and recognition under Republic Act No. 10368

and international laws. As petitioners have an interest
against Ferdinand E. Marcos and have claims against the
State in connection with the violation of their human
rights, petitioners are vested with material interest in the
PresidentÊs act in allowing the Marcos burial at the
In any case, the rule on standing has been relaxed
„when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public
interest.‰224 In In Re Supreme Court Judicial Independence
v. Judiciary Development Fund:225
Transcendental importance is not defined in our jurisprudence,

thus, in Francisco v. House of Representatives:
_______________
223 Id., at pp. 455-456; pp. 469-470.

224 In the Matter of: Save the Supreme Court Judicial Independence
and Fiscal Autonomy Movement v. Abolition of Judiciary Development
Fund (JDF) and Reduction of Fiscal Autonomy, UDK-15143, January 21,
2015, 746 SCRA 352 [Per J. Leonen, En Banc], citing Biraogo v.
Philippine Truth Commission of 2010, supra note 76 at p. 441; p. 151, in
turn citing Social Justice Society (SJS) v. Dangerous Drugs Board, 591
Phil. 393, 404; 570 SCRA 410, 421 (2008) [Per J. Velasco, Jr., En Banc],
Tatad v. Secretary of the Department of Energy, 346 Phil. 321, 359; 281
SCRA 330, 348 (1997) [Per J. Puno, En Banc], and De Guia v.
Commission on Elections, G.R. No. 104712, May 6, 1992, 208 SCRA 420,
422 [Per J. Bellosillo, En Banc].
225 Id.
604

Ocampo vs. Enriquez
There being no doctrinal definition of transcendental

importance, the following instructive determinants

formulated by former Supreme Court Justice Florentino P.

Feliciano are instructive: (1) the character of the funds or
other assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition
by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being
raised.226 (Citations omitted)
Given that public property and funds are involved and

there are allegations of disregard of constitutional and
statutory limitations by the executive department, this
Court may properly act on the Petitions.
The ponencia states that petitioners violated the
doctrines of exhaustion of administrative remedies and
hierarchy of courts,227 which essentially espouse the
principle that no direct resort to this Court is allowed when
there are other plain, speedy, and adequate remedies.
However, there are exceptions to this rule, as restated in

Diocese of Bacolod:
(a) When there are genuine issues of constitutionality
that must be addressed at the most immediate time;
(b) When the issues involved are of transcendental
importance. In these cases, the imminence and clarity
of the threat to fundamental constitutional rights
outweigh the necessity for prudence. The doctrine
relating to constitutional issues of transcendental
importance prevents courts from the paralysis of
procedural niceties when clearly faced with the need
for substantial protection;
(c) In cases of first impression, and no jurisprudence yet
exists that will guide the lower courts on this matter;
(d) When the constitutional issues raised are better
decided by this court;
_______________
226 Id., at pp. 367-368.


605
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Ocampo vs. Enriquez
(e) When the filed petition reviews the act of a

constitutional organ;
(f) When there is a time element presented in this case
cannot be ignored;
(g) When there is no other plain, speedy, and adequate
remedy in the ordinary course of law that could free
them from the injurious effects of respondentsÊ acts in
violation of their rights; and
(h) When the petition includes questions that are
„dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be
patent nullities, or the appeal was considered as
clearly an inappropriate remedy.‰228
These exceptions are present in these consolidated

cases. First, these cases involve reviewing the act of
another constitutional organ, that is, the PresidentÊs
exercise of discretion in allowing Ferdinand E. MarcosÊ
burial at the Libingan ng mga Bayani. Second, these
Petitions raise constitutional questions that would be
better decided by this Court, as well as issues relating to
public policy that may be beyond the competence of the
lower courts. These cases are likewise of first impression,
and no jurisprudence yet exists on this matter. Thus, the
Petitions cannot be dismissed by invoking the doctrine of
hierarchy of courts and exhaustion of administrative
remedies.
XX
Grave abuse of discretion is committed when the

President violates his or her own oath of office. Thus, in
Article VII, Section 5 of the 1987 Constitution:

ARTICLE VII
Executive Department
....
_______________
228 Diocese of Bacolod v. Commission on Elections, supra note 210 at

pp. 15-18.
606

Ocampo vs. Enriquez
SECTION 5. . . .
„I, do solemnly swear (or affirm) that I will faithfully and

conscientiously fulfill my duties as President . . . of the Philippines,
preserve and defend its Constitution, execute its laws, do justice to
every man, and consecrate myself to the service of the nation. So
help me God.‰
The PresidentÊs duty to faithfully execute the laws of the

land is enshrined in the Constitution. Thus, in Article VII,
Section 17:
SECTION 17. The President shall have control of all executive

departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.
In Almario v. Executive Secretary,229 we have clarified

that the faithful execution clause is not a separate grant of
power but an obligation imposed on the President. The
President is, therefore, not above the law or above judicial
interpretation. He is duty-bound to obey and execute them.
Thus, administrative or executive acts, orders and

regulations shall be valid only when they are not contrary

to the laws or the Constitution.230
In Almario, the PresidentÊs proclamation of several
national artists was nullified because several rules,
guidelines, and processes of the National Commission on
Culture and the Arts and the Cultural Center of the
Philippines were disregarded. This Court declared that the
actions of the President, contrary to the spirit of these
rules, constituted grave abuse of discretion:
Thus, in the matter of the conferment of the Order of National

Artists, the President may or may not adopt the recommendation or
advice of the NCCA and the CCP Boards. In other words, the advice
of the NCCA and the CCP is subject to the PresidentÊs discretion.
Nevertheless, the PresidentÊs discretion on the matter is not
totally unfettered, nor the role of the NCCA and the CCP Boards
meaningless.
_______________

230 CIVIL CODE, Art. 7.
607
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Ocampo vs. Enriquez
Discretion is not a free-spirited stallion that runs and roams

wherever it pleases but is reigned in to keep it from straying. In its
classic formulation, Âdiscretion is not unconfined and vagrantÊ but
Âcanalized within banks that keep it from overflowing.Ê
The PresidentÊs power must be exercised in accordance with
existing laws. Section 17, Article VII of the Constitution prescribes
faithful execution of the laws by the President:
Sec. 17. The President shall have control of all the

executive departments, bureaus and offices. He shall ensure
that the laws be faithfully executed.

The PresidentÊs discretion in the conferment of the Order of

National Artists should be exercised in accordance with the duty to
faithfully execute the relevant laws. The faithful execution clause is
best construed as an obligation imposed on the President, not a
separate grant of power. It simply underscores the rule of law and,
corollarily, the cardinal principle that the President is not above the
laws but is obliged to obey and execute them. This is precisely why
the law provides that „[a]dministrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the
laws of the Constitution.‰231
XXI
The ponenciaÊs characterization of Ferdinand E. Marcos

as „just a human who erred like us‰232 trivializes the
magnitude of the suffering that he inflicted on scores of
Filipinos.
Ferdinand E. MarcosÊ „errors‰ were not errors that a
President is entitled to commit. They were exceptional in
both severity and scale. They were inhuman acts.
Ferdinand E. Marcos provided the atmosphere of
impunity that allowed the molestations, rape, torture,
death, and disappearance of thousands of Filipinos.
Ferdinand E. Marcos was the President who, rather than
preserve and protect the public trust, caused untold
anguish upon
_______________

Executive Secretary, supra note 1 at pp. 163-164; pp. 308-310.
608

Ocampo vs. Enriquez

thousands of Filipino families. Their trauma, after all these

years, still exists.
Ferdinand E. Marcos plundered the nationÊs coffers. The
systematic plunder was so exceptional and outrageous that
even after being ousted, he and his family brought more
than P27,000,000.00 in freshly printed notes, 23 wooden
crates, 12 suitcases and bags, and various boxes of jewelry,
gold bricks, and enough clothes to fill 57 racks233 with them
to their exile in Hawaii.
These were not accidents that humans, like us, commit.
These were deliberate and conscious acts by one who
abused his power. To suggest that Ferdinand E. Marcos
was „just a human who erred like us‰ is an affront to those
who suffered under the Marcos regime.
To suggest that these were mere errors is an attempt to
erase Ferdinand E. MarcosÊ accountability for the atrocities
during Martial Law. It is an attempt to usher in and
guarantee impunity for them as well as for those who will
commit the same in the future.
It is within the power of this Court to prevent impunity
for gross violations of human rights, systematic plunder by
those whom we elect to public office, and abuse of power at
the expense of our toiling masses. We should do justice
rather than characterize these acts as the „mere human
error‰ of one whom We have characterized as a dictator and
an authoritarian.
XXII
Interpreting the law is not mere power. It is not simply

our personal privilege.
Judicial review is an awesome social responsibility that
should always be discharged with the desire to learn from
history and to do justice. Social justice will not come as a
gift. It is a product of the constant,
_______________
233 Ocampo Memorandum (G.R. No. 225973), p. 5, citing Davies,

Nick, The $10bn question: what happened to the Marcos millions?, The
Guardian, May 7, 2016
<https://www.theguardian.com/world/2016/may/07/10bn-dollar-question-

marcos-millions-nick-davies> (visited November 7, 2016).
609
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Ocampo vs. Enriquez
conscious, and determined effort to understand our society

and do what is right. Justice will not come when we insist
that we should decide behind a veil of ignorance. Precisely,
our expanded jurisdiction in the present Constitution
contains our PeopleÊs command for this Court not to forget
that never again should this Court be blind to reality.
The reality is that the retelling of the story of Martial
Law is agonizing to many who went through the ordeal.
Reliving it for eternity, with the transfer of the remains of
he who is responsible for the ordeal to the sacred grounds
of the Libingan ng mga Bayani, will permanently cause
untold anguish to the victims.
The mother who stood by her principles but was
tortured, molested, or raped during Martial Law will now
have to explain to her daughter why he who allowed that
indignity to happen is now at the Libingan ng mga Bayani.
The family of the father or the mother or the son or the
daughter or the nephew or niece or cousin who disappeared
will have extreme difficulty accepting that the remains of
Ferdinand E. Marcos · the President who was
Commander-in-Chief and who had control over all those
who wielded state coercion during Martial Law · is buried
in a place that implies that he is a hero. They will have to
explain to themselves, with the pain and anguish that they
still suffer, why the most powerful man who was unable to
help them find their kin is granted honors by this State.
Those who will celebrate this countryÊs pride every year
with the commemoration of People Power or the EDSA
Revolution will also live with the contradiction that the
remains of the President they ousted for his abuses is now
interred at the Libingan ng mga Bayani.
National healing cannot happen without the victimsÊ

participation and consent.

The decision of the majority to deny the Petitions robs
this generation and future generations of the ability to
learn from our past mistakes. It will tell them that there
are rewards for the abuse of power and that there is
impunity for human rights violations. The decision of the
majority implies that, learning from the past, our People
should be silent and
610

Ocampo vs. Enriquez
cower in fear of an oppressor. After all, as time passes, the

authoritarian and the dictator will be rewarded.
Sooner rather than later, we will experience the same
fear of a strongman who will dictate his view on the
solutions of his favored social ills. Women will again be
disrespected, molested, and then raped. People will die
needlessly · perhaps summarily killed by the same law
enforcers who are supposed to protect them and guarantee
the rule of law. Perhaps, there will be people who will be
tortured after they are shamed and stereotyped.
We forget the lessons of the past when we allow abuse to
hold sway over the lives of those who seem to be unrelated
to us. Silence, in the face of abuse, is complicity.
The burial of Ferdinand E. Marcos at the Libingan ng
mga Bayani is not an act of national healing. It cannot be
an act of healing when petitioners, and all others who
suffered, are not consulted and do not participate. Rather,
it is an effort to forget our collective shame of having failed
to act as a People as many suffered. It is to contribute to
the impunity for human rights abuses and the plunder of
our public trust.
The full guarantee of human rights is a fundamental
primordial principle enshrined in the Constitution. It is not
the antithesis of government.
To deny these Petitions is to participate in the effort to
create myth at the expense of history.

Ferdinand E. MarcosÊ remains, by law, cannot be

transferred to the Libingan ng mga Bayani. Ferdinand E.
Marcos is not a „bayani.‰
Ferdinand E. Marcos is not a hero.
ACCORDINGLY, I vote to GRANT the consolidated
Petitions.
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DISSENTING OPINION
CAGUIOA, J.:
I vehemently dissent.
Ultimately, the ponenciaÊs reason to dismiss the
petitions is that there is „no clear constitutional or legal
basis‰ to hold that there was a grave abuse of discretion
attending President Rodrigo R. DuterteÊs order to inter
former President MarcosÊs remains in the Libingan ng mga
Bayani („LNMB‰). And the premise of the statement is that
the sole authority in determining who are entitled and
disqualified to be interred at the LNMB is the AFP
Regulations.
I cannot, as a magistrate and a citizen, in good
conscience, agree. My reasons are set forth below.
The burial of former President Mar-

cos does not raise a political question
beyond the ambit of judicial review.
The ponencia holds that President DuterteÊs decision to

have the remains interred at the LNMB involves a political
question that is not a justiciable controversy.
I disagree.
The issues of justiciability and political question are
inextricably intertwined. They are in reality two sides of
the same coin. Their resolution usually involves mutually

exclusive choices. A determination favoring one necessarily

negates the other. It is an „either/or‰ scenario.
Invariably, any discussion of the political question
doctrine will draw in the concept of judicial power and
review. In turn, the presence of grave abuse of discretion
amounting to lack or excess of jurisdiction is the stimulus
for the exercise of judicial review.
As the doctrine of political question evolved in this
jurisdiction, so did the concept of judicial power. At present,
judicial power, as defined in
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Ocampo vs. Enriquez
paragraph 2, Section 1, Article VIII of the 1987

Constitution,1 includes the duty of the courts to settle
actual controversies involving rights which are legally
instrumentality of the Government. This expanded concept
of judicial power has consequently bounded, if not
marginalized, the political question doctrine.
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
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
The petitioners argue that their petitions raise
justiciable issues over which the Court has the power of
judicial review under its expanded jurisdiction under the
1987 Constitution.2 They cite, among others, The Diocese of
Bacolod v. COMELEC,3 Marcos v. Manglapus,4 Integrated
Bar of the Philippines v. Zamora,5 Estrada v. Desierto,6 and
Francisco, Jr. v. The House of Representatives7 in support of
their argument. These cases have resolved the political
question issue as well.

On the other hand, public respondents argue that

President DuterteÊs determination to have the remains of
former President Marcos interred at the LNMB does not
pose a justiciable controversy.8 The Solicitor General claims
that the decision involves „wisdom‰9 and thus beyond
judicial review. In fine, public respondents pose „policy or
wisdom‰ considerations to thwart the Court from taking
cognizance of the petitions.10 In support of his position, the
Solicitor General relies on the cases of
_______________
1 Section 1. The judicial power shall be vested in one Supreme

2 Lagman Petition, p. 3, par. 5.
3 G.R. No. 205728, January 21, 2015, 747 SCRA 1.
4 258 Phil. 479; 177 SCRA 668 (1989).
5 392 Phil. 618; 338 SCRA 81 (2000).
6 406 Phil. 1; 353 SCRA 452 (2001).
7 460 Phil. 830; 415 SCRA 44 (2003).
8 OSG Consolidated Comment, I.A., p. 24.
9 Id., par. 55, p. 24.
10 Id., par. 51, p. 24; Public RespondentÊs Memorandum, par. 55, p.
27.
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Ocampo vs. Enriquez
Mamba v. Lara,11 Belgica v. Ochoa, Jr.,12 and Tañada v.

Cuenco13 as jurisprudential anchors.
In Francisco, Jr. v. The House of Representatives,14 the
Court, after recalling the deliberations of the 1986
Constitutional Commission in relation to Section 1, Article
VIII15 of the 1987 Constitution, espoused that there are two
species of political questions: (1) „truly political questions‰
or „nonjusticiable political questions‰ and (2) „justiciable
political questions‰ or those which are „not truly political

questions.‰ Thus, truly political questions are beyond

judicial review while courts can review questions which are
not truly political in nature.16 The Court explained in
Francisco:
However, Section 1, Article VIII, of the Constitution does not

define what are „truly political questions‰ and those which are not
truly political. Identification of these two species of political
questions may be problematic. There has been no clear standard.
The American case of Baker v. Carr attempts to provide some:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a
courtÊs undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or
an unusual need for questioning adherence to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on
one question. (Italics supplied)
_______________
11 623 Phil. 63; 608 SCRA 149 (2009).

12 721 Phil. 416; 710 SCRA 1 (2013).
13 103 Phil. 1051 (1957).
15 Supra note 1.
Manggagawang Pilipino, Inc., supra note 7 at pp. 911-912; pp. 150-151.
614

Ocampo vs. Enriquez

Of these standards, the more reliable have been the first three:
(1) a textually demonstrable constitutional commitment of the issue
to a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the
impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion. These standards are not
separate and distinct concepts but are interrelated to each in that
the presence of one strengthens the conclusion that the others are
also present.
The problem in applying the foregoing standards is that the
American concept of judicial review is radically different from our
current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether
they should pass upon a constitutional issue.
In our jurisdiction, the determination of whether an issue
involves a truly political question and a nonjusticiable question lies
in the answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon political
bodies. If there are, then our courts are duty-bound to examine
whether the branch or instrumentality of the government properly
acted within such limits. This Court shall thus now apply this
standard to the present controversy.17 (Citations omitted)
As early as the landmark case of Tañada v. Cuenco,18

the Court has already recognized that, while the action of
the executive or legislative department may be dictated by
public or political policy, or may involve a question of policy
or its wisdom, the judiciary is nonetheless charged with the
special duty of determining the limitations which the law
places on all official action, viz.:
„It is not easy, however, to define the phrase Âpolitical question,Ê

nor to determine what matters fall within its scope. It is frequently
used to designate all questions that lie outside the scope of the
judicial questions, which under the constitution, are to be decided
by the people in their sovereign capacity, or in regard to which
_______________
17 Id.
18 Tañada v. Cuenco, supra note 13.

