EN BANC
G.R. No. 225973, November 08, 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. DELAFUENTE,* Petitioners, v. 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
REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL CAPACITIES AND AS A MEMBER OF CONGRESS AND AS THE HONORARY CHAIRPERSON OF THE FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCE (FIND); FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCE (FIND), REPRESENTED BY ITS COCHAIRPERSON, NILDA L. SEVILLA; REP. TEDDY BRAWNER BAGUILAT, JR.; REP. TOMASITO S. VILLARIN; REP. EDGAR R. ERICE; AND REP. EMMANUEL A. BILLONES, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA; DEFENSE SECRETARY DELFIN N. LORENZANA; AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA; AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ; AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS, Respondents.
G.R. No. 226097
LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F. SANTOSMARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR, MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUIE G. CRISMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE, AND ABDULMARI DE LEON IMAO, JR., Petitioners, v. 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
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, v. 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
ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, JUAN ANTONIO RAROGAL MAGALANG, Petitioners, v. SECRETARY OF NATIONAL DEFENSE DELFIN N. LORENZANA, AFP CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF THE PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA, Respondents.
G.R. No. 226120
ALGAMAR A. LATIPH, Petitioner, v. 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
LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE REPUBLIC AND AS TAXPAYER, Petitioner, v. 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, Respondent.
D E C I S I O N
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.
Subject: Interment of the late Former President Ferdinand Marcos at LNMBOn August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the following directives to the Philippine Army (PA) Commanding General:ChanRoblesVirtualawlibrary
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 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 President's 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.1chanroblesvirtuallawlibrary
SUBJECT: Funeral Honors and ServiceDissatisfied with the foregoing issuance, the following were filed by petitioners:
TO: Commanding General, Philippine Army
Headquarters, Philippine Army
Fort Bonifacio, Taguig City
Attn: Assistant Chief of Staff for RRA, G9
- 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:
chanRoblesvirtualLawlibrary [x] Vigil - Provide vigil
[x] Bugler/Drummer
[x] Firing Party
[x] Military Host/Pallbearers
[x] Escort and Transportation
[x] Arrival/Departure Honors- His remains lie in state at Ilocos Norte
- Interment will take place at the Libingan ng mga Bayani, Ft. Bonifacio, Taguig City. Date: TBAL.
- Provide all necessary military honors accorded for a President
- POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA2
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 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.
In the same light, we held in Basco vs. Pagcor that broad constitutional principles need legislative enactments to implement them x x x.
x x x
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."59chanroblesvirtuallawlibrary
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 x84chanroblesvirtuallawlibraryC. On International Human Rights Laws
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 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 country's human rights obligations, to wit:
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: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.158chanrobleslaw
chanRoblesvirtualLawlibraryUnder 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.)157chanroblesvirtuallawlibrary
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.There is a separate list of eligible with respect to the inurnment of cremated remains in the Columbarium,166 interment of cremated remains in the Unmarked Area,167 and group burial.168 As a national military cemetery, eligibility standards for interment, inurnment, or memorialization 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.170chanrobleslaw
(a) Primarily eligible persons. The following are primarily eligible persons for purposes of interment:
chanRoblesvirtualLawlibrary(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 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:
chanRoblesvirtualLawlibrary(i) Medal of Honor;163chanrobleslaw
(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:
chanRoblesvirtualLawlibrary(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
(v) Chief of Mission of a Category 4, 5, or post if the Department of State classified that post as a Category 4, 5, or 5+ post during the person's 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:
chanRoblesvirtualLawlibrary(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:
chanRoblesvirtualLawlibrary(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 child's 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:
chanRoblesvirtualLawlibrary(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 veteran's spouse waives any entitlement to interment in Arlington National Cemetery, where such entitlement might be based on the veteran's interment in Arlington National Cemetery. The Executive Director may set aside the spouse's 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.
XIII. Rights of othersTo 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 § 553.21.180chanrobleslaw
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.x x x PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED
Before a commission identifies perpetrators in its report, the individuals concerned shall be entitled to the following guarantees:
chanRoblesvirtualLawlibrary(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 commission's file.
Endnotes:
* Rene A.V. Saguisag, et al. filed a petition for certiorari-in-intervention.
** On official leave.
1 See Annex "A" of Petition for Prohibition of Lagman, et al., G.R. No. 225984.
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 CO-CHAIRPERSON, NILDA L. SEVILLA, REP. TEDDY BRAWNER BAGUILAT, JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP. EMMANUEL A. BILLONES.
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. CRlSMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE ond 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 othenvise known as The Magna Carta of Women.
18 G.R. No. 226294.
19Belgica, et al., v. Han. Exec. Sec. Ochoa, Jr., 721 Phil. 416, 518-519 (2013).
20Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 646 Phil. 452, 471 (2010).
21Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519, citing Province of North Cotabato, et al. v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), et al., 589 Phil. 387, 481 (2008).
22Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), et al., supra.
23Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 519-520.
24Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Acestral Domain (GRP), et al., supra note 21.
25cralawred Tañada v. Cuenco, 100 Phil. 1101 (1957); Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 526.
26Id.; id.
27 Black's Law Dictionary, 941 (1991 6th ed.).
28Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 527.
29Id. at 527, citing La Bugal-B'Laan, Inc. v. Sec. Ramos, 465 Phil. 860, 890 (2004).