615
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Ocampo vs. Enriquez
full discretionary authority has been delegated to the legislative or

executive branch of the government.‰ x x x
xxxx
„x x x What is generally meant, when it is said that a question is

political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or that it
has been specifically delegated to some other department or
particular officer of the government, with discretionary power to
act. x x x Thus the Legislature may in its discretion determine
whether it will pass a law or submit a proposed constitutional
amendment to the people. The courts have no judicial control over
such matters, not merely because they involve [a] political question,
but because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor may
exercise the powers delegated to him, free from judicial
control, so long as he observes the laws and acts within the
limits of the power conferred. His discretionary acts cannot be
controllable, not primarily because they are of a political nature,
but because the Constitution and laws have placed the particular
matter under his control. But every officer under a
constitutional government must act according to law and
subject him to the restraining and controlling power of the
people, acting through the courts, as well as through the
executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department
which is charged with the special duty of determining the
limitations which the law places upon all official action. The
recognition of this principle, unknown except in Great Britain and
America, is necessary, Âto the end that the government may be
one of laws and not [of] menÊ · words which Webster said were
the greatest contained in any written constitutional document.‰ x x
x19

The Solicitor General argues that the wisdom of the

President cannot be questioned when, in the exercise of his
powers under the Constitution and the Administrative
Code, he deemed it appropriate to inter the remains of
former President Marcos in a parcel of land of the public
domain devoted for the purpose of being a military shrine,
and recognize
_______________
19 Id., at pp. 1066-1067. (emphasis supplied)
616

Ocampo vs. Enriquez
his having been a former President, a Medal of Valor

Awardee, a member of the retired military personnel, and a
war veteran.20
A mere invocation of the wisdom of the PresidentÊs
actions and orders does not make them untrammeled, as
indeed, the exercise of Presidential powers and
prerogatives is not without limitations · the exercise of
the Presidential power and prerogative under the
Constitution and the Administrative Code, which the
public respondents invoke, is circumscribed within defined
constitutional, legal, and public policy standards.
In fact, the reliance by the Solicitor General on the
powers of the President under the Constitution and the
1987 Revised Administrative Code („RAC‰) to justify his
decision to inter the remains of former President Marcos in
the LNMB necessarily calls into play any and all
underlying constitutional and legal limitations to such
powers. Within this paradigm, judicial review by the Court
is justifiable, if not called for. There is, thus, no truly
political question in relation to the assailed action of the
President if this is justified to have been made allegedly

pursuant to his purported powers under the Constitution

and the RAC.
Apart from his powers under the Constitution and the
RAC, the Solicitor General also argues that the PresidentÊs
order to allow former President MarcosÊ interment at the
LNMB is based on his determination that it shall promote
national healing and forgiveness, and redound to the
benefit of the Filipino people.21 He further argues that the
PresidentÊs decision is not simply a matter of political
accommodation, or even whim, but, viewed from a wider
perspective, it is geared towards changing the national
psyche and thus begin the painful healing of this country.22
Lastly, he argues that the said order is in keeping with the
PresidentÊs campaign promise, his quest for genuine change
and his desire to efface MarcosÊ remains as the symbol of
polarity.23
In fine, the Solicitor General asks the Court to take the
foregoing arguments at face value and admit them as
truisms without any question,
_______________
20 OSG Consolidated Comment, par. 60, p. 25; Public RespondentsÊ

Memorandum, par. 62, p. 29.
21 Id., par. 61, p. 26; id., par. 63, p. 29.
22 Id., par. 3, p. 5.
23 Id., Prefatory Statement, pp. 3-5.
617
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Ocampo vs. Enriquez
on the proposition that if the Court were to scrutinize

them, then the PresidentÊs wisdom is being doubted. This
request, however, the Court cannot grant without
abnegating its constitutional duty24 of judicial review.
Requisites of Judicial Review

The flipside to the political question doctrine would be

the requisites of judicial review. Before the Court may hear
and decide a petition assailing the constitutionality of a law
or any governmental act, the following must first be
satisfied: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person
challenging the act must have standing to question the
validity of the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury as
a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity;
and (4) the issue of constitutionality must be the very lis
mota of the case.25 Of these four, the most important are
the first two requisites,26 and thus will be the focus of the
following discussion.
The case presents an

actual controversy ripe
for adjudication.
In Belgica v. Ochoa,27 the Court expounded anew on the

requirement of actual case or controversy in this wise:
By constitutional fiat, judicial power operates only when there is

an actual case or controversy. This is embodied in Section 1, Article
VIII of the 1987 Constitution which pertinently states that Âjudi-
_______________

Manggagawang Pilipino, Inc., supra note 7 at pp. 889-890; p. 223.
25 Belgica v. Ochoa, Jr., supra note 12 at pp. 518-519; p. 89.
26 Id., at p. 519; p. 819, citing Joya v. Presidential Commission on
Good Government, 296-A Phil. 595, 602; 225 SCRA 568, 575 (1993).
27 Id., at pp. 519-520; pp. 89-90.
618


Ocampo vs. Enriquez
cial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable x x x.Ê Jurisprudence provides that an actual case or
controversy is one which involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract
difference or dispute. In other words, Â[t]here must be a
contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence.Ê
Related to the requirement of an actual case or controversy is the
requirement of Âripeness,Ê meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. ÂA
question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual
challenging it. It is a prerequisite that something had then
been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must
allege the existence of an immediate or threatened injury to
itself as a result of the challenged action.Ê ÂWithal, courts will
decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical or
moot questions.Ê (Emphasis supplied)
With these standards, this case presents an actual case

or controversy that is ripe for adjudication. The
antagonistic claims on the legality of the interment of
former President Marcos at the LNMB as shown in
petitionersÊ assertion of legally enforceable rights that may
be infringed upon by the subject interment, on the one
hand, and the Solicitor GeneralÊs insistence on the
PresidentÊs prerogative to promote national healing, on the
other, clearly satisfy the requirement for contrariety of
legal rights. Furthermore, the issues in this case are also
ripe for adjudication because it has not been denied that
initial preparations and planning for the subject interment
have already been undertaken by public respondents.28
_______________

28 GovÊt now preparing for Marcos burial at Libingan, available at

<http://www.rappler.com/nation/142266-philippines-malacanang-
preparations-ferdinand-marcos-burial-libingan-ng-mga-bayani>, last
accessed on October 17, 2016.
619
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Ocampo vs. Enriquez
Petitioners have locus standi.
I do not agree with the ponenciaÊs holding that none of

the petitioners had standing to file the petitions for failure
to show direct and personal injury.
Locus standi is defined as a right of appearance in a
court of justice on a given question.29 It refers to a personal
and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the
challenged governmental act.30 To satisfy the requirement
of legal standing, one must allege such personal stake in
the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult
constitutional questions.31
In Agan, Jr. v. Philippine International Air Terminals
Co., Inc.,32 the Court recognized that in public actions, suits
are not usually brought by parties who have been
personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest. Thus, in a
long line of cases, nontraditional plaintiffs, such as
concerned citizens, taxpayers and legislators, who have not
been personally injured by the assailed governmental act,
have been given standing by this Court provided specific
requirements have been met.33
For legislators, they have standing to maintain inviolate
the prerogatives, powers, and privileges vested by the
Constitution in their office

_______________
29 Araullo v. Aquino III, 737 Phil. 457, 535; 728 SCRA 1, 79 (2014),
citing BlackÊs Law Dictionary, p. 941 (6th ed., 1991).
30 Imbong v. Ochoa, Jr., G.R. No. 204819, April 8, 2014, 721 SCRA
146, 283, citing Anak Mindanao Party-list Group v. The Executive
Secretary, 558 Phil. 338, 350; 531 SCRA 583, 591 (2007).
31 Galicto v. Aquino III, 683 Phil. 141, 170; 667 SCRA 150, 170
(2012).
32 450 Phil. 744, 803; 402 SCRA 612, 645-646 (2003).
620

Ocampo vs. Enriquez
and are allowed to sue to question the validity of any

official action, which infringe upon their legislative
prerogatives.34
In the case of taxpayers, they are allowed to sue where
there is a claim that public funds are illegally disbursed or
that public money is being deflected to any improper
purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law.35
When suing as a concerned citizen, the person
complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute or act complained of.
When the issue concerns a public right, however, it has
been held that being a citizen and having an interest in the
execution of the laws is already sufficient.36
Applying the foregoing standards to the present case:
(1) Victims of human rights violations during martial
law have the requisite legal standing to file their respective
petitions. Their personal and direct interest to question the
interment and burial of former President Marcos at the

LNMB rests on their right to a full and effective remedy

and entitlement to monetary and nonmonetary reparations
guaranteed by the State under the Constitution, domestic
and international laws.
(2) Petitioners also have standing as citizens-
taxpayers. The public character of the LNMB and the
general appropriations for its maintenance, preservation
and development satisfy the requirements for a taxpayerÊs
suit. To be sure, petitionersÊ assertion of every citizenÊs
right to enforce the performance of a public duty and to
ensure faithful execution of laws suffices to clothe them
with the requisite legal standing as concerned citizens.
_______________
34 Osmeña III v. Power Sector Assets and Liabilities Management

Corporation, G.R. No. 212686, September 28, 2015, 771 SCRA 559, 576.
35 Chavez v. Judicial and Bar Council, 691 Phil. 173, 196; 676 SCRA
579, 594-595 (2012).
Philippines Peace Panel on Ancestral Domain (GRP), 589 Phil. 387, 486;
568 SCRA 402, 456 (2008).
621
VOL. 807, NOVEMBER 8, 2016 621

Ocampo vs. Enriquez
(3) However, Members of Congress in the Lagman

petition and petitioner De Lima have no personality to
maintain the suit as legislators because they failed to
allege, much less show, how the PresidentÊs directive to
have the remains of former President Marcos interred at
the LNMB usurps or infringes upon their legislative
functions.
(4) Similarly, petitioners Saguisag, et al., as
intervenors in the case, have no legal standing to maintain
the suit in regard to their claim as human rights lawyers
as this is too general to clothe them the legal interest in the

matter in litigation or in the success of either of the parties

required under the Rules of Court.37
Be that as it may, the question of locus standi is but
corollary to the bigger question of the proper exercise of
judicial power.38 The Court may brush aside technical rules
when the matter is of transcendental importance deserving
the attention of the Court in view of their seriousness,
novelty and weight as precedents.39
The ponencia concludes by saying that „[the interment]
would have no profound effect on the political, economic,
and other aspects of our national life considering that more
than twenty-seven years since his death and thirty years
after his ouster have already passed.‰ Prescinding from
this statementÊs sheer and utter disregard of Philippine
history, the implications that the assailed act bear on the
StateÊs policy to guarantee full respect for human rights
embodied in the Constitution, on the body of jurisprudence
acknowledging the atrocities committed during martial
law, and on the legislative enactments and treaty
obligations granting full protection and reparation to the
victims of human rights violations, undoubtedly elevate
this case to the level of transcendental importance. A
relaxation of the rules of legal standing is thus properly
called for.
_______________
37 Id., at p. 487; pp. 456, 459.

38 David v. Macapagal-Arroyo, 522 Phil. 705, 763; 489 SCRA 160, 224
(2006).
442; 637 SCRA 78, 151-152 (2010).
622

Ocampo vs. Enriquez
Certiorari and prohibition

are proper remedies.
The Solicitor General assails the propriety of the

remedies sought by petitioners. He argues that a petition
for certiorari and prohibition does not lie against public
respondents inasmuch as the President, in directing the
interment of former President Marcos at the LNMB, did
not exercise judicial, quasi-judicial or ministerial functions.
The petitionersÊ resort to certiorari and prohibition was
proper. A petition for certiorari or prohibition under Rule
65 is an appropriate remedy to question, on the ground of
grave abuse of discretion, the act of any branch or
instrumentality of government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions.40
To reiterate, the expanded definition of judicial power,
under Article VIII, Section 1 of the Constitution, imposes
upon the Court and all other courts of justice, the power
and the duty 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 on the part of any
branch or instrumentality of the Government.‰
In the case of Araullo v. Aquino,41 the Court clarified
that the special civil actions of certiorari and prohibition
under Rule 65 of the Rules of Court are remedies by which
the courts discharge this constitutional mandate. Thus, it
was ruled that:
[T]he remedies of certiorari and prohibition are necessarily

broader in scope and reach, and the writ of certiorari or prohibition
may be issued 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
Govern-
_______________
40 Jardeleza v. Sereno, G.R. No. 213181, August 19, 2014, 733 SCRA
279, 328, citing Araullo v. Aquino III, supra note 29 at p. 531; p. 76;
Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015,
755 SCRA 182.

41 Araullo v. Aquino III, id.
623
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Ocampo vs. Enriquez
ment, even if the latter does not exercise judicial, quasi-judicial or

ministerial functions.
Thus, petitions for certiorari and prohibition are appropriate
remedies to raise constitutional issues and to review and/or prohibit
or nullify the acts of legislative and executive officials.
Necessarily, in discharging its duty under Section 1, supra, to set
right and undo any act of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch or instrumentality of the
Government, the Court is not at all precluded from making the
inquiry provided the challenge was properly brought by interested
or affected parties. The Court has been thereby entrusted expressly
or by necessary implication with both the duty and the obligation of
determining, in appropriate cases, the validity of any assailed
legislative or executive action. This entrustment is consistent with
the republican system of checks and balances.42
Therefore, that the assailed act and/or issuances do not

involve the exercise of judicial, quasi-judicial or ministerial
functions is of no moment. Under the CourtÊs expanded
jurisdiction, the validity of the PresidentÊs directive to have
the remains of former President Marcos interred and
buried at the LNMB and the legality of the assailed
Memorandum and Directive issued by public respondents,
are proper subjects of a petition for certiorari and
prohibition.
Petitioners did not violate the rule

on hierarchy of courts.
The ponencia holds that petitioners failed to observe the

rule on hierarchy of courts as they should have filed with

the Regional Trial Court exercising jurisdiction over public

respondents, and that there exist no special, compelling
and important reasons to justify direct resort to this Court.
I disagree.
_______________
42 Id., at p. 531; pp. 74-75.
624

Ocampo vs. Enriquez
In The Diocese of Bacolod v. COMELEC,43 citing Bañez,

Jr. v. Concepcion,44 the Court held:
The Court must enjoin the observance of the policy on the

hierarchy of courts, and now affirms that the policy is not to be
ignored without serious consequences. The strictness of the policy is
designed to shield the Court from having to deal with causes that
are also well within the competence of the lower courts, and thus
leave time to the Court to deal with the more fundamental and
more essential tasks that the Constitution has assigned to it. The
Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when
serious and important reasons exist to justify an exception to the
policy.
xxxx
The Supreme Court is a court of last resort, and must so remain

if it is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition. It cannot and
should not be burdened with the task of dealing with causes in the
first instance. Its original jurisdiction to issue the so-called
extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefore.
Hence, that jurisdiction should generally be exercised relative to

actions or proceedings before the Court of Appeals, or before

constitutional or other tribunals, bodies or agencies whose acts for
some reason or another are not controllable by the Court of Appeals.
Where the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is
in either of these courts that the specific action for the writÊs
procurement must be presented. This is and should continue to be
the policy in this regard, a policy that courts and lawyers must
strictly observe. x x x45
In the same case, however, the Court recognized that

hierarchy of courts is not an iron-clad rule. Direct
invocation of this CourtÊs jurisdiction may be allowed for
special, important and compelling reasons clearly spelled
out in the petition, such as: (a) when there are genuine
_______________
43 The Diocese of Bacolod v. Commission on Elections, supra note 3.

44 693 Phil. 399, 412; 679 SCRA 237, 250-251 (2012).
45 The Diocese of Bacolod v. Commission on Elections, supra note 3 at
pp. 42-43.
625
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Ocampo vs. Enriquez
issues of constitutionality that must be addressed at the

most immediate time; (b) when the issues involved are of
transcendental importance; (c) in cases of first impression;
(d) when the constitutional issues raised are best decided by
this Court; (e) when the time element presented in this case
cannot be ignored; (f) when the petition reviews the act of a
constitutional organ; (g) when there is no other plain,
speedy, and adequate remedy in the ordinary course of law;
(h) when public welfare and the advancement of public
policy so dictates, or when demanded by the broader

interest of justice; (i) when the orders complained of are

patent nullities; and (j) when appeal is considered as
clearly an inappropriate remedy.46
Contrary to the ponenciaÊs holding, there are special
and compelling reasons attendant in the case at bar which
justify direct resort to this Court. Apart from the fact that
the issues presented here are of transcendental
importance, as earlier explained, they are being brought
before the Court for the first time. As no jurisprudence yet
exists on the matter, it is best that this case be decided by
this Court.
Moreover, while the petitions may have been directed
against the Memorandum and Directive issued by public
respondents, the ultimate act assailed is an executive
action. In Drilon v. Lim,47 the Court ruled:
In the exercise of this jurisdiction, lower courts are advised to act

with the utmost circumspection, bearing in mind the consequences
of a declaration of unconstitutionality upon the stability of laws, no
less than on the doctrine of separation of powers. As the questioned
act is usually the handiwork of the legislative or the executive
departments, or both, it will be prudent for such courts, if only out
of a becoming modesty, to defer to the higher judgment of this Court
in the consideration of its validity, which is better determined after
a thorough deliberation by a collegiate body and with the
concurrence of the majority of those who participated in its
discussion.48
_______________
46 Id., at pp. 45-50.

47 G.R. No. 112497, August 4, 1994, 235 SCRA 135.
48 Id., at p. 140.
626

Ocampo vs. Enriquez

Furthermore, time was of the essence in this case. The

public pronouncement of Presidential Spokesman Ernesto
Abella that the burial for former President Marcos would
push through „unless the Supreme Court will issue a
TRO‰;49 news reports that the burial would be scheduled on
September 18, 2016,50 and the PresidentÊs statement that
he was willing to allow the Marcos family to decide on the
date of the burial and adding that they could even set the
date of the burial on September 11, 2016,51 cannot be
ignored.
Exhaustion of administrative
remedies does not apply in
this case.
The ponencia upholds the Solicitor GeneralÊs claim that

petitioners failed to exhaust administrative remedies
because they should have first sought with the Office of the
President the reconsideration of the subject directives.
This is untenable.
The doctrine of exhaustion of administrative remedies is
not absolute as there are numerous exceptions laid down
by jurisprudence, namely: (a) when there is a violation of
due process; (b) when the issue involved is purely a legal
question; (c) when the administrative action is patently
illegal amounting to lack or excess of jurisdiction; (d) when
there is estoppel on the part of the administrative agency
concerned; (e) when there is irreparable injury; (f) when the
respondent is a department sec-
_______________
49 Palace: HeroÊs burial for Marcos to proceed unless thereÊs a TRO,

available at
<http://www.gmanetwork.com/news/story/577948/news/nation/palace-
hero-s-burial-for-marcos-to-proceed-unless-there-s-a-tro>, last accessed
on October 17, 2016.
50 Palace clueless on who will pay for Marcos funeral, available at
<http://manilastandardtoday.com/news/-main-stories/top-
stories/213621/palace-clueless-on-who-will-pay-for-marcos-funeral.html>,
last accessed on October 17, 2016.
51 Duterte confirms Marcos burial at the Libingan ng mga Bayani,

available at <http://cnnphilippines.com/news/2016/08/07/marcos-
libingan-ng-mga-bayani-burial.html>, last accessed on October 17, 2016.
627
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Ocampo vs. Enriquez
retary whose acts as an alter ego of the President bear the

implied and assumed approval of the latter; (g) when to
require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification
of a claim; (i) when the subject matter is a private land in
land case proceedings; (j) when the rule does not provide a
plain, speedy and adequate remedy; or (k) when there are
circumstances indicating the urgency of judicial
intervention.52
In the petitions before the Court, circumstances (b), (f),
(g) and (k) are present.
First, as already mentioned, the case involves a matter
of extreme urgency. The urgency of judicial intervention is
self-evident in the CourtÊs decision to issue a Status Quo
Ante Order on August 23, 2016, which was extended until
November 8, 2016.
Second, the principal issue in this case of whether the
President, in ordering the interment and burial of the
remains of former President Marcos at the LNMB,
committed grave abuse of discretion and/or violated the
Constitution and other statutes is purely of law and will
ultimately be decided by the courts of justice. In this
regard, Vigilar v. Aquino53 explains the reason for the
exception, viz.:
Said question at best could be resolved only tentatively by the

administrative authorities. The final decision on the matter
rests not with them but with the courts of justice.
Exhaustion of administrative remedies does not apply,
because nothing of an administrative nature is to be or can
be done. The issue does not require technical knowledge

and experience but one that would involve the

interpretation and application of law. (Emphasis supplied)
Third, it was upon the verbal order of the President that

the assailed Memorandum and Directive were issued by
public respondents. This, in fact, is extant in the very
language of the Memorandum itself. Moreover, the
President, on numerous occasions, had insisted that,
notwithstand-
_______________
52 The Diocese of Bacolod v. Commission on Elections, supra note 3 at

pp. 59-60, citing Chua v. Ang, 614 Phil. 416, 425-426; 598 SCRA 229, 238
(2009).
53 654 Phil. 755, 761-762; 639 SCRA 772, 778 (2011), citing Republic
v. Lacap, G.R. No. 158253, March 2, 2007, 517 SCRA 255, 266-267.
628

Ocampo vs. Enriquez
ing oppositions, including the filing of the consolidated

petitions, he would make good his promise to allow the
burial of the former President Marcos at the LNMB54 and
even allow the Marcos family to decide on the date of the
burial. With these pronouncements, seeking relief with the
Office of the President would have been an exercise in
futility.
Substantive Issues
Having established the jurisdiction of this Court to rule

upon these consolidated petitions under Rule 65, pursuant
to its power of judicial review under the expanded
definition of judicial power in Article VIII, Section 1 of the
Constitution, I now proceed to the substantive issues.

Grave abuse of discretion
The office of the writs of certiorari and prohibition is to

correct errors of jurisdiction arising from grave abuse of
discretion. Very simply, then, the most important question
that needs to be answered in this case is fairly
straightforward: whether or not public respondents acted
of jurisdiction in ordering the interment of former
Restated, in ordering the interment of former President
Marcos in the LNMB, did public respondents contravene or
violate the Constitution, the law, or existing jurisprudence?
55
If they did, then they committed grave abuse of
discretion,56 the ponencia concedes as much. Whimsical-
_______________
54 Duterte asked to reconsider Marcos burial at Libingan ng mga

Bayani, available at
<http://www.gmanetwork.com/news/story/568973/news/nation/duterte-
asked-to-reconsider-marcos-burial-at-libingan-ng-mga-bayani>, last
accessed on October 17, 2016; Duterte: Follow the law on heroÊs burial for
Marcos, available at <http://news.abs-cbn.com/news/08/11/16/duterte-
follow-the-lawon-heros-burial-for-marcos>, last accessed on October 17,
2016.
55 See Perez-Rosario v. Court of Appeals, 516 Phil. 204, 209; 494
SCRA 66, 85 (2006); Dueñas, Jr. v. House of Representatives Electoral
Tribunal, 610 Phil. 730, 760; 593 SCRA 316, 345-346 (2009).
56 See Balangauan v. Court of Appeals, Special Nineteenth Division,
584 Phil. 183; 562 SCRA 184 (2008); Banal III v. Panganiban, 511 Phil.
605; 475 SCRA 164 (2005); Republic v. COCOFED, 423 Phil. 735; 372
SCRA 462 (2001).
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VOL. 807, NOVEMBER 8, 2016 629

Ocampo vs. Enriquez

ity, caprice and arbitrariness are also considered in

determining the existence of grave abuse. I fully concur
with Justice LeonenÊs discussion on the subject, and will
confine my discussion to whether the interment violates
the Constitution, law or jurisprudence.
Directly answering the question, I believe that the
petitions are with merit, and that the order to inter the
remains of former President Marcos in the LNMB is
contrary to the Constitution, the law, and several executive
issuances that have the force of law, as well as the public
policy that the Constitution, the said laws, and executive
issuances espouse and advance. The argument that
burying former President Marcos in the LNMB does not
make him a hero disregards the status of the LNMB as a
national shrine, the public policy in treating national
shrines, the standards set forth in these laws and executive
issuances as well as in the AFP LNMB burial regulations
(„AFP Regulations‰).
Before explaining how the intended interment of former
President Marcos violates the Constitution, law, executive
issuances, public policy, and custom, it would be apropos to
examine the legal bases offered by the Solicitor General
and private respondents Heirs of Marcos in defending the
legality of the PresidentÊs act of allowing the interment and
burial of former President Marcos in the LNMB, as upheld
by the ponencia.
The PresidentÊs power to reserve

tracts of land of the public domain
for a specific public purpose.
The ponencia considers the PresidentÊs power to reserve

land for public purpose, under Section 14, Chapter IV of
Book III, Title I of the RAC, as basis for the decision to
inter former President Marcos in the LNMB.57 Section 14
provides:
SECTION 14. Power to reserve Lands of the Public and Private

Domain of the Government.·(1) The President shall have the
power to reserve for settlement or public use, and for specific public
purposes, any of the lands of the public domain, the use of which is

_______________
57 OSG Comment, pars. 131-138, pp. 42-44.
630

Ocampo vs. Enriquez
not otherwise directed by law. The reserved land shall thereafter

remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation.
(2) He shall also have the power to reserve from sale or other
disposition and for specific public uses or purposes, any land
belonging to the private domain of the Government, or any of the
Friar lands, the use of which is not otherwise directed by law, and
thereafter such land shall be used for the purposes specified by
such proclamation until otherwise provided by law.
This power is, in turn, traced by the Solicitor General to

the PresidentÊs power to reserve lands under
Commonwealth Act No. 141, or the Public Land Act.58 The
provision that empowers the President to reserve tracts of
land of the public domain for a specific purpose, in turn,
reads:
CHAPTER XI
Reservations for Public and Semi-Public Purposes
SECTION 83. Upon the recommendation of the Secretary of

Agriculture and Commerce, the President may designate by
proclamation any tract or tracts of land of the public domain as
reservations for the use of the Commonwealth of the Philippines or
of any of its branches, or of the inhabitants thereof, in accordance
with regulations prescribed for this purpose, or for quasi-public uses
or purposes when the public interest requires it, including
reservations for highways, rights-of-way for railroads, hydraulic
power sites, irrigation systems, communal pastures or leguas

comunales, public parks, public quarries, public fishponds,

workingmenÊs village and other improvements for the public
benefit.
First of all, it bears noting that under the provisions of

both the RAC and the Public Land Act, this power to
reserve government lands of the public and private domain
is exercised through a Presidential Proclamation59 or,
under the Revised Administrative Code of 1917, by
executive
_______________
58 Id.
59 Under Section 4, Chapter II of Book III, Title I of the REVISED
ADMINISTRATIVE CODE, a proclamation is an act of the President fixing a
date or declar-
631
VOL. 807, NOVEMBER 8, 2016 631

Ocampo vs. Enriquez
order.60 Elsewhere in the Public Land Act, the

proclamation where the reservation is made is forwarded to
the Director of Lands, and may require further action from
the Solicitor General.61
An illustration is found in the factual milieu of Republic
v. Octobre,62 wherein a particular tract of land of the public
domain was reserved for a public purpose by proclamation,
and thereafter released through a subsequent proclamation
by President Magsaysay. The Court cited therein the
authority of the President under Section 9 of the Public
Land Act to reclassify lands of the public domain „at any
time and in a similar manner, transfer lands from one class
to another,‰ to validate the release of the reservation
through the subsequent proclamation. This supports the
conclusion that the positive act that „perfects‰ the

reservation for public purpose (or release) is the issuance of

a proclamation. In fact, in Republic v. Estonilo,63 this mode
was considered necessary for a reservation to be effective or
valid:
To segregate portions of the public domain as reservations for the

use of the Republic of the Philippines or any of its branches, like the
Armed Forces of the Philippines, all that is needed is a
presidential proclamation to that effect.
In this case, however, there is no dispute that this

power, argued by the Solicitor General as belonging
exclusively to the President, was exercised through a
verbal order. Based on the foregoing, this falls short of the
manner prescribed by law for its exercise. Accordingly,
absent a Presidential Proclamation, I fail to fathom how
these laws (the RAC and the Public Land Act) can be used
to justify the decision to inter former President Marcos in
the LNMB. Moreover, without any showing that the
interment is consistent with LNMBÊs purpose as a national
shrine, it cannot be undertaken as no change in the said
specific purpose has been validly made.
_______________
ing a status or condition of public moment or interest, upon the existence

of which the operation of a specific law or regulation is made to depend.
60 CA No. 141, Sec. 64(d) and (e).
61 Id., Secs. 86 to 88.
62 123 Phil. 698; 16 SCRA 845 (1966).
63 512 Phil. 644, 646; 476 SCRA 265, 268 (2005).
632

Ocampo vs. Enriquez
But even assuming arguendo that the President can

exercise the power to reserve lands of the public domain

through a verbal order, the exercise of this power as basis

for the decision to inter former President Marcos in the
LNMB must still be scrutinized in two ways: first, does the
interment constitute public use or public purpose; and
second, is there any law that directs the use of the land the
President seeks to reserve.64
Based on the language of Section 14, Chapter IV of Book
III, Title I of the RAC itself, the power to reserve land is
qualified by the standards stated therein:
(1) That the reservation be for settlement or public use,
and for specific public purposes;
(2) That the use of the land sought to be reserved is not
otherwise directed by law.
First requirement: reserve

tracts of land of the public
domain for a specific pub-
lic purpose.
On the first standard, petitioners argued during the oral

arguments that the fulfillment of the PresidentÊs campaign
promise, made in favor of a private party, or to inter a
dictator or plunderer does not constitute a legitimate public
purpose as it does not serve public good. During the
interpellation by Justice Carpio, this was discussed:
JUSTICE CARPIO:
If you bury somebody in the Libingan, you have to spend money,

correct?
ATTY. COLMENARES:
Yes, Your Honor.
_______________
64 „The matter to be considered then is whether there is any law that

directs or authorizes the President to release a disposable public land
from a reservation previously made.‰ (Republic v. Octobre, supra note 62
at p. 701; pp. 847-848)

633
VOL. 807, NOVEMBER 8, 2016 633

Ocampo vs. Enriquez
JUSTICE CARPIO:
Funds will be spent?
ATTY. COLMENARES:
Yes, Your Honor.
JUSTICE CARPIO:
And you will be using public property, correct?
ATTY. COLMENARES:
Yes, Your Honor.
JUSTICE CARPIO:
Now, the rule is public funds and public property can be used
only for a public purpose, not a private purpose, correct?
ATTY. COLMENARES:
Yes, Your Honor.
JUSTICE CARPIO:
So, when you bury somebody in the Libingan who has been
dishonorably discharged or separated from service, are you using
public funds and property for a public purpose or for a private
purpose?
ATTY. COLMENARES:
That is not transformed, Your Honor. The shrine is intended for,

the public purpose or the shrine is for enshrinement or the
recognition of those who are revered and esteemed and now you are
going to put someone who is not revered and esteemed. That will be
a violation of that, Your Honor.
JUSTICE CARPIO:

Public purpose means is that (sic), means the use of the funds or
the property is for the general welfare for the public good?
ATTY. COLMENARES:
Yes, Your Honor.
JUSTICE CARPIO:
But if a person has been dishonorably discharged from service

and you bury him there in a government property that is for a
private purpose to extol or honor the family or the person?
ATTY. COLMENARES:
Yes, Your Honor.
JUSTICE CARPIO:
That is not for the public, there is no public good there, correct?
634

Ocampo vs. Enriquez
ATTY. COLMENARES:
Yes, Your Honor.
JUSTICE CARPIO:
So if the President now amends the regulations because the

regulations state, that if you are dishonorably discharged, you
cannot be buried in the Libingan and former President Marcos was
dishonorably separated by the people in 1986, he cannot be buried
but if the President now, the incumbent President amends the
regulation to say that he can still be buried upon my instruction
that cannot be done because thatÊs against the Constitution
because youÊre using public funds or property for a private purpose,
correct?
ATTY. COLMENARES:

Yes, Your Honor, in that sense and also in addition, if you agree
with the petitionerÊs contention that R.A. 289 has a standard, the
PresidentÊs directive cannot amend R.A. 289 and now must
therefore also be struck down, Your Honor.
JUSTICE CARPIO:
Okay, thank you counsel, thatÊs all.65
For his part, the Solicitor General stood firm and

insisted that the subject interment serves a public purpose,
when interpellated by Justice Leonen:
I have here an excerpt, Your Honor, Section 14. „The Power to

Reserve Lands of the Public and Private Domain of the Government.
·(1) The President shall have the power to reserve for settlement or
public use, and for specific public purposes, any of the lands of the
public domain, the use of which is not otherwise directed by law.‰
JUSTICE LEONEN:
So there are two things there, public use and public purpose.
Yes, Your Honor.
JUSTICE LEONEN:
Okay. Is the creation of a Libingan ng mga Bayani falling under

that power of the president, that statutory power, for public use?
_______________
65 TSN, August 31, 2016, pp. 55-63.
635
VOL. 807, NOVEMBER 8, 2016 635

Ocampo vs. Enriquez

Yes, Your Honor.
JUSTICE LEONEN:
Can any member of the public use the Libingan?
Not any member, Your Honor. It should be within the guidelines

of the AFP Regulations.
JUSTICE LEONEN:
So is it still public use?
It will be public use, Your Honor, depending on the observance of

the classifications which allow certain persons to be interred at the
JUSTICE LEONEN:
But if itÊs not public, if only a few individuals, select individuals,

can use the Libingan, therefore, it is not public use.
Maybe it can be public use but for a limited and classified

persons (sic) only, Your Honor.
JUSTICE LEONEN:
Is that the concept of public use? Is it your submission that that

is the concept of public use?
Because the cemetery can only accommodate so much, it cannot

accommodate the entire public of the Philippines, Your Honor.
JUSTICE LEONEN:
Okay, weÊll go to that later. In fact, you cited the case in your
consolidated comment. Chinese Cemetery, I think, vs. the City of
Manila where you said, that it does not need to have a character of

everybody using it to be public use, correct? And therefore, the key

there. . .
If there is a public purpose for it, yes, Your Honor.
JUSTICE LEONEN:
Yes. So the key there is public purpose.66
_______________
66 TSN, September 7, 2016, pp. 139-141.
636

Ocampo vs. Enriquez
There appears to be some confusion on the part of the

Solicitor General as to the difference between the terms
„public use‰ and „public purpose.‰ „Public use‰ connotes the
traditional concept of use by the public while „public
purpose‰ is understood more to mean in furtherance of the
public good, or in the public interest.67 The requirement of
public purpose is necessary because public funds and
properties cannot be used to serve primarily private
benefit.
This Court, in rejecting the validity of appropriating
public funds for a private purpose, explained in Pascual v.
Secretary of Public Works and Communications:68
As regards the legal feasibility of appropriating public funds for

a private purpose, the principle according to Ruling Case Law, is
this:
„It is a general rule that the legislature is without power to

appropriate public revenue for anything but a public purpose.
x x x It is the essential character of the direct object of the
expenditure which must determine its validity as justifying a

tax, 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, which results from the promotion of private
inter-
_______________
67 There has been a shift from the literal to a broader interpretation

of „public purpose‰ or „public use‰ for which the power of eminent domain
may be exercised. The old concept was that the condemned property
must actually be used by the general public (e.g., roads, bridges, public
plazas, etc.) before the taking thereof could satisfy the constitutional
requirement of „public use.‰ Under the more current concept, „public use‰
means public advantage, convenience or benefit, which tends to
contribute to the general welfare and the prosperity of the whole
community, like a resort complex for tourists or housing project. (Heirs of
Juancho Ardano v. Reyes, Nos. L-60549, 60553-60555, October 26, 1983,
125 SCRA 220; Sumulong v. Guerrero, No. L-48685, September 30, 1987,
154 SCRA 461; Province of Camarines Sur v. Court of Appeals, G.R. No.
103125, May 17, 1993, 222 SCRA 173)
68 110 Phil. 331 (1960).
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ests and the prosperity of private enterprises or

business, does not justify their aid by the use of public
money.‰ (25 R. L. C. pp. 398-400; italics supplied)
The rule is set forth in Corpus Juris Secundum in the following

language:
„In accordance with the rule that the taxing power must be
exercised for public purposes only, discussed, supra, Sec. 14,
money raised by taxation can be expended only for public
purposes and not for the advantage of private

individuals.‰ (85 C.J.S. pp. 645-646; italics supplied)
Explaining the reason underlying said rule, Corpus Juris

Secundum states:
„Generally, under the express or implied provisions of the

constitution, public funds may be used only for a public
purpose. The right of the legislature to appropriate funds is
correlative with its right to tax, and, under constitutional
provisions against taxation except for public purposes and
prohibiting the collection of a tax for one purpose and the
devotion thereof to another purpose, no appropriation of state
funds can be made for other than a public purpose. x x x
xxxx
„The test of the constitutionality of a statute requiring the

use of public funds is whether the statute is designed to
promote the public interests, as opposed to the furtherance of
the advantage of individuals, although each advantage to
individuals might incidentally serve the public. x x x‰ (81
C.J.S. p. 1147; italics supplied)69
While the Solicitor General argues that expenditures for

the interment are supported by AFP appropriations, the
PresidentÊs discretion in
_______________
69 Id., at p. 340. (Emphasis and underscoring supplied)
638

Ocampo vs. Enriquez
spending AFP appropriations to support the interment of

former President Marcos in the LNMB, by virtue of his
power of budget implementation and his power to reserve

the tract of land, remains, as stated, subject to the public

purpose requirement. In this case, the legitimateness of the
purpose will depend on what this Court determines to be
the nature of the interment · public or private. Does it
serve the public at large, or merely the partisan interests of
certain individuals?
The ponencia holds that the recognition of the former
President MarcosÊs status or contributions as a President,
veteran or Medal of Valor awardee satisfies the public use
requirement, and the interment as compensation for
valuable services rendered is public purpose that
justifies use of public funds. Apart from lacking legal basis,
this holding conveniently overlooks the primary purpose of
the interment extant in the records · the Solicitor General
has admitted that the burial of former President Marcos
was a campaign promise of the President to the Marcos
family:
JUSTICE CAGUIOA:
Before the President gave his verbal order to have the remains of
President Marcos interred in the Libingan, did the heirs of
President Marcos make a personal request to that effect?
In fact, Your Honor, that was a campaign promised (sic) even

before he was a President.
JUSTICE CAGUIOA:
And that was a promised (sic) given to, whom?
To the heirs of President Marcos, Your Honor.70
This admission by the Solicitor General indicates to me

that the interment is primarily to favor the Marcos family,
and serves no legitimate public purpose. Therefore, the
first requirement for the legitimate exercise of the
PresidentÊs power to reserve has not been met. Moreover,
any disbursement of public funds in connection with the
interment will

70 TSN, September 7, 2016, pp. 39-40.
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Ocampo vs. Enriquez
not be for a public purpose, as it is principally for the

advantage of a private party · separate from the
motivation for the same.
The holding of the ponencia, shown in this light, is
illogical: Marcos is not a hero, and burying him in the
LNMB will not convert him into a hero. But somehow, his
interment primarily serves a public purpose or otherwise
serves the interest of the public at large, and this Court
will allow the expenditure of public funds to inter him as a
President, veteran, and/or a Medal of Valor awardee as
compensation for valuable public services rendered ·
turning a blind eye to the disservice, damage and
havoc that former President Marcos caused to this
country.
Second requirement: the

use of the land sought to
be reserved not otherwise
directed by law.
The second requirement for the validity of a reservation

requires the determination of the existence of a law that
requires a different use for the land to be reserved. This
was the standard in Republic v. Octobre,71 when the Court
interpreted Section 64(e) of the Revised Administrative
Code of 1917, the applicable provision then in force, viz.:
SEC. 64. Particular powers and duties of President of the

Philippines.·In addition to his general supervisory authority, the
President of the Philippines shall have such specific powers and
duties as are expressly conferred or imposed on him by law and
also, in particular, the powers and duties set forth in this chapter.

Among such special powers and duties shall be:
xxxx
[(d) To reserve from settlement or public sale and for specific

public uses any of the public domain of the (Philippine Islands)
Philippines the use of which is not otherwise directed by law, the
same thereafter remaining subject to the specific public uses
indicated in
_______________
71 Republic v. Octobre, supra note 62 at pp. 700-701; pp. 847-848.
640

Ocampo vs. Enriquez
the executive order by which such reservation is made, until

otherwise provided by law or executive order.]
(e) To reserve from sale or other disposition and for specific
public use or service, any land belonging to the private domain of
the Government of the Philippines, the use of which is not
otherwise directed by law; and thereafter such land shall be used for
the specific purposes directed by such executive order until otherwise
provided by law.72
and held that „[t]he matter to be considered then is

whether there is any law that directs or authorizes the
President to release a disposable public land from a
reservation previously made.‰ Plainly, the powers in
Section 64(d) and (e) are restated in Section 14 of the RAC
cited by the Solicitor General. The CourtÊs interpretation of
Section 64(e), and by necessary extension now to Section 14
of the RAC, has two implications: first, the existence of a
law directing the use of the land sought to be reserved
affects the validity of the reservation · and the provisions
of the said law will form part of the standards by which the

court can determine the existence of grave abuse in case of

violation, and second, the original specific public use or
purpose continues until a subsequent law or executive
issuance releases or changes the said specific public use or
purpose for which the land was originally reserved.
In other words, the Solicitor GeneralÊs invocation of
Section 14 of the RAC, as intimated earlier, confirms that
the decision to inter former President Marcos in the LNMB
is not a truly political question as said decision is, in law,
subject to the CourtÊs power of judicial review · to
determine whether the standards of Section 14 of the RAC
have been met, and alongside all other laws, issuances,
judicial decisions and state of facts subject to judicial notice
that relate to former President Marcos as the intended
beneficiary of the directive to be interred in the LNMB.
Moreover, since the land that is the present site of the
LNMB is already reserved by Presidential Proclamation for
a specified public use or purpose · for national shrine
purposes · then such specified use or purpose continues
until the land is released by another Presidential
Proclamation. Since in this case, there is no such
Presidential Proclamation,
_______________
72 Italics supplied.
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the interment and concomitant expenditure of public funds

must, if justified by Section 14 of the RAC, constitute
public purpose and be consistent with the specified purpose
of its reservation, i.e., Proclamation No. 208 (S. 1967).
In fine, the verbal order to inter falls short of the
required manner of exercising the power to reserve.
Moreover, the interment cannot be justified by the power to

reserve because it is not a legitimate public purpose, and is

not consistent with the national shrine purposes of LNMBÊs
reservation. For the same reasons that the interment
serves no legitimate public purpose, no use of public
property or public funds can be made to support it.
Faithful execution and

power of control
As another basis for the power to order the interment of

former President Marcos in the LNMB, the Solicitor
General cites the PresidentÊs power of control over the
executive department. On the other hand, Heirs of Marcos
insist that the PresidentÊs order merely implements the
express provisions of RA 289 and the pertinent AFP
Regulations and, as such, cannot be considered as
capricious or whimsical, nor arbitrary and despotic.
Petitioners, however, aver the opposite · that the
Memorandum and Directive to bury former President
Marcos at the LNMB violate the faithful execution clause
because it disregards the clear and unequivocal declaration
made by Congress in RA 10368 that former President
Marcos is a recognized human rights violator.
There is no argument as to the existence of the power of
control and duty of faithful execution. However, as applied
to the case at bar, it bears to revisit the extent of the power
of control and duty to faithfully execute laws.
The PresidentÊs power of control and duty to faithfully
execute laws are found in Article VII, Section 17 of the
1987 Constitution, which provides:
642

Ocampo vs. Enriquez
SECTION 17. The President shall have control of all the

executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed.

In Book IV, Chapter 7, Section 38(a) of the RAC, control

is defined to include „authority to act directly whenever a
specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the
commission of acts; review, approve, reverse or modify acts
and decisions of subordinate officials or units; determine
priorities in the execution of plans and programs; and
prescribe standards, guidelines, plans and programs.‰ It
has also been jurisprudentially defined as the „power of an
officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that
of the latter.‰73
In Phillips Seafood (Philippines) Corp. v. The Board of
Investments,74 the Court held that the power of control is
not absolute, and may be effectively limited:
Such „executive control‰ is not absolute. The definition of

the structure of the executive branch of government, and the
corresponding degrees of administrative control and supervision is
not the exclusive preserve of the executive. It may be effectively
limited by the Constitution, by law, or by judicial decisions.
x x x (Emphasis supplied)
Therefore, while the order to inter former President

Marcos in the LNMB may be considered an exercise of the
PresidentÊs power of control, this is necessarily subject to
the limitations similarly applicable to his subordinate, the
Philippine Veterans Affairs Office („PVAO‰) or the
Quartermaster General · found in the Constitution, laws
and executive Issuances.
This is consistent with the duty imposed upon the
President by the faithful execution clause, which this Court
explained, thus:
_______________
73 Ham v. Bachrach Motor Co., Inc., 109 Phil. 949, 957 (1960).
74 597 Phil. 649, 661; 578 SCRA 69, 81-82 (2009).

643
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Ocampo vs. Enriquez
That the President cannot, in the absence of any statutory

justification, refuse to execute the laws when called for is a
principle fully recognized by jurisprudence. In In re Neagle, the US
Supreme Court held that the faithful execution clause is „not
limited to the enforcement of acts of Congress according to their
express terms.‰ According to Father Bernas, Neagle „saw as law
that had to be faithfully executed not just formal acts of the
legislature but any duty or obligation inferable from the
Constitution or from statutes.‰75 (Emphasis and underscoring
supplied)
Verily, the claim that the President is merely faithfully

executing law (i.e., the AFP Regulations) when he ordered
the interment must be examined in the context of the other
duties or obligations inferable from the Constitution and
from statutes that relate to the facts of this case. And the
order to inter cannot be considered a valid exercise of his
power of control, or his duty to faithfully execute the laws
because the interment violates the Constitution, laws and
executive issuances · how it violates these provisions are
discussed subsequently in this dissent.
Residual powers of the President
In default of, or in addition to, the PresidentÊs power to

reserve lands, power of control, and faithful execution of
the laws, the Solicitor General claims that the decision to
inter former President Marcos is an exercise of the residual
powers of the President. And, in this connection, the
Solicitor General harps on the inherent and exclusive
prerogative of the President to determine the countryÊs
policy of national healing.76
Residual powers are provided in Book III, Title I,
Chapter 7, Section 20 of the RAC, thus:

SECTION 20. Residual Powers.·Unless Congress provides

otherwise, the President shall exercise such other powers and
functions vested in the President which are provided for under the
laws
_______________
75 Biraogo v. Philippine Truth Commission of 2010, supra note 39 at

pp. 538-539; p. 346.
76 OSG Memorandum or Consolidated Comment.
644

Ocampo vs. Enriquez
and which are not specifically enumerated above, or which are not
delegated by the President in accordance with law.
In Larin v. Executive Secretary,77 the claim of exercise of

residual power to validate the streamlining of the Bureau
of Internal Revenue was examined in light of whether or
not a law exists that gives the President the power to
reorganize.
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O.
No. 292 which states:
„Sec. 20. Residual Powers.·Unless Congress provides

otherwise, the President shall exercise such other powers
and functions vested in the President which are
provided for under the laws and which are not specifically
enumerated above or which are not delegated by the
President in accordance with law.‰ (italics ours)
This provision speaks of such other powers vested in the

President under the law. What law then which gives him the power
to reorganize? It is Presidential Decree No. 1772 which amended
Presidential Decree No. 1416. These decrees expressly grant the

President of the Philippines the continuing authority to reorganize

the national government, which includes the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities
and to standardize salaries and materials. The validity of these two
decrees are unquestionable. x x x78
On the other hand, in Sanlakas v. Reyes,79 this Court

made the following observation on „residual powers‰:
The lesson to be learned from the U.S. constitutional history is

that the Commander-in-Chief powers are broad enough as it is and
become more so when taken together with the provision on
executive
_______________
77 345 Phil. 961; 280 SCRA 713 (1997).

78 Id., at p. 979; p. 730.
79 466 Phil. 482; 421 SCRA 656 (2004).
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Ocampo vs. Enriquez
power and the presidential oath of office. Thus, the plenitude of the
powers of the presidency equips the occupant with the means to
address exigencies or threats which undermine the very existence of
government or the integrity of the State.80
Inasmuch as the Solicitor General has failed to provide

the persuasive constitutional or statutory basis for the
exercise of residual power, or even the exigencies which
„undermine the very existence of the government or the
integrity of the State‰ that the order to inter former
President Marcos in the LNMB seeks to address, the Court
should have been left with no recourse except to examine

the factual bases, if any, of the invocation of the residual

powers of the President, as this is the duty given to the
Court pursuant to its power of judicial review.
Jurisprudence mandates that there is no grave abuse of
discretion provided there is sufficient factual basis for the
exercise of residual powers.81 Conversely, when there is
absence of factual basis for the exercise of residual power,
this will result in a finding of arbitrariness, whimsicality
and capriciousness that is the essence of grave abuse of
discretion.
As early as Marcos v. Manglapus,82 the Court, after
conceding to then President Corazon Aquino the discretion
to prohibit the Marcoses83 from returning to the
Philippines under the „residual unstated powers of the
President x x x to safeguard and protect general welfare,‰
proceeded to still ascertain if her decision had factual basis,
viz.:
Under the Constitution, judicial power includes the duty 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. [Art. VIII, Sec. 1] Given this
wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of
the Court to decide.
_______________
80 Id., at p. 518; p. 675.

81 Marcos v. Manglapus, supra note 4; Sanlakas v. Executive
Secretary, supra note 79; and Integrated Bar of the Philippines v.
Zamora, supra note 5.
82 Id.
83 Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr.,
Irene M. Araneta, and Imee Manotoc.
646

Ocampo vs. Enriquez

The present Constitution limits resort to the political question

doctrine and broadens the scope of judicial inquiry into areas which
the Court, under previous constitutions, would have normally left to
the political departments to decide. But nonetheless there remain
issues beyond the CourtÊs jurisdiction the determination of which is
exclusively for the President, for Congress or for the people
themselves through a plebiscite or referendum. We cannot, for
example, question the PresidentÊs recognition of a foreign
government, no matter how premature or improvident such action
may appear. We cannot set aside a presidential pardon though it
may appear to us that the beneficiary is totally undeserving of the
grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved
to the people.
There is nothing in the case before us that precludes our
determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by petitioners
show that the framers intended to widen the scope of judicial review
but they did not intend courts of justice to settle all actual
controversies before them. When political questions are
involved, the Constitution limits the determination to
amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide. In this light, it would appear
clear that the second paragraph of Article VIII, Section 1 of the
Constitution, defining „judicial power,‰ which specifically empowers
the courts to determine whether or not there has been a grave
abuse of discretion on the part of any branch or instrumentality of
the government, incorporates in the fundamental law the ruling in
Lansang v. Garcia [No. L-33964, December 11, 1971, 42 SCRA 448]
that:
Article VII of the [1935] Constitution vests in the

Executive the power to suspend the privilege of the writ of
habeas corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system of
government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is

not absolute. What is more, it goes hand in hand with the

system of checks and balances,
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Ocampo vs. Enriquez
under which the Executive is supreme, as regards the

suspension of the privilege, but only if and when he acts
within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is
vested in the Judicial Department, which, in this respect, is,
in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court
is merely to check · not to supplant · the Executive, or to
ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the
power vested in him or to determine the wisdom of his act. x x
x [at pp. 479-480]
Accordingly, the question for the Court to determine is

whether or not there exist factual bases for the President to
conclude that it was in the national interest to bar the
return of the Marcoses to the Philippines. If such postulates
do exist, it cannot be said that she has acted, or acts,
arbitrarily or that she has gravely abused her discretion in
deciding to bar their return.
We find that from the pleadings filed by the parties, from their
oral arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the Armed Forces of the
Philippines and the National Security Adviser, wherein petitioners
and respondents were represented, there exist factual bases for
the PresidentÊs decision.84 (Emphasis supplied)
In Integrated Bar of the Philippines v. Zamora,85 the

Court, while conceding that the President has the power to
call out the armed forces to prevent or suppress lawless

violence, invasion or rebellion, again inquired into the

factual determination by then President Joseph Ejercito
Estrada as to the necessity to call out the armed forces,
particularly the Marines, to aid the PNP in visibility
patrols around the metropolis before it ruled that he did
not gravely abuse his discretion. The Court observed:
_______________
84 Marcos v. Manglapus, supra note 4 at pp. 506-508; pp. 696-697.

648

Ocampo vs. Enriquez
The 1987 Constitution expands the concept of judicial review by

providing that „[T]he Judicial power shall be vested in one Supreme
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.‰
Under this definition, the Court cannot agree with the Solicitor
General that the issue involved is a political question beyond the
jurisdiction of this Court to review. When the grant of power is
qualified, conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions have
been met or the limitations respected, is justiciable · the
problem being one of legality or validity, not its wisdom.
Moreover, the jurisdiction to delimit constitutional boundaries has
been given to this Court. When political questions are involved,
the Constitution limits the determination as to whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the official
whose action is being questioned.

xxxx
Thus, it is the unclouded intent of the Constitution to vest upon

the President, as Commander-in-Chief of the Armed Forces, full
discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the PresidentÊs
exercise of judgment deserves to be accorded respect from this
Court.
The President has already determined the necessity and
factual basis for calling the armed forces. In his Memorandum,
he categorically asserted that, [V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to occur
in Metro Manila x x x. We do not doubt the veracity of the
PresidentÊs assessment of the situation, especially in the
light of present developments. The Court takes judicial
notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other
public places. These are among the areas of deployment
described in the LOI 2000. Considering all these facts, we
hold that the Presi-
649
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Ocampo vs. Enriquez
dent has sufficient factual basis to call for military aid in

law enforcement and in the exercise of this constitutional
power.86 (Citations omitted; emphasis supplied)
In both Marcos v. Manglapus and Integrated Bar of the

Philippines v. Zamora, the Court, pursuant to the
expanded concept of judicial power under the 1987
Constitution, took the „pragmatist‰ approach that a
political question87 should be subject to judicial review to
determine whether or not there had been a grave abuse of

discretion amounting to lack or excess of jurisdiction on the

part of the official whose action was being questioned. In
turn, a determination of the existence or nonexistence of
grave abuse of discretion is greatly dependent upon a
finding by the Court that the concerned official had
adequate factual basis for his questioned action.
Thus, conceding to the President the power to order the
interment of the former President in the LNMB, did he,
however, have competent factual basis to conclude that his
decision would promote national healing, genuine change
and forgiveness, redound to the benefit of Filipino people,
change the national psyche, begin the painful healing of
this country, and efface the MarcosÊ remains as a symbol of
polarity?
National healing, genuine change, forgiveness, change
in national psyche, and effacing the MarcosÊs remains as
the symbol of polarity are not matters which the Court can
or may take judicial notice of.88 They are not self-evident or
self-authenticating. The public respondents and the private
respondents, Heirs of Marcos, have, therefore, the burden
to
_______________
86 Id., at pp. 638-645; pp. 105-112.

87 Not to be confused with a „truly political question‰ pursuant to the
Francisco v. HRET formulation.
88 Rule 129, Section 1 provides that judicial notice is mandatory with
respect to „the existence and territorial extent of states, their political
history, forms of government and symbols of nationality, the law of
nations, the admiralty and maritime courts of the world and their seals,
the political constitution and history of the Philippines, the official acts of
the legislative, executive and judicial departments of the Philippines, the
laws of nature, the measure of time, and the geographical divisions,‰
while Section 2 provides that judicial notice is discretionary with respect
to matters which are of public knowledge, or are capable of
unquestionable demonstration, or ought to be known to judges because of
their judicial functions.
650


Ocampo vs. Enriquez
factually substantiate them. The Court cannot be left, on

its own, to divine their significance in practical terms and
flesh them out.
Regarding national healing, does the Solicitor General
expect the Court to commiserate with and feel for whatever
„pain and suffering‰ the Marcos family may stand to
endure if former President Marcos is not interred in the
LNMB? The Court has not even been apprised of the
nature of such „pain and suffering.‰ In fact, counsel for the
heirs of Marcos refused to provide an answer when asked
on this issue during the oral arguments, thus:
JUSTICE CAGUIOA:
Can you tell me what injuries the Marcos family is suffering

because President Marcos is (has) not been interred in the
Libingan? Is there any injury?
ATTY. RAFAEL-ANTONIO:
Your Honor, with all due respect the issue here is the propriety of
the decision of President Duterte to inter him. The injury which the
Marcos family may be suffering would be, to discuss this, would be
amounting to an academic discussion, Your Honor.
JUSTICE CAGUIOA:
Not necessarily, we are a court of law and a court of equity and

as judges we are mandated to find a solution to any legal
controversy prescinding from the emotions. . .
Your Honor. . .
JUSTICE CAGUIOA:
That is the basis of my question.
Yes, Your Honor. I agree, Your Honor, but equity must follow the
law and in this case, the laws applicable do not consider the

injuries on the family of the deceased.
JUSTICE CAGUIOA:
So do I take it that you will not answer my question?
Yes, Your Honor.89
_______________
89 TSN, September 7, 2016, pp. 50-51.
651
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„[T]he painful healing of this country,‰ borrowing the

words of the Solicitor General, of the wounds brought about
by the Marcos martial rule actually started with his ouster
in 1986 and has progressed significantly throughout the
ensuing three decades. Indeed, as far as Heirs of Marcos
are concerned, they have almost regained their former
political stature. At present, there is a Marcos senator,90
who almost made it to the Vice Presidency, a Marcos
representative91 to the Congress of the Philippines, and a
Marcos governor.92 On the other hand, the victims of the
Marcos martial rule have partly won their day in court and
have been so far awarded sizeable judgments.93 Several
laws (e.g., RA 10368) have been enacted that recognize the
deaths, sufferings, injuries, deprivations that they endured,
and accord them reparation. In simple terms, there
appears to be no perceptible empirical correlation between
the intended burial of former President Marcos and the
supposed national healing the President seeks to promote.
To be sure, no reason has been offered that would clothe
the PresidentÊs decision as essential to this supposed
national healing.

„Genuine change,‰ without more, may have been an

excellent slogan during the campaign period, but as a
reason for the decision to inter former President Marcos in
the LNMB, is too amorphous and nebulous. What is it in
the present Filipino life that requires „genuine change,‰ the
Solicitor General has not even attempted to explain. How
does the interment of former President Marcos in the
LNMB effect this „genuine change?‰ Again, the Solicitor
General has not proffered any kind of explanation.
As defined, forgiveness is a „conscious, deliberate
decision to release feelings of resentment or vengeance‰
toward a person or group who has caused harm, regardless
of whether such persons are deserving of the same.94
Conversely, forgiveness does not mean glossing over or
denying
_______________
90 Ferdinand „Bongbong‰ R. Marcos, Jr.

91 Representative Imelda R. Marcos.
92 Ilocos Norte Governor Imee Marcos.
93 In Re: Estate of Marcos Human Rights Litigation, 910 F. Supp.
1460 (D. Haw. 1995), upheld in Hilao v. Marcos, 103. F.3d 762 (9th Cir.
1996).
94 What Is Forgiveness?, available at
<http://greatergood.berkeley.edu/toic/forgiveness/definition>, last
accessed on October 17, 2016.
652

Ocampo vs. Enriquez
the seriousness of an offense committed against oneÊs

person, nor does it mean condoning or excusing offenses or
legal accountability.95 Instead, forgiveness entails the
recognition of the pain that one has suffered, without
letting such pain prevent one from attaining healing or
moving on with their life.96

On the part of the Marcos heirs, the Solicitor General

quotes in their Memorandum Ilocos Norte Governor Imee
MarcosÊ message97 of „simple sorry‰98 during the recent
commemoration of her fatherÊs birthday, wherein she
purportedly „humbly sought forgiveness.‰99 Is this the
forgiveness that the President is after? But, forgiveness
cannot be exacted from the victims of the Marcos martial
rule because the State has no right to impose the same
upon them. The Court is helpless in the absence of a
reasonable and acceptable explanation how the PresidentÊs
objective of „forgiveness‰ is achieved by the intended
interment.
Unlike in Marcos v. Manglapus where „from the
pleadings filed by the parties [therein], from their oral
arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the Armed Forces of the
Philippines and the National Security Adviser, wherein
petitioners and respondents [therein] were represented,
there exist factual bases for the PresidentÊs decision‰ to bar
the return of the Marcoses to the Philippines in the
national interest,100 the Solicitor General has not identified
any tangible and material benefit that the nation will reap
with the interment of former President Marcos in the
LNMB. Thus, the Court is left with no alternative but to
conclude that it will only be Heirs of Marcos, who are
private citizens, who will stand to benefit from the
interment.
The Solicitor GeneralÊs postulate that the burial of the
former PresidentÊs remains in the LNMB is „geared
towards changing the national
_______________
95 Id.
96 Id.
97 Public RespondentsÊ Memorandum, p. 4.
98 Id.
99 Id.
100 Marcos v. Manglapus, supra note 4 at pp. 507-508; pp. 682, 697.

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psyche‰ is, again, as vague as the other motherhood

statements that have been bandied about.
„Psyche‰ is simply defined as the soul, mind or
personality of a person or group101 and the mental or
psychological structure of a person, especially as a motive
force.102 Conversely, „national psychology‰ may refer to the
soul, mind, or personality of a nation, or the mental
psychological structure of a nation.
The Solicitor General cannot just presume that the Court is
knowledgeable of the „national psyche‰ that the President
desires to engender or change. The PresidentÊs intentions
may be noble, but the Court cannot be expected to
speculate as to what he understands „national psyche‰ to
be or how the interment will engender or change the
„national psyche.‰
As to the burial of former President Marcos being in
keeping with the PresidentÊs campaign promise, the
Solicitor General effectively takes the position that with
the PresidentÊs proclamation as such, he must now keep his
campaign promise because the electorate „has spoken.‰103
But again, this is equivocal to say the least. To some, the
campaign promise is but a political concession to the Heirs
of Marcos and to attract the votes of the Marcos loyalists.
To others, who are perennially political cynics, campaign
promises are made to be broken, not cast in stone, and are
like debts listed on water. As to the reasons why the votersÊ
preference in the last national elections tilted in favor of
the President over the other presidential candidates,
political analysts can have their field day. The Court should
not try to second guess.
Regarding the Solicitor GeneralÊs premise that former
President MarcosÊ remains have become the symbol of
polarity, again, the necessary foundation for this was not
laid.
_______________

101 „Psyche,‰ available at <http://www.merriam-

webster.com/dictionary/psyche>, last accessed on October 17, 2016.
102 <http://www.dictionary.com/browse/psyche>, last accessed on
October 17, 2016.
103 TSN, September 7, 2016, pp. 83-87.
654

Ocampo vs. Enriquez
What the Court can take judicial notice of is that, at

present, former President Marcos lies in repose at the
Ferdinand E. Marcos Presidential Center,104 which is
situated in Batac, Ilocos Norte. The Center has a museum
which showcases memorabilia of the former President, and
a mausoleum where his remains lie inside a glass-encased
coffin which has been on public display since 1993. Many
flock to the mausoleum to view the remains of former
President Marcos and he continues to be admired by his
loyalists. Those who are presently vehemently opposing the
burial of former President Marcos in the LNMB have not,
for more than 20 years, questioned the right and decision of
the Heirs of Marcos to have his remains lie in repose at his
mausoleum. The so-called „polarity‰ symbolized by the
remains of the former President is, again, not apparent.
Thus, the mere incantation of buzzwords such as
„national psyche,‰ „national healing,‰ „genuine change,‰
„campaign promise‰ and „effacing symbol of polarity‰ as the
wisdom underlying the challenged order of the President
appears · in the absence of anything other than such
incantation · is nothing more than a legerdemain resorted
to prevent the Court from taking judicial cognition thereof
and to make the PresidentÊs action inscrutable. Without
sufficient factual bases, these magic words are ephemeral
and ambiguous. The Solicitor General has failed to provide
even the minimum specifics as to how such objectives, as
lofty as they are or pretended to be, will be achieved if the
PresidentÊs order is implemented. Consequently, this

failure to substantiate the factual bases of the PresidentÊs

assailed action should have left the Court with no option
but to rule that the PresidentÊs intended action is bereft of
any factual basis · and, for that reason, following Marcos
v. Manglapus, already constitutes grave abuse of
discretion.
Summation
To recapitulate: (1) there was no valid exercise of the

power to reserve under Section 14 of the RAC; (2) the
President may validly order the
_______________
104 Despite tourism loss, Batac mayor backs heroÊs burial for Marcos,
available at <http://www.rappler.com/nation/145804-batac-mayor-her-
burial-marcos>, last accessed on October 17, 2016.
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interment of former President Marcos in the LNMB

pursuant to his power of control and his duty to faithfully
execute laws, provided that no contravention of the
Constitution, laws, executive issuances, public policy,
customs and international obligations arises therefrom or
is committed; (3) the Solicitor General failed to show any
contingency for the valid exercise of the PresidentÊs
residual powers, and likewise failed to demonstrate
sufficient factual basis to justify the interment of former
Turning now to the relevant provisions of the
Constitution, laws, executive issuances, public policy,
customs and international obligations, I will explain in
turn how the interment violates them, and thus,
constitutes grave abuse.

The laws, executive issuances,

public policy and customs that
were violated.
Republic Act No. 289
PetitionersÊ reliance on RA 289 as anchor for their

argument that the intended burial of former President
Marcos is prohibited by this law is misplaced.
RA 289 directed the construction of a National Pantheon
intended to be the burial place for all the Presidents of the
Philippines, national heroes and patriots,105 and
established the Board of National Pantheon that is
mandated to cause the interment in the National Pantheon
of the mortal remains of all Presidents of the Philippines,
national heroes and patriots.106 Subsequently, in
Proclamation No. 431 issued by President Quirino in 1953,
a parcel of land in Quezon City was reserved. Thereafter,
by virtue of Proclamation No. 42 (S. 1954), this reservation
was withdrawn. No other property has been thus
earmarked or reserved for the construction of a National
Pantheon.
I agree that RA 289 is not applicable. Reading RA 289
together with Proclamation No. 431 leads to no other
conclusion than that the land on
_______________
105 Sec. 1, R.A. No. 289.

106 Sec. 2, id.
656

Ocampo vs. Enriquez
which the National Pantheon was to be built refers to a

discrete parcel of land that is different from site of the

LNMB. To be sure, the history of the LNMB, is that of a

parcel of land identified by Proclamation No. 208, Series of
1967, dated May 28, 1967, which is parcel 3, Psu-2031,
consisting of 1,428,800 square meters and whose technical
description is reflected in said Proclamation No. 208.
Accordingly, it is non sequitur to argue the applicability of
RA 289, or the standards indicated therein, to the LNMB,
which is a parcel of land that is totally different and
distinct.
That said, I fully concur with Justice Leonen that RA
289 remains an effective law consistent with Article 7 of
the Civil Code.
PD 105, RA 10066 and

10086, and the specific
policy in the treatment
of national shrines
It has to be acknowledged that there is no dispute that

the present LNMB is rightfully a military memorial
declared as a national shrine. The history of the LNMB,
as it is expressed in the different PDs and executive
issuances, shows that it is not an ordinary cemetery; it is
not an ordinary gravesite. Truthfully, and legally, its status
as a national shrine is beyond cavil.
In this regard, PD 105 squarely directs how national
shrines should be regarded. And while the decree
specifically mentions several places as national shrines, it
also unequivocally provides that all national shrines „and
others which may be proclaimed in the future as national
shrines‰ are to be regarded and treated as „hallowed
places.‰
Thus, the third Whereas clause of PD 105 mandates
that „it is the policy of the Government to hold and keep
said National Shrines as sacred and hallowed place.‰107
PD 105 is not a mere executive issuance. It is law. And
this law establishes a specific State policy in the treatment
of all national shrines declared before and after its
issuance. Accordingly, since the LNMB has
_______________

107 P.D. No. 105, 3rd Whereas Clause.
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Ocampo vs. Enriquez
been declared as a national shrine, the specific State policy

to hold and keep national shrines as a „sacred and
hallowed place‰ necessarily covers the LNMB. To be sure,
this policy extends to the LNMB despite the fact that its
declaration as a national shrine predated PD 105 as there
is no rational basis why the LNMB, already declared a
national shrine by Proclamation No. 208 in 1967, should be
treated differently from those sites that have been declared
as national shrines after PD 105.
The argument that PD 105 applies only to places of
birth, exile, imprisonment, detention or death of great and
eminent leaders of the nation is too narrow and myopic a
reading that it deserves scant consideration. Indeed, this
interpretation is contradicted and belied by the very
language of PD 105 itself which recognizes all other
national shrines that „may be declared in the future‰ as
also being sacred and hallowed places. The Court can take
judicial notice of a number of places declared as national
shrines after PD 105 · and therefore to be treated as
sacred and hallowed places · that are not places of birth,
exile, imprisonment, detention or death of great and
eminent leaders, such as the Kiangan War Memorial
Shrine which was established to perpetuate the surrender
site for the Japanese Imperial Forces and to serve as a
reminder of the „uselessness of war as a means of solving
international differences,‰108 the Quezon Memorial Circle
which was established in memory of the late President
Manuel L. Quezon even as President Quezon died in New
York, and the Balete Pass109 which was a battlefield where
the Americans and the Filipinos fought against the
Japanese Imperial Forces. To insist that the provisions of
PD 105, and the proscription against the prohibited acts

listed therein, will apply to a national shrine only if said

national shrine is the place of birth, exile, imprisonment,
detention or death of a great and eminent leader is plainly
ridiculous and downright error.
I find that PD 105 is applicable. No proposition is being
made to expand the import of the decree beyond its express
terms; no penalty is sought against any act involved in this
case. What is inescapable, however, is the explicit
statement of government policy to hold national
_______________
108 Presidential Decree No. 1682.

109 R.A. No. 10796 (2016).
658

Ocampo vs. Enriquez
shrines sacred. As well, the same policy is reiterated in RA

10066 and RA 10086 · order the preservation or
conservation of the cultural significance of national
shrines.
In this connection, the policy of PD 105 to hold and keep
the LNMB as a „sacred and hallowed place‰ is in
keeping with, and completely aligned with, the esteem
and reverence that Proclamation No. 89 accords to the
fallen soldiers, war dead and military personnel who were
meant to be buried in the LNMB.
As admitted by the Solicitor General during oral
arguments, the words „esteem and reverence‰ in
Proclamation No. 89 and „sacred and hallowed‰ in PD 105
are not empty and meaningless. The words „esteem and
reverence‰ set and mandate how the LNMB, in particular,
should be regarded, whereas the words „sacred and
hallowed‰ direct how national shrines, in general, should
be treated.
Truly, it is precisely because of the countryÊs collective

regard of the LNMB as the memorial in honor of the

heroism, patriotism and nationalism of its war dead as well
as its fallen soldiers and military personnel that President
Duterte held the rites honoring the countryÊs national
heroes at the LNMB in the morning of August 29, 2016.110
There is no question that LNMB has traditionally been the
site where National Heroes Day is commemorated.
The main premise of the ponencia appears to be that the
LNMB is still primarily and essentially a military
memorial, or a military shrine, notwithstanding the fact
that it was purposely excluded from the military
reservation for national shrine purposes by
Proclamation No. 208. The military nature of the LNMB is
seemingly relied upon to argue that standards relating to
national shrines in general, and to the LNMB in particular,
outside of the standards expressly embodied in the AFP
Regulations, cannot apply.
To me this is egregious error. The dual nature of the
LNMB as a military memorial and a national shrine cannot
be denied.
_______________
110
<http://www.gmanetwork.com/news/story/579292/news/nation/duterte-
leads-national-heroes-day-rites>; <http://news.abs-
cbn.com/news/08/29/16/look-duterte-leads-national-heroes-day-rites>,
last accessed on October 17, 2016.
659
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Former President Marcos himself appeared to have

recognized the distinction in the discerning manner that he
declared sites as military memorials or shrines and
national shrines · some he declared solely as military
shrines or memorial shrines, while others sites with

military significance were declared as national shrines. To

illustrate, he declared the Tirad Pass National Park,111
Fort San Antonio Abad,112 „Red Beach‰ (the landing point
of General Douglas MacArthur and the liberating forces),113
and an area of Mt. Samat,114 as national shrines, while a
parcel of land in Cavinti was declared as a memorial
shrine.115
The best exemplar, perhaps, is the Bantayog ng
Kiangan, the site in Ifugao where General Yamashita
surrendered to the Allied Forces. On July 9, 1975, former
President Marcos issued Proclamation No. 1460, declaring
the same as a military shrine under the administration and
control of the Military Memorial Division, Department of
National Defense.116 Two years later, on October 17, 1977,
he issued Proclamation No. 1682, declaring the previously
declared military shrine as a national shrine.117
Even PD 1076,118 issued by former President Marcos on
January 26, 1977, that transferred the functions of
administration, maintenance and
_______________
111 July 23, 1968 (Declaring the Tirad Pass National Park as Tirad
Pass National Shrine, Proclamation No. 433 [1968]).
112 May 27, 1967 (Reserving for National Shrine Purposes a Certain
Parcel of Land of the Private Domain Situated in the District of Malate,
City of Manila, Proclamation No. 207 [1967]).
113 Reserving Certain Parcel of Land of the Private Domain in Baras,
Palo, Leyte for the Province of Leyte, Proclamation No. 1272 [1974].
114 April 18, 1966 (Excluding from the Operation of Proclamation No.
24,
S. 1945, Proclamation No. 25 [1966]).
115 March 27, 1973 (Reserving for Memorial Shrine for the War Dead
a Certain Parcel of Land of the Public Domain in Cavinti, Laguna,
Proclamation No. 1123 [1973]).
116 Declaring the „Bantayog sa Kiangan‰ as a Military Shrine,
Proclamation No. 1460 [1975].
117 Declaring the Kiangan War Memorial Shrine in Linda, Kiangan,
Ifugao as a National Shrine, Proclamation No. 1682 [1977].
118 Amending Part XII (Education) and Part XIX (National Security)
of the Integrated Reorganization Plan, Presidential Decree No. 1076
[1977].

660

Ocampo vs. Enriquez
development of national shrines to the PVAO, found its

impetus, not on the ground that PVAO should have
exclusive jurisdiction over these national shrines, but on
the fact that the (then) Department of Defense had greater
capabilities and resources to more effectively administer,
maintain and develop the national shrines, and exercised
functions more closely related to the significance of the
national shrines.119
Verily, the argument that the LNMB was initially,
primarily, or truly a military memorial to maintain that
only the express disqualifications in the AFP Regulations
should control in the determination of who may be interred
therein, to the exclusion of the provisions of the
Constitution, laws and executive issuances, disregards the
fact that its status as a national shrine has legal
consequences.
The policy of PD 105 with respect to national shrines is
reiterated, or more accurately, expanded in the statement
of policy in RA 10066120 that has the objective of
protect[ing], preserv[ing], conserv[ing] and promot[ing] the
nationÊs cultural heritage, its property and histories;121 and
RA 10086122 that states the policy of the State to conserve,
promote and popularize the nationÊs historical and cultural
heritage and resources.123 Even assuming that PD 105 does
not apply to the LNMB, there can be no argument that the
later expression of legislative will in RA 10066 and RA
10086 accords even fuller protection to national shrines,
which includes the LNMB.
The term „national shrine‰ escapes express legal
definition. However, sufficient guidance is found in RA
10066124 that uses different permutations of the term:
„national historical shrines‰ is a category of cultural
property125 while the term „historical shrines‰ is defined to
refer to historical sites or structures hallowed and revered

for their history or asso-
_______________
119 Second and Third Whereas Clauses of PD No. 1076.

120 NATIONAL CULTURAL HERITAGE ACT OF 2009, Republic Act No. 10066,
March 24, 2010.
121 Article 2(a), id.
122 STRENGTHENING PEOPLESÊ NATIONALISM THROUGH PHILIPPINE HISTORY
ACT, Republic Act No. 10086, May 12, 2010.
123 Section 2, id.
124 Republic Act No. 10066, supra.
125 Section 4, id., uses the term „national historical shrine.‰
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Ocampo vs. Enriquez
ciation as declared by the National Historical Institute.126

Thereafter, RA 10066 uses the term „national shrines‰ in
its penal provision127 which could only mean national
historical shrine previously defined. Under this law, the
National Historical Institute („NHI‰), the body once given
powers of administration over the LNMB, was responsible
for significant movable and immovable cultural property
that pertains to Philippine history, heroes and the
conservation of historical artifacts.128
In RA 10086, „national historical shrines‰ refers to „sites
or structures hallowed and revered for their history or
association declared as such by the NHCP,‰129 which is the
successor of the NHI mentioned in RA 10066. RA 10086
interchangeably uses shrines130 and national shrines.131 In
both laws, the word „conservation‰ is defined as „processes
and measures of maintaining the cultural significance of a
cultural property including, but not limited to, physical,
social or legal preservation, restoration, reconstruction,
protection, adaptation or any combination thereof,‰
respectively,132 which is consistent with, and in fact

expanded the protection beyond, what may be argued as

merely prohibiting physical desecration in PD 105. The
clear legislative mandate in RA 10066 and 10086 require
conservation, not only of the physical integrity of national
shrines as cultural and historical resources, but also of the
cultural significance thereof.
These laws operate to accord legal protection to the
LNMB so that the standard applicable to it, in particular,
esteem and reverence in Proclamation No. 86, and to
national shrines, in general, as sacred and hallowed under
PD 105, will be upheld and maintained. In other words, if a
person who is not worthy of or held in esteem and
reverence is sought to be interred in the LNMB, then this
would be contrary to the policy to hold LNMB as a sacred
and hallowed place · and the Court must step in to
preserve and protect LNMBÊs cultural significance.
Relevantly, the
_______________
126 Section 3, id.

127 Section 48, id.
128 Section 31, id.
129 Section 3(n), RA No. 10086.
130 Sections 7(d) and (n), id.
131 Sections 3(b), 7(e) and 20, id.
132 Section 3(i) in RA No. 10066 and Section 3(c), id.
662

Ocampo vs. Enriquez
NHCP, which has the mandate to discuss and resolve, with

finality, issues or conflicts on Philippine history under
Section 7 of RA 10086, opposes the interment · another
fact completely disregarded by the ponencia.
Verily, the interment of former President Marcos
constitutes a violation of the physical, historical and

cultural integrity of the LNMB as a national shrine,

which the State has the obligation to conserve.
AFP Regulations
Concededly, the LNMB is also a military grave site. The

Quartermaster General of the Armed Forces of the
Philippines („AFP‰) exercises overall supervision in the
implementation of the AFP Regulations concerning burials
at the LNMB, specifically, AFP Regulations 161-373 dated
April 9, 1986 and the subsequent regulations (AFP
Regulations G 161-374 dated March 27, 1998,133 and AFP
Regulations G 161-375 dated September 11, 2000134 [the
AFP Regulations] while the Graves Services Unit („GSU‰)
is charged with the registration of deceased/graves,
allocation of specific section/area, preparation of grave
sites, and supervision of burials at the LNMB.135
The fact that the LNMB is an active military grave site
or cemetery, however, does not diminish, and cannot be
used as an excuse to denigrate, its status as a national
shrine. The PDs discussed above are laws while the
presidential issuances have the force of law. They must be
observed in the use of the LNMB.
National Heroes Day is a regular holiday under Act No.
3827 intended for the Filipinos to reflect on the heroism of
our countrymen. This Court can take judicial notice of the
custom136 or tradition of the sitting President to celebrate
this national holiday by visiting the
_______________
133 Annex 6, Consolidated Comment.

134 Annex 7, id.
135 AFP Regulations G 161-375.
136 The Requisites of Custom are (1) a number of acts; (2) uniformity;
(3) juridical intent; (4) lapse of time; and not contrary to law. 1 Manresa
p. 76.
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Ocampo vs. Enriquez
LNMB, which, if accorded a most reasonable

interpretation, can be taken to mean that LNMB does
symbolize heroism, or that it is the place where the nationÊs
heroes lie. To argue, therefore, that the word „bayani‰ in
the LNMB is a misnomer, and that no symbolism of
heroism should be attached thereto or to those that lie
therein as heroes, is, at the very least, contrary to well-
established custom.
And this is precisely how the provisions in the AFP
Regulations regarding those who are not qualified to be
interred in the LNMB should be construed · as an
acknowledgment that it is a national shrine, and must be
treated as a „sacred and hallowed‰ resting place. Surely, if
„personnel who were dishonorably
separated/reverted/discharged from service‰ are to be
interred in the LNMB, then LNMB, being a „sacred and
hallowed place,‰137 would be desecrated. In the same vein,
if „authorized personnel who were convicted by final
judgment of an offense involving moral turpitude‰138 are
to be interred in the LNMB, then the status of LNMB as a
national shrine would be tarnished. Without these
disqualifications, the sacredness and hallowedness of the
LNMB would be hollow and meaningless.
In other words, it would be, as it is, error, to view or
understand the AFP Regulations in a vacuum, independent
of or apart from, the policy expressed in Proclamation No.
86 which renamed the Republic Memorial Cemetery as
„Libingan ng mga Bayani‰ (Cemetery of the Heroes)139
and established therein the standards of „ESTEEM and
REVERENCE,‰ Proclamation No. 208 which constituted
LNMB as a national shrine, PD 105 which specifically
provides the specific policy that all national shrines shall
be sacred and hallowed places, RA 10086 that characterizes
LNMB as a „national historic shrine‰ or a historical site or
structure hallowed and revered for its history or
association.
These laws and presidential proclamations that have the
force of law should be read into, and considered part of, the
AFP Regulations.

_______________
137 AFP Regulations G 161-374; AFP Regulations G 161-375.

Emphasis supplied.
138 Id.; id. Emphasis supplied.
139 <http://corregidorisland.com/bayani/libingan.html.>
664

Ocampo vs. Enriquez
Basic is the principle in statutory construction that

interpreting and harmonizing laws is the best method of
interpretation in order to form a uniform, complete,
coherent, and intelligible system of jurisprudence, in
accordance with the legal maxim interpretare et concordare
leges legibus est optimus interpretandi modus.140
Thus, the disqualifications contemplated under the AFP
Regulations should be construed under the aegis of the
foregoing laws and executive issuances and their
interpretation should not be narrowed by the language
used therein. Accordingly, I fully agree with Justice
CarpioÊs position that when Marcos was forcibly taken out
of office and removed as a President and a Commander-in-
Chief by the sovereign act of the people expressed in the
EDSA Revolution · which is an act higher than an act of a
military tribunal or of a civilian administrative tribunal ·
then it can reasonably be said that he was dishonorably
separated as a President and dishonorably discharged as a
Commander-in-Chief. During the oral arguments, Justice
Carpio further clarified that a military personnel, who is a
Medal of Valor awardee, retires from the military, joins the
government, and while in government, he is dishonorably
separated for an offense, then upon his death, he should
not be qualified to be interred in the LNMB pursuant to
the AFP Regulations themselves because LNMB, being a
sacred and hallowed ground, would be besmirched.141
In the same manner, the disqualification of those who

have been convicted by final judgment of an offense

involving moral turpitude should be understood in its
normal and ordinary acceptation. In his concurring opinion
in Teves v. COMELEC,142 Justice Brion cites the BlackÊs
Law Dictionary definition of moral turpitude as an „act of
baseness, vileness, or the depravity in private and social
duties which man owes to his fellowman, or to society in
general,‰ and BouvierÊs Law Dictionary as including
„everything which is done contrary to justice, honesty,
modesty, or good morals.‰ Citing In re Basa143 and Zari v.
Flores,144 Justice
_______________
140 Pabillo v. Commission on Elections En Banc, G.R. Nos. 216098 &

216562, April 21, 2015, 756 SCRA 606, 672.
141 TSN, August 31, 2016, p. 55.
142 604 Phil. 717, 735-742; 587 SCRA 1, 10 (2009).
143 41 Phil. 275 (1920).
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Brion lists, among others, estafa, theft, murder, whether

frustrated or attempted, attempted bribery, robbery, direct
bribery, embezzlement, extortion, frustrated homicide,
falsification of document, fabrication of evidence, evasion of
income tax, and rape as crimes involving moral turpitude.
The commission by a person of any such crimes when
proven should surely disqualify him from being buried in
the LNMB as it would blacken the sacredness and
hallowedness of the LNMB.
In Republic v. Sandiganbayan,145 a certiorari petition
filed by the Republic of the Philippines (Republic) against
the Sandiganbayan, former President Marcos, represented
by his heirs: Imelda R. Marcos, Maria Imelda [Imee]
Marcos-Manotoc, Ferdinand R. Marcos, Jr. and Irene

Marcos-Araneta, and Imelda Romualdez Marcos, which

sought to reinstate the SandiganbayanÊs earlier decision
dated September 19, 2000 that forfeited in favor of the
Republic Swiss bank accounts in the aggregate amount of
US$658,175,373.60 as of January 31, 2002, claimed by the
Marcoses as theirs and held in escrow in the Philippine
National Bank (PNB), this Court made this factual finding
and ruling:
In the face of undeniable circumstances and the avalanche

of documentary evidence against them, respondent
Marcoses failed to justify the lawful nature of their
acquisition of the said assets. Hence, the Swiss deposits should
be considered ill-gotten wealth and forfeited in favor of the State
in accordance with Section 6 of RA 1379[.]146 (Emphasis and
underscoring supplied)
In Marcos, Jr. v. Republic,147 this Court ruled that all

the assets, properties and funds of Arelma, S.A., an entity
created by former President Marcos, with an estimated
aggregate amount of US$3,369,975.00 as of 1983, which the
Marcos claimed as theirs, were declared ill-gotten wealth
and forfeited in favor of the Republic.
This Court, in Republic v. Sandiganbayan and Marcos,
Jr. v. Republic, noted with approval the Solicitor GeneralÊs
evidence, culled from the
_______________
144 Adm. No. (2170-MC) P-1356, November 21, 1979, 94 SCRA 317.
145 453 Phil. 1059; 406 SCRA 190 (2003).
146 Id., at p. 1149; pp. 273-274.
147 686 Phil. 980; 671 SCRA 280 (2012).
666

Ocampo vs. Enriquez

Income Tax Returns (ITRs) and Balance Sheets filed by the

Marcoses, that showed their total income from 1965 to
1984 in the amount of P16,408,442.00, with 67.71% thereof
or P11,109,836.00 allegedly coming from the legal practice
of the former President as compared to the official salaries
of former President Marcos and Imelda R. Marcos of
P2,627,581.00 or 16.01% of the total, and the Solicitor
GeneralÊs findings that:
x x x FM [Ferdinand Marcos] made it appear that he had an

extremely profitable legal practice before he became a President
(FM being barred by law from practicing his law profession during
his entire presidency) and that, incredibly, he was still receiving
payments almost 20 years after. The only problem is that in his
Balance sheet attached to his 1965 ITR immediately
preceding his ascendancy to the presidency he did not show
any Receivables from client at all, much less the P10.65M
that he decided to later recognize as income. There are no
documents showing any withholding tax certificates.
Likewise, there is nothing on record that will show any
known Marcos client as he has no known law office. As
previously stated, his networth was a mere P120,000.00 in
December, 1965. The joint income tax returns of FM and Imelda
cannot, therefore, conceal the skeletons of their
148
KLEPTOCRACY. (All caps and its emphasis supplied)
This Court also observed the very thorough presentation

of the Solicitor GeneralÊs evidence, viz.:
The following presentation very clearly and overwhelmingly

show in detail how both respondents clandestinely stashed away
the countryÊs wealth to Switzerland and hid the same under layers
upon layers of foundations and other corporate entities to prevent
its detection. Through their dummies/nominees, fronts or agents
who formed those foundations or corporate entities, they opened
and maintained numerous bank accounts. x x x149
_______________
148 Republic v. Sandiganbayan, supra note 145 at p. 1091; p. 223;

Marcos, Jr. v. Republic, id., at pp. 1003-1004; pp. 300-301.
149 Id., at p. 1093; p. 224.

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Ocampo vs. Enriquez
Marcos v. Manglapus150 recognized the plunder of the

economy attributed to the Marcoses and their cronies and
relied thereon as basis to bar the return of the remains of
former President Marcos to the country, viz.:
We cannot also lose sight of the fact that the country is only now
beginning to recover from the hardships brought about by tbe
plunder of the economy attributed to the Marcoses and their
close associates and relatives, many of whom are still here in
the Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in
its efforts to recover the enormous wealth stashed away by
the Marcoses in foreign jurisdictions. Then, We cannot ignore
the continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which stifles
and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is
easily within the ambit of judicial notice. (Emphasis and
underscoring supplied)
In PCCG v. Peña,151 this Court recalled the economic

havoc engendered by the Marcos regime through the
plunder of the countryÊs wealth, viz.:
x x x Given the magnitude of the [Marcos] regimeÊs „organized

pillage‰ and the ingenuity of the plunderers and pillagers with the
assistance of the experts and best legal minds available in the
market, it is a matter of sheer necessity to restrict access to the
lower courts, which would have tied into knots and made impossible
the CommissionÊs gigantic task of recovering the plundered wealth
of the nation, whom the past regime in the process had saddled and
laid prostrate with a huge $27 billion foreign debt that has since

ballooned to $28.5 billion.
Indeed, as correctly pointed out by petitioner Latiph,

this Court has referred to former President Marcos as a
dictator in 20 cases and his rule was characterized as
authoritarian in 18 cases.
_______________
150 Marcos v. Manglapus, supra note 4 at p. 509; p. 698.

151 243 Phil. 93, 107; 159 SCRA 556, 566 (1988).
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That is not all. Section 2 of RA 10368 is a recognition by

legislative fiat that „summary execution, torture, enforced
or involuntary disappearance and other gross human rights
violations [were] committed during the regime of former
President Ferdinand E. Marcos covering from September
21, 1972 to February 25, 1986.‰
In two United States cases, the United States District
Court of Hawaii152 awarded US$1.2 Billion in exemplary
damages and over US$770 Million in compensatory
damages to 10,059 plaintiffs for acts of torture, summary
execution, disappearance, arbitrary detention and
numerous other atrocities, which the jury found former
President Marcos personally liable for, and the US 9th
Circuit Court of Appeals,153 applying the „command
responsibility‰ principle, ruled that the district court
properly held former President Marcos liable for human
rights abuses which occurred and which he knew about and
failed to use his power to prevent.
The NHCP, in its study, „Why Ferdinand Marcos should
not be buried at the Libingan ng mga Bayani,‰ which it
undertook as part of its mandate to conduct and

disseminate historical research and resolve historical

controversies, has concluded, among others, that former
President Marcos had lied about receiving U.S. medals and
that certain actions committed by him as a soldier
amounted to „usurpation‰ and could be characterized as
„illegal‰ and „malicious criminal act.‰ Significantly, the
NHCP opposes the proposed burial of former President
Marcos.154
In the Memorandum filed by petitioners Rosales, et al.,
they question the basis of the Solicitor GeneralÊs claim that
former President Marcos was a Medal of Valor Awardee.
Based on a copy of General Order No. 167 dated October
16, 1958 („GO 167‰), which is Annex „A‰ to the Rosales
Memorandum, former President Marcos obtained not a
Medal of Valor but a Medal for Valor. A reading of the
contents of GO 167 re-
_______________
152 In Re Estate of Marcos Human Rights Litigation, 910 F. Supp.

1460 (D. Haw. 1995).
153 Hilao v. Marcos, 103 F.3rd 762 (9th Cir. 1996).
154 The NHCP is the independent government entity that has the
mandate to resolve, with finality, issues or conflicts on Philippine history.
669
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veals that the account of the purported MarcosÊ bravery

therein had been debunked in the aforementioned study of
the NHCP. There is thus reliable basis to seriously doubt
the authenticity of the Medal of Valor award of former
President Marcos. As the NHCP concluded:
Mr. MarcosÊs military record is fraught with myths, factual

inconsistencies, and lies. The rule in history is that when a claim is
disproven · such as Mr. MarcosÊs claims about his medals, rank,

and guerilla unit · it is simply dismissed. When, moreover, a

historical matter is under question or grave doubt, as expressed in
the military records about MarcosÊs actions and character as a
soldier, the matter may not be established or taken as fact. A
doubtful record also does not serve as sound, unassailable basis of
historical recognition of any sort, let alone burial in a site intended,
as its name suggests, for heroes.
This CourtÊs and the United States courtsÊ

pronouncements, the provisions of RA 10368, coupled with
the observations of the NHCP, on the perniciousness,
gravity and depravity of the acts (e.g., plunder, falsification,
human rights abuse, dictatorship, authoritarianism) that
former President Marcos perpetrated and allowed to be
perpetrated are sufficient to qualify them as acts involving
moral turpitude, justifying the application of the provision
on disqualification in the AFP Regulations. The
overwhelming import of all these simply cannot be cast
aside as irrelevant just because former President Marcos
was not convicted of such crimes by a criminal court.
Certainly, this Court cannot close its eyes to these
established facts from which it can be legitimately
concluded that former President Marcos was guilty of
crimes involving moral turpitude, and would have been
convicted thereof were it not for his flight and his
subsequent death. Unfortunately, the ponencia is content to
brush aside these determinations on the ground that
without a conviction these do not amount to a
disqualification provided in the AFP Regulations.
Just as the LNMB should be looked at as one integral
whole, as one and indivisible national shrine, despite the
presence of a military grave site within its confines, former
President Marcos should be viewed and judged in his
totality. His soldier persona cannot be separated from his
private citizen cum former President persona, and vice
versa, unless by
670

Ocampo vs. Enriquez
some miracle one can be excised from the other. Either the
entire remains of former President Marcos are allowed to
be buried in the LNMB or none of his parts. Whether as a
soldier or as a President, former President Marcos does not
deserve a resting place together with the heroes at the
LNMB.
In the end, the argument that burying former President
Marcos in the LNMB does not make him a hero disregards
the status of the LNMB as a national shrine. And, even if
the standards set forth in the AFP Regulations were to be
followed, former President Marcos would still be
disqualified to be interred in the LNMB.
Thus, recalling the earlier discussion on the second
requirement of the PresidentÊs power to reserve, it is now
clear that the interment violates the specific public
purpose, i.e., national shrine purposes/policies, for which
the LNMB was reserved.
To recapitulate, the order to inter former President
Marcos in the LNMB is clearly contrary to law (PD 105, RA
10066, RA 10086, and the presidential issuances above
mentioned), the AFP Regulations, and the public policy
that the said laws, executive issuances, and regulations
espouse and advance. In light of the foregoing violations, it
is also clear that the interment cannot be justified by the
exercise of the PresidentÊs power of control and duty to
faithfully execute laws.
The 1987 Constitution
The ponencia disposes of petitionersÊ invocation of the

provisions of Article II of the Constitution by holding that
these are not self-executing, citing Tañada v. Angara.
However, it fails to recognize at the same time that, since
then, several laws have been passed that „enabled‰ Article
II, Section 11, among which are RA 10353155 and RA 10368.
In this respect, the applicability of these laws, especially
RA 10368, as basis to oppose the proposed interment will
be addressed below.

_______________
155 „ANTI-ENFORCED OR INVOLUNTARY DISAPPEARANCE ACT OF 2012.‰
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The applicable treaties and

international law principles
stand to be violated with the
burial of former President
Marcos in the LNMB.
Article II, Section 2 of the 1987 Constitution provides

that the Philippines „adopts the generally accepted
principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.‰ One of
these principles · as recognized by this Court in a long
line of decisions156 · is the rule of pacta sunt servanda
in Article 26157 of the 1969 Vienna Convention on the Law
of Treaties158 („VCLT‰), or the performance in good faith of
a StateÊs treaty obligations. Borrowing the words of this
Court in Agustin v. Edu,159 „[i]t is not for this country to
repudiate a commitment to which it had pledged its word.
The concept of pacta sunt
_______________
156 Government of Hong Kong Special Administrative Region v.

Muñoz, G.R. No. 207342, August 16, 2016, 800 SCRA 467; Commissioner
of Internal Revenue v. Pilipinas Shell Petroleum Corporation, 727 Phil.
506; 736 SCRA 623 (2014); Bayan (Bagong Alyansang Makabayan) v.
Zamora, 396 Phil. 623; 342 SCRA 449 (2000); Magallona v. Ermita, G.R.
No. 187167, August 16, 2011, 655 SCRA 476; Bayan Muna v. Romulo,
656 Phil. 246; 641 SCRA 244 (2011); CBK Power Company Limited v.
Commissioner of Internal Revenue, G.R. Nos. 193383-84 & 193407-08,

January 14, 2015, 746 SCRA 93; Abaya v. Ebdane, Jr., 544 Phil. 645; 515
SCRA 720 (2007); Department of Budget and Management Procurement
Service v. Kolonwel Trading, 551 Phil. 1030; 524 SCRA 591 (2007);
Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue,
716 Phil. 676; 704 SCRA 216 (2013); Secretary of Justice v. Lantion, 379
Phil. 165; 322 SCRA 160 (2000); La Chemise Lacoste, S.A. v. Fernandez,
214 Phil. 332; 129 SCRA 373 (1984); Tañada v. Angara, 338 Phil. 546,
592; 272 SCRA 18, 66 (1997); Pharmaceutical and Health Care
Association of the Philippines v. Duque III, 561 Phil. 386; 535 SCRA 265
(2007).
157 „Every treaty in force is binding upon the parties to it and must
be performed by them in good faith.‰
158 1155 U.N.T.S. 331, 8 I.L.M. 679, opened for signature May 23,
1969, entered into force Jan. 27, 1980.
159 No. L-49112, February 2, 1979, 88 SCRA 195.
672

Ocampo vs. Enriquez
servanda stands in the way of such an attitude, which is,

moreover, at war with the principle of international
morality.‰160
The Philippines became signatory to the Universal
Declaration on Human Rights („UDHR‰),161 and State-
party, without reservations, to the International
Covenant on Civil and Political Rights („ICCPR‰)162 on
October 23, 1966, the Rome Statute163 on August 30, 2011,
and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment („CAT‰)
on June 18, 1986.164
The UDHR is an international document recognizing
inalienable human rights, which eventually led to the
creation of several legally-binding treaties, such as the
ICCPR and International Covenant on Economic, Social
and Cultural Rights („ICESCR‰).165 The Philippines signed
the UDHR because of its recognition of the rights and
values enumerated in the UDHR, and it is that same

recognition that led the Philippines to sign and ratify both

the ICCPR and the ICESCR.166
_______________
160 Id.
161 Adopted by the United Nations General Assembly on December
10, 1948; see Poe-Llamanzares v. Commission on Elections, G.R. Nos.
221697 & 221698-700, March 8, 2016, 786 SCRA 1. (Dissenting Opinion)
162 999 UNTS 171 and 1057 UNTS 407 / (1980) ATS 23 / 6 ILM 368
(1967); the Philippines signed the ICCPR on December 19, 1966 and
ratified the same on October 23, 1986.
163 A/CONF.183/9 of 17 July 1998.
164 The Philippines ratified the CAT on June 26, 1987.
165 The Philippines signed the ICESCR on December 19, 1966 and
ratified the same on June 7, 1974; see: J. von Bernstorff, „The Changing
Fortunes of the Universal Declaration of Human Rights: Genesis and
Symbolic Dimensions of the Turn to Rights in International Law‰ 19 (5)
European Journal of International Law 903, 913-914 (2008), cited in Poe-
Llamanzares v. Commission on Elections, supra.
166 See: Secretary of National Defense v. Manalo, 589 Phil. 1, 50-51;
568 SCRA 1, 54 (2008) and Separate Opinion of CJ. Puno in Republic v.
Sandiganbayan, in Poe-Llamanzares v. Commission on Elections, id.
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Article VII, Section 21167 and Article II, Section 2 of the

Constitution168 adopt the doctrine of transformation.
Treaties, which have been duly entered and ratified
pursuant to the Constitution, must be transformed into
municipal law so that they can be applied to domestic
conflicts.169 Once so transformed, treaty obligations enjoy
the same legal force and effect as domestic statutes.170
The CAT was transformed by virtue of Republic Act
9745 or the „Anti-Torture Act of 2009.‰171 Subsequently,
echoing its commitment to the UDHR, the Philippines

transformed its obligations under the ICCPR and the CAT,

on July 23, 2012, with the enactment of Republic Act No.
10368. The enactment of RA 10368 is, in truth, in
fulfillment of the countryÊs duty under Article 2(2) of the
ICCPR to „take the necessary steps, in accordance with its
constitutional processes and with the provisions of the
present Covenant, to adopt such laws or other measures as
may be necessary to give effect to the rights recognized in
the present Covenant.‰
Section 2 of RA 10368, echoing the StateÊs policy
enshrined in Article II, Section 11 of the Constitution on
the value of the dignity of every human person and the
guarantee of full respect for human rights, is an
acknowledgment of the PhilippinesÊ obligations as State-
party to the UDHR, ICCPR, and the CAT.
_______________
167 Art. VII, Sec. 21. „No treaty or international agreement shall be

valid and effective unless concurred in by at least two-thirds of all the
members of the Senate.‰
168 Art. II, Sec. 2. „The Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy
of peace, equality, justice, freedom, cooperation, and amity with all
nations.‰
169 Pharmaceutical and Health Care Association of the Philippines v.
Duque III, supra note 156; Commissioner of Customs v. Eastern Sea
Trading, No. L-14279, October 31, 1961, 3 SCRA 351, 356, cited in
Intellectual Property Association of the Philippines v. Ochoa, G.R. No.
204605, July 19, 2016, 797 SCRA 134.
170 Secretary of Justice v. Lantion, supra note 156.
171 AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND
DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING PENALTIES THEREFOR,

November 10, 2009.
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Ocampo vs. Enriquez
Particularly, in enacting RA 10368, the Philippines

categorically recognized its obligation to: (1) „give effect to
the rights recognized [in the UDHR, ICCPR and the
CAT]‰172 (2) ensure that any person whose rights or
freedoms have been violated shall have an effective remedy,
even if the violation is committed by persons acting in an
official capacity; (3) „recognize the 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 February 25, 1986‰; and
(4) „restore the victimsÊ honor and dignity.‰
More importantly, the Philippines acknowledged,
through RA 10368, its „moral and legal obligation to
recognize and/or provide reparation to said victims and/or
their families for the deaths, injuries, sufferings,
regime‰ and to „acknowledge the sufferings and damages
inflicted upon persons whose properties or businesses were
forcibly taken over, sequestered or used, or those whose
professions were damaged and/or impaired, or those whose
freedom of movement was restricted, and/or such other
victims of the violations of the Bill of Rights.‰173
The obligations listed in Section 2 of RA 10368 are not
to be read in a vacuum. Neither should they be read as
bounded by the four corners of that law.
_______________
172 R.A. No. 10368, Sec. 2. „x x x By virtue of Section 2 of Article II

of the Constitution adopting generally accepted principles of
international law as part of the law of the land, the Philippines adheres
to international human rights laws and conventions, the Universal
Declaration of Human Rights, including the International Covenant on
Civil and Political Rights (ICCPR) and the Convention Against Torture
(CAT) and Other Cruel, Inhuman or Degrading Treatment or
Punishment which imposes on each State party the obligation to enact
domestic legislation to give effect to the rights recognized therein and to
ensure that any person whose rights or freedoms have been violated

shall have an effective remedy, even if the violation is committed by

persons acting in an official capacity. x x x‰
173 Id.
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Considering that the enactment of RA 10368 was

precisely to „give effect‰174 to the rights of human rights
victims recognized in the ICCPR and the CAT, which the
Philippines ratified without reservations,175
_______________
174 Id. „x x x By virtue of Section 2 of Article II of the Constitution

adopting generally accepted principles of international law as part of the
law of the land, the Philippines adheres to international human rights
laws and conventions, the Universal Declaration of Human Rights,
including the International Covenant on Civil and Political Rights
(ICCPR) and the Convention Against Torture (CAT) and Other Cruel,
Inhuman or Degrading Treatment or Punishment which imposes on each
State party the obligation to enact domestic legislation to give effect to
the rights recognized therein and to ensure that any person whose rights
or freedoms have been violated shall have an effective remedy, even if the
violation is committed by persons acting in an official capacity. In fact,
the right to a remedy is itself guaranteed under existing human rights
character (jus cogens) and as such has been recognized as non-derogable.
Consistent with the foregoing, it is hereby declared the policy of the
State to recognize the 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 February 25, 1986 and restore the
victimsÊ 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. x x x‰

175 On May 23, 1969 · the very same day the Convention was
opened for signature · the Philippines signed the 1969 Vienna
Convention on the Law of Treaties („VCLT‰) (1155 U.N.T.S. 331, 8 I.L.M
679, opened for signature May 23, 1969, entered into force Jan. 27, 1980)
and ratified the same on November 15, 1972. Enshrined in Article 26 of
the VCLT is the principle of pacta sunt servanda, which requires that
„[e]very treaty in force is binding upon the parties to it and must be
performed by them in good faith.‰ (1969 VCLT 1155 U.N.T.S. 331, 8 I.L.M
679, Art. 26)
Further, pursuant to the principle of pacta tertiis nec nocent nec
prosunt (1969 VCLT, Art. 34. „A treaty does not create either obligations
or rights for a third State without its consent‰; see in Brownlie, Principles
of Public International Law, p. 598, 6th ed., 2003) under Article 34 of the
VCLT, treaties bind only States parties to it. (id.) Consequently, in cases
where a State does not want certain provisions of a treaty to apply to it,
such exception must be expressed by
676

Ocampo vs. Enriquez
then RA 10368 must be understood and interpreted within

the broader context of the treaties which it effectuates.
Consistent with this, I concur with the Chief JusticeÊs
discussion on the proper interpretation of the rights of
HRVVs and the corollary state obligations under RA 10368.
It is very significant to note that RA 10368, Section 2
which provides: „x x x the Universal Declaration of Human
Rights, including the International Covenant on Civil and
Political Rights (ICCPR) and the Convention Against
Torture (CAT) and Other Cruel, Inhuman or Degrading
Treatment or Punishment which imposes on each State
party the obligation to enact domestic legislation to give
effect to the rights recognized therein and to ensure that
any person whose rights or freedoms have been violated
shall have an effective remedy, even if the violation is
committed by persons acting in an official capacity‰ is an

almost verbatim reproduction of Article 2(3) of the

ICCPR,176 which provides:

acting in an official capacity x x x.
_______________
the State by means of a reservation, done at the time the State ratifies
the treaty. (Art. 2[1][d], 1969 VCLT)
A reservation is a unilateral statement made by a State whereby the
State „purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that State.‰ (Art. 2[1][d],
1969 VCLT) In addition, the reservation must be made „when signing,
ratifying, accepting, approving, or acceding to a treaty.‰ (Id.) In effect, a
reservation removes the obligation referred to by the State from its legal
obligations arising from that treaty. (Rhona K.M. Smith, Texts and
Materials on International Human Rights, p. 67 [2013]) No such
reservations have been made by the Philippines when it to the ICCPR,
the Rome Statute, and the CAT.
176 Sec. 2.
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In addition, in interpreting the StateÊs obligations

relative to human rights violations, Article 38(1)(d)177 of
the Statute of the International Court of Justice („ICJ
Statute‰)178 specifically recognizes „judicial decisions and
the teachings of the most highly qualified publicists
(„MHQPs‰) of the various nations, as subsidiary means for
the determination of rules of law.‰ In this regard, it is
significant to note that as original member of the United

Nations („UN‰), the Philippines is ipso facto State-party to

the ICJ Statute in accordance with Article 93, Chapter XIV
of the UN Charter.179 In other words, the Court can rely on
what are called subsidiary sources of international law
such as judicial decisions and teachings of MHQPs.
Finally, decisions of various tribunals180 authorize the
use of the text of the relevant convention as an aid to
interpretation even if the statute does not incorporate the
convention or even refer to it.
Given the foregoing, which are the parameters that are
considered in understanding and interpreting RA 10368,
the question before the Court is how to determine whether
petitioners, who claim to be victims of human rights
violations under the Marcos martial law regime,181 can
rightfully be considered HRVVs.
In an attempt to strip MLHRV petitioners of their
characterization as HRVVs and to dilute their rights as
such, the Solicitor General argues that the lack of specific
mention of „state agents‰ in Sec. 3 of RA 10368 means that
former President Marcos could not be held liable as Com-
_______________
177 Art. 38(1)(d). „[S]ubject to the provisions of Article 59, judicial

decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of
law.‰
178 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 AJIL Supp. 215 (1945).
179 Article 93(1). All Members of the United Nations are ipso facto
parties to the Statute of the International Court of Justice.
180 Brownlie, Ian, Principles of Public International Law, p. 45 (6th
ed., 2003), citing Salomon v. Commissioners of Customs and Excise
[1967], 2 QB 116, CA, at 141 (per Lord Denning, MR), 143 (per Diplock,
LJ); ILR 41; Post Office v. Estuary Radio [1967] 1 WLR 1396, CA at 1404;
[1968] 2 QB 740 at 757; Cococraft Ltd. v. Pan American Airways Inc.
[1969] 1 QB 616; [1968] 3 WLR 1273, CA at 1281.
181 Hereinafter referred to as „MLHRV.‰
678


Ocampo vs. Enriquez
mander-in-Chief for human rights abuses suffered by

them.182 This argument, however, fails to consider the 2001
Articles on Responsibility of States for Internationally
Wrongful Acts or the Articles on State Responsibility
(„ASR‰).183
Contrary to the Solicitor GeneralÊs claims, the absence of
the words „state agents‰ in RA 10368 does not, by itself,
remove the basis for holding former President Marcos
liable as Commander-in-Chief of the armed forces for the
crimes committed during his martial law regime. To begin
with, the principle of „state agents‰ would only be relevant
for purposes of attributing responsibility to a State, as
reflected in Article 4 of the ASR, viz.:
Article 4. Conduct of organs of a State.·
1. The conduct of any State organ shall be considered an act of

that State under international law, whether the organ exercises
legislative, executive, judicial or any other functions, whatever
position it holds in the organization of the State, and whatever its
character as an organ of the central Government or of a territorial
unit of the State.
2. An organ includes any person or entity which has that status in
accordance with the internal law of the State.
In these petitions, responsibility for the human rights

violations committed during the martial law regime is
anchored not on the attribution to the State through state
agents, but on attribution to former President Marcos, as
an individual and Commander-in-Chief.
It is also incorrect to argue that the application of
„command responsibility‰ to former President Marcos
would violate the constitutional prohibition on bills of
attainder and ex post facto laws.184
_______________

182 OSG Memorandum, par. 245, p. 93.

183 53 UN GAOR Supp. (No. 10) at 43, U.N. Doc. A/56/83 (2001).
679
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Ocampo vs. Enriquez
In Hilao v. Estate of Ferdinand Marcos,185 the

„command responsibility‰ principle was applied to hold
former President Marcos liable for human rights abuses
during his martial law regime, which occurred and which
he knew about and failed to use his power to prevent. In In
Re: Estate of Marcos,186 it was ruled that the estate of
former President Marcos was not immune even if the acts
of torture, execution, and disappearance were clearly acts
outside of his authority as President and were not taken
within any official mandate.
While the foregoing cases were decided by United States
of America courts, the rulings therein are binding in this
jurisdiction by virtue of the act of state doctrine. The act of
state doctrine is the „recognition by a country of the legal
and physical consequences of all acts of state in other
countries,‰187 and „a recognition of the effects of
sovereignty, the attributes and prerogatives of sovereign
power.‰188 In Presidential Commission on Good Government
v. Sandiganbayan and Officeco Holdings N.V.,189 this Court
had occasion to rule that the act of state doctrine prohibits
States from sitting in judgment on the acts of the
government of another State done within its territory.190 It
requires the forum court to exercise restraint in the
adjudication of disputes by foreign courts performed within
its jurisdiction.191
_______________
185 Maximo HILAO, Class Plaintiffs, Plaintiff-Appellee, v. Estate of

Ferdinand Marcos, Defendant-Appellant, No. 95-15779, December 17,

1996.
186 In re: Estate of Ferdinand Marcos, 25 F.3d at p. 1472 (9th Cir.
1994).
187 Berstein v. Van Heyden Fieres SocieteÊ Anonyme, 163 F.2d 246, 249
(2nd Cir. 1947) (L. Hand, J.), in Achebe, Ifeanyi, The Act of State Doctrine
and Foreign Sovereign Immunities Act of 1976: Can They Coexist?, 13
Md. J. IntÊl L. 247 (1989).
188 Achebe, id.
189 556 Phil. 664; 530 SCRA 13 (2007).
190 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923
(1964), citing Blad v. Bamfield, 3 Swans. 604, 36 Eng.Rep. 992; PCGG v.
Sandiganbayan and Officeco Holdings N.V., id., at p. 678; p. 26, citing
Evans, M.d. (Ed.), International Law (First Edition), Oxford University
Press, p. 357; Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed.
456 (1897).
191 PCGG v. Sandiganbayan and Officeco Holdings N.V., id., citing
Evans, id.
680

Ocampo vs. Enriquez
Simply put, convicting former President Marcos for

whatever past crimes he might have committed would not
only be legally untenable but also absurd; however, the
Court must recognize what has already been previously
and legally determined and settled.
In light of the foregoing, and given the fact that MLHRV
petitioners, who by their personal accounts (narrated
during the Oral Arguments held on August 31, 2016)192
and as alleged under oath in their respective petitions,
have suffered human rights violations during martial law,
there is no legal obstacle in recognizing them as HRVVs as
this is defined under RA 10368. As HRVVs, they have
several rights under international law, which the State has
the duty to protect.
As culled from the primary sources of international law
(the ICCPR and the CAT), and the subsidiary sources of

international law · namely, the United Nations 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 Guidelines‰) · as well as RA
10368, HRVVs are entitled to the following rights: (1) the
non-derogable right to an effective remedy; (2) the right
against re-traumatization; (3) the right to truth and the
StateÊs corollary duty to preserve memory; and (4) the right
to reparation.
1. The right to an effective remedy
Prescinding from the various laws that have been

enacted by the Philippine legislature to promote and
protect human rights193 and the availability of judicial
remedies,194 it must be clarified that the PhilippinesÊ
obligations do not cease by the mere enactment of laws or
the availability of judicial remedies. Article 2 of the ICCPR
provides:
Article 2(3). Each State Party to the present Covenant

undertakes:

recognized are violated shall have an effective remedy, notwith-
_______________
192 TSN, August 31, 2016, pp. 199-215.

194 Id.
681
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Ocampo vs. Enriquez
standing that the violation has been committed by persons acting in

an official capacity.
In turn, General Comment No. 31 to the ICCPR states

that the purpose of Article 2 will be defeated if there is no
concurrent obligation on the part of the State-party to take
measures to prevent a recurrence of a violation of the
ICCPR.195 In other words, when RA 10368 recognized the
obligation of the Philippines to provide an effective remedy
to HRVVs, this can only be understood as the Philippines
also having the concurrent obligation to prevent a
recurrence of the violation of the ICCPR.
This is not the first time this Court has been asked to
recognize the obligatory nature of the ICCPR and the
General Comments interpreting their provisions. In
Echegaray v. Secretary of Justice,196 the Court recognized
the binding nature of the ICCPR and relied on General
Comment 6 (to Article 6 of the ICCPR) to resolve the issues
raised by petitioner Echegaray with respect to the death
penalty allegedly violating the PhilippinesÊ international
obligations. In Razon, Jr. v. Tagitis197 the Court relied upon
the U.N. Human Rights CommitteeÊs („UNHRC‰)
interpretation of Article 2 of the ICCPR on the right to an
effective domestic remedy. According to the UNHRC, the
act of enforced disappearance violates Articles 6 (right to
life), 7 (prohibition on torture, cruel, inhuman or degrading
treatment or punishment) and 9 (right to liberty and
security of the person) of the ICCPR, and the act may also
amount to a crime against humanity.198
_______________
195 General Comment No. 31, par. 17, The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant,
CCPR/C/21/Rev.1/Add. 1326 May 2004. See par. 17, which states:
17. In general, the purposes of the Covenant would be defeated
without an obligation integral to Article 2 to take measures to prevent a
recurrence of a violation of the Covenant.
196 358 Phil. 410; 297 SCRA 754 (1998).
197 621 Phil. 536; 606 SCRA 598 (2009).
198 Id., at pp. 603-604; p. 676.

682

Ocampo vs. Enriquez
The obligation to provide effective remedy, and

concurrently, to prevent a recurrence, by its nature, is not
discharged by the mere passage of laws. This obligation, by
necessity, is a continuing one.
The right to be protected

2.
from re-traumatization
Petitioner Latiph claims that the burial of former

President Marcos in „a state funeral as a hero and
extending to him full military honors‰199 violates the
PhilippinesÊ obligations under the UN Guidelines.200 In
response, the Solicitor General merely stated that the
premise of these alleged violations is „flawed,‰201 in that
there is no causal relation between the PhilippinesÊ
compliance with its international law obligations and
former President Marcos burial at the LNMB.
First of all, the claim that the Philippines is not bound
by the UN Guidelines because they are merely „guidelines‰
and „not treaties‰202 or „sources of international law‰203 is
inaccurate. While it is true that a treaty only binds States
parties to it and generally does not create obligations for
States not parties to it pursuant to the principle of pacta
tertiis nec nocent nec prosunt,204 the rule does not operate
to preclude the application of the UN Guidelines to the
Philippines. This is because the UN Guidelines do not
create new international or domestic legal obligations, but
merely identify mechanisms, modalities, procedures and
methods for the implementation of existing legal
obligations under international human rights law.205
Quite the contrary, and as earlier adverted to,206 the UN
Guidelines constitute subsidiary sources of International
Law under Article 38(1)(d)

_______________
199 Latiph Petition, p. 22.

200 See also OSG Memorandum, par. 310, p. 110.
202 Id., par. 344, p. 119.
203 Id.
204 ICJ Statute, Art. 34.
205 Preamble to the Principles and Guidelines, par. 7.
206 ICJ Statute, supra.
683
VOL. 807, NOVEMBER 8, 2016 683

Ocampo vs. Enriquez
of the ICJ Statute. Principle 10 of the UN Guidelines,

pertaining to the treatment of victims, provides:
10. Victims should be treated with humanity and respect for their

dignity and human rights, and appropriate measures should be
taken to ensure their safety, physical and psychological well-being
and privacy, as well as those of their families. The State should
ensure that its domestic laws, to the extent possible, provide that a
victim who has suffered violence or trauma should benefit from
special consideration and care to avoid his or her re-
traumatization in the course of legal and administrative
procedures designed to provide justice and reparation.
Significantly, Principle 10 is mirrored by Article II,

Section 11 of the Constitution and Section 2 of RA 10368,
stating that the „State values the dignity of every human,
person and guarantees full respect for human rights.‰
Based on the narrations of the HRVV petitioners, it is
the intended interment that would reopen wounds and re-
traumatize them. In this regard, international law has
recognized that impunity must be considered as a
continued and ongoing form oftorture.207 To bury the
architect of martial law in the LNMB would be an act of
impunity.

The right to truth and the StatesÊ

3.
duty to preserve memory208
Under Principle 2 of the UN Principles on Impunity,209

the right to truth pertains to the right to know about past
events concerning the violations and about the
circumstances and reasons that led to the perpetration of
those crimes.
_______________
207 Sveass, Nora, Gross human rights violations and reparation

under international law: Approaching rehabilitation as a form of
reparation, European Journal of Psychotraumatology, Eur J
Psychotraumatol, p. 4, May 8, 2013.
208 Rosales Petition.
209 Subsidiary source of international law under Article 38(1)(d) of
the ICJ Statute, supra note 204.
684

Ocampo vs. Enriquez
The duty to preserve memory, in Principle 3 of the UN

Principles on Impunity, requires that peopleÊs knowledge of
the history of its oppression be part of its heritage and as
such, must be ensured by appropriate measures in
fulfilment of the StateÊs 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.
The burial of former President Marcos in the LNMB
which, as already explained, is not a mere cemetery but a
memorial for heroes, will certainly not further or advance

the PhilippinesÊ obligation to accord HRVVs their right to

truth and preserve memory. Indeed, such an act would blur
the real role of former President Marcos in the countryÊs
history and in the human rights abuses that the HRVVs
suffered under his martial law regime. This is the causal
connection between the proposed interment and the
violation of the HRVVÊs right to truth, and the PhilippinesÊ
duty to preserve memory.
4. The right to specific forms of

reparation for harm suffered
under Principles 19, 21, 22,
23 of the UN Guidelines
The Solicitor General claims that the „Philippines had

already taken legislative and other measures to give effect
to human rights, and provided not only adequate remedies
against human rights violations and procedures for the
investigation of these violations and for the prosecution of
the perpetrators thereof and the penalties therefor, but also
reparation to victims.‰210 He further claims that RA 10368
has no bearing on the powers of the President and his
subordinates under the Constitution and E.O. 292 and that
HRVVs can be very assured that the interment of the
remains of the former President Marcos at the Libingan
will neither prevent them from claiming any entitlements
to repa-
_______________
685
VOL. 807, NOVEMBER 8, 2016 685

Ocampo vs. Enriquez
rations under RA 10368 nor dilute their claims, moral or

legal, monetary or nonmonetary, thereunder.211

In other words, the Solicitor General is saying that the

existence of several laws212 and the judicial decisions
describing former President Marcos as a plunderer and
human rights violator already „restored the dignities and
reputation of the victims of the regime‰213 and constitute
sufficient reparation to the HRVVs.
I cannot agree. The UN Guidelines, as cited in the
CHRÊs Memorandum, and as explained by CHR Chairman
Chito Gascon during the Oral Arguments, provide five
general forms of reparation: (1) restitution, (2)
compensation, (3) rehabilitation, (4) satisfaction, and (5)
Restitution requires that the victim be restored to the
original situation before the gross violations of
international humanitarian law occurred.
Compensation is provided for any economically
assessable damage resulting from gross violations of
human rights. In this regard, Article 14 of the CAT
requires State-parties to ensure in its legal system that
„the victim of an act of torture obtains redress and has an
enforceable right to fair and adequate compensation,
including the means for as full [a] rehabilitation as
possible. In the event of the death of the victim as a result
of an act of torture, his dependents shall be entitled to
compensation.‰
Rehabilitation includes medical and psychological care
as well as legal and social services. There are a number of
definitions of rehabilitation.214 General Comment 3 to
Article 14 of the CAT suggests that reha-
_______________
211 Id., par. 238, p. 91.

212 R.A. No. 9851 or the „PHILIPPINE ACT ON CRIMES AGAINST
INTERNATIONAL HUMANITARIAN LAW, GENOCIDE, AND OTHER CRIMES AGAINST
HUMANITY‰; R.A. NO. 10353 OR THE „ANTI-ENFORCED OR INVOLUNTARY

DISAPPEARANCE ACT OF 2012‰; R.A. NO. 9201 OR THE „NATIONAL HUMAN
RIGHTS CONSCIOUSNESS WEEK ACT OF 2002‰ and R.A. No. 10368; id., par.
332, p. 116.
213 Rosales Petition, par. 8.7, pp. 63-64; id., par. 400, p. 136.
214 Redress, Rehabilitation as a form of reparation under

international law, 2009. Dec, retrieved April 5, 2011, from

<http://www.redress.org/smartweb/reports/reports>, in Sveass, supra
note 207.
686

Ocampo vs. Enriquez
bilitation „should be holistic and include medical and

psychological care as well as legal and social services.‰
Rehabilitation for victims should aim to restore, as far as
possible, their independence, physical, mental, social and
vocational ability; and full inclusion and participation in
society.215
Satisfaction includes, among others: (i) the
„verification of the facts and full and public disclosure of
the truth to assist the victim or prevent the occurrence of
further violations,‰ (ii) 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, (iii) a public apology, (iv) commemorations and
tributes to victims, and (v) the inclusion of an accurate
account of the violations that occurred in international
human rights law and international humanitarian law
training and in educational material at all levels.
Guarantees of non-repetition pertain to measures
that may be taken which will contribute to the prevention
of the reoccurrence of the human rights violations. This
includes „strengthening the independence of the judiciary.‰
Notably, the Human Rights Committee, in General
Comment No. 2 (1992) and General Comment No. 31
(2004)216 defined rehabilitation as a form of reparation. In
particular, General Comment No. 20 states that amnesties
are unacceptable, among other reasons, because they
would „deprive individuals of the right to an effective
remedy, including compensation and such full
rehabilitation as may be possible.‰
The arguments of the Solicitor General are thus belied,

and shown to be erroneous, by the breadth and

extensiveness of the above described forms of reparation.
To summarize, there is sufficient basis to rule that the
burial of former President Marcos in the LNMB will violate
certain international law principles and obligations, which
the Philippines has adopted and must abide by, and RA
10368 which transformed the principle and State policy
expressed in Article II, Section 11 of the Constitution which
states: „The
_______________
215 General Comment No. 3, Art. 14, CAT.

216 Human Rights Committee, General comments to the
international covenant on civil and political rights (ICCPR) 1992/2004.
687
VOL. 807, NOVEMBER 8, 2016 687

Ocampo vs. Enriquez
State values the dignity of every human person and

guarantees full respect for human rights.‰ In this sense,
therefore, a violation of RA 10368 is tantamount to a
violation of Article II, Section 11 of the Constitution.
Summation
For all the reasons stated, the directive to inter former

President Marcos in the LNMB constitutes grave abuse of
discretion amounting to lack or excess of jurisdiction for
being in violation of: (1) Presidential Proclamations 86 and
208, (2) PD 105, (3) RA 10066, (4) RA 10086, (5) AFP
Regulations G 161-375, and (6) RA 10368, which is
tantamount to a violation of Article II, Section 11 of the
Constitution.
When all is said and done, when the cortege led by
pallbearers has reached the plot in the LNMB dedicated to
the newest „hero‰ of the land and the coffin containing

what is claimed to be the remains of former President

Marcos has been finally buried in the ground or entombed
above ground, this DISSENT, along with the dissents of the
Chief Justice and Justices Carpio and Leonen, will be a
fitting eulogy to the slaying of the might of judicial power
envisioned in the 1987 Freedom Constitution by the
unbridled exercise of presidential prerogative using vox
populi as the convenient excuse.
Above all, this is a tribute to the fallen, desaparecidos,
tortured, abused, incarcerated and victimized so that the
dictator could perpetuate his martial rule, and to those who
fought to attain the freedom which led to the very
Constitution from which this Court derives the power to
make the decision that it reached today · that their
sacrifices, sufferings and struggles in the name of
democracy would be duly acknowledged and immortalized.
688

Ocampo vs. Enriquez
„For the survivor who chooses to testify, it is clear: his duty is to bear
witness for the dead and for the living. He has no right to deprive
future generations of a past that belongs to our collective memory. To
forget would be not only dangerous but offensive; to forget the dead
would be akin to killing them a second time.‰
- Elie Wiesel, Night217
For these reasons, I vote to grant the petitions.
Petitions dismissed, status quo ante order lifted.
Note.·Since every law is presumed valid, the

presumption of constitutionality can be overcome only by
the clearest showing that there was indeed an infraction of
the Constitution, and only when such a conclusion is
reached by the required majority may the Court pronounce,
in the discharge of the duty it cannot escape, that the

challenged act must be struck down. (Remman Enterprises,

Inc. vs. Professional Regulatory Board of Real Estate
Service, 715 SCRA 293 [2014])
··o0o··
_______________
217 Wiesel, E., Night, xv (2006 translation with preface to the new
translation); Eliezer „Elie‰ Wiesel (September 30, 1928-July 2, 2016) was
born in the town of Sighet, Transylvania. He was a teenager when he and
his family were taken from their home in 1944 to the Auschwitz
concentration camp, and then to Buchenwald. Night is the terrifying
record of his memories of the death of his family, the death of his own
innocence, and his despair as a deeply observant Jew confronting the
absolute evil of man.
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SUPREME COURT REPORTS ANNOTATED VOLUME 807 25/01/2019, 11)00 PM

G.R. No. 225973. November 8, 2016.*

SATURNINO C. OCAMPO, TRINIDAD H. REPUNO,

RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR.,

G.R. No. 225984. November 8, 2016.*

REP. EDCEL C. LAGMAN, in his personal and official

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Involuntary Disappearance (FIND); FAMILIES OF

224 SUPREME COURT REPORTS ANNOTATED

G.R. No. 226097. November 8, 2016.*

LORETTA ANN PARGAS-ROSALES, HILDA B.

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SECRETARY SALVADOR C. MEDIALDEA, DEFENSE

G.R. No. 226116. November 8, 2016.*

HEHERSON T. ALVAREZ, JOEL C. LAMANGAN,

G.R. No. 226117. November 8, 2016.*

ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN

VOL. 807, NOVEMBER 8, 2016 225

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DELFIN N. LORENZANA, AFP CHIEF OF STAFF

G.R. No. 226120. November 8, 2016.*

ALGAMAR A. LATIPH, petitioner, vs. SECRETARY

G.R. No. 226294. November 8, 2016.*

LEILA M. DE LIMA, in her capacity as SENATOR OF

Constitutional Law; Judicial Department; Judicial Review; It is

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requisites for judicial inquiry are present: (a) there must be an

226 SUPREME COURT REPORTS ANNOTATED

opportunity; and (d) the issue of constitutionality must be the

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Locus Standi; Locus standi requires that a party alleges such

Same; Petitioners, who filed their respective petitions for

VOL. 807, NOVEMBER 8, 2016 227

human rights violations victims, legislators, members of the

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machinery can still be made by giving the administrative officer

228 SUPREME COURT REPORTS ANNOTATED

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MarcosÊ interment at the LNMB as a „reparation‰ for the HRVVs,

VOL. 807, NOVEMBER 8, 2016 229

Same; Executive Department; Our nationÊs history will not be

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provision of the Constitution and does not require statutory

230 SUPREME COURT REPORTS ANNOTATED

tary personnel, a veteran, and a Medal of Valor awardee,

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VOL. 807, NOVEMBER 8, 2016 231

dates that a person shall not be held to answer for a criminal

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Same; Marcos was honorably discharged from military service.

SERENO, CJ., Dissenting Opinion:

Constitutional Law; Judicial Department; Judicial Review;

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232 SUPREME COURT REPORTS ANNOTATED

Duterte to allow the burial of Marcos at the LNMB contravenes

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pronouncements of the Court on this matter must be respected and

VOL. 807, NOVEMBER 8, 2016 233