30Belgica, et al. v. Hon. Exec. Sec. Ochoa, Jr., supra note 19, at 528.
31 Rene A.V. Saguisag, Sr. and Rene A.Q. Saguisag, Jr.
32Prof David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 762 (2006).
33Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000).
34Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994, 232 SCRA 110.
35The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015, 747 SCRA 1, 46.
36 258 Phil 479 (1989).
37 REP. TEDDY BRAWNER BAGUILAT JR., REP. TOMASITO S. VILLARIN, REP. EDGAR R. ERICE and REP. EMMANUEL A. BILLONES.
38BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 648 (2000).
39Biraogo v. The Philippine Truth Commission, 651 Phil. 374, 439 (2010).
40Maglalang v. Philippine Amusement and Gaming Corp., 723 Phil. 546, 556 (2013).
41Id.
42Id. at 557.
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 involved; and, (l) in quo warranto proceedings. (See Republic v. Lacap, 546 Phil. 87, 97-98 [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 respondents' 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 foundo be patent nullities, or the appeal was considered as clearly an inappropriate remedy." (See The Diocese of Bacolod v. Commission on Elections, supra note 35, at 45-49.
46Almario, et al. v. Executive Secretary, et al., 714 Phil. 127, 169 (2013).
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 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 proceeying is commenced as herein provided.
58 338 Phil. 546 (1997).
59Tañada v. Angara, supra, at 580-581. (Citations omitted). The case was cited in Tondo Medical Center Employees Ass'n v. Court of Appeals, 554 Phil. 609, 625-626 (2007); Bases Conversion and Development Authority v. COA, 599 Phil. 455, 465 (2009); and Representatives Espina, et al. v. Han. Zamora, Jr. (Executive Secretary), et al., 645 Phil. 269, 278-279 (2010). See also Manila Prince Hotel v. GSIS, 335 Phil. 82, 101-102 (1997).
60 Executive Order No. 292, s. 1987, Signed on July 25, 1987.
61Biraogo v. The Phil. Truth Commission of 2010, 651 Phil. 374, 451 (2010).
62Philippine Constitution Association v. Enriquez, G.R. No. 113105, 113174, 113766, and 113888, August 19, 1994, 235 SCRA 506, 552.
63Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426 & 212444, January 12, 2016.
64Almario, et al. v. Executive Secretary, et al., supra note 46, at 164, as cited in Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., supra note 63.
65Almario, et al. v. Executive Secretary, et al., supra note 46, at 164.
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.
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:
chanRoblesvirtualLawlibrary(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 cralawlawlibrary
(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).
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 co-sponsored 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. Osmena 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).
71Human 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 Soptomboc 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:
chanRoblesvirtualLawlibrary(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 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 Victims' 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 Sec. 5 of R.A. No. 10368.
76 Sec. 26 of R.A. No. 10368.
77Id.
78Id.
79 Sec. 27 of R.A. No. 10368.
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 Sec. 2, Rule VII, IRR of R.A. No. 10368.
83 Sec. 3, Rule VII, IRR of R.A. No. 10368.
84Remman Enterprises, Inc., et al. v. Professional Regulatory Board of Real Estate Service, et al., 726 Phil. 104, 118-119 (2014).
85Article 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:
chanRoblesvirtualLawlibrary(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.
86IX. 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.
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.
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 one's 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:
chanRoblesvirtualLawlibrary(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:
chanRoblesvirtualLawlibrary(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 victim's relatives, witnesses, or persons 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:
chanRoblesvirtualLawlibrary(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.
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 people's 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 State's duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
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).
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.
92VI. 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.
93 Originated from A.O. No. 101 dated Docember 13, 1988 and A.O. No. 29 dated January 27, 2002.
94 Sec. 4 of R.A. No. 10086.
95 Sec. 5 ofR.A. No. 10086.
96Id.
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.
100Id.
101Id.
102 See Sec. 4 (d) ofR.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. Brig. Gen. Espino, etc., et al., 138 Phil. 570, 589-591 (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.
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.
125 Proclamation No. 228 dated August 12, 1993.
126 Proclamation No. 425 dated July 13, 1994.
127 R.A. No. 10796.
128http://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.
131 Section I, Article XV, Chapter I, Part XII of the IRP.
132 Book IV, Title VIII, Subtitle II, Chapter 1, Sec. 18.
133 Book IV, Title VIII, Subtitle II, Chapter 5, Sec. 32(4).
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).
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 Mabini's 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:ChanRoblesVirtualawlibraryThe 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 Construction, 3rd ed., pp. 395-400]. (See Pelizloy Realty Corp. v. The Province of Benguet, 708 Phil. 466, 480-481 [2013], as cited in Alta Vista Golf and Country Club v. City of Cebu, G.R. No. 180235, January 20, 2016)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 Soldiers' and Airmen's National Cemetery in the District of Columbia.
141 See 32 C.F.R. § 553.3 and 10 U.S.C.A. § 4721.
142Id.
143 10 U.S.C.A. § 4723.
144 36 C.F.R. § 12.2.
145Id.
146Id.
147 See National Electrification Administration v. COA, 427 Phil. 464, 485 (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:ChanRoblesVirtualawlibraryOn August 26, 1992, DILG Secretary Alunan informed Mrs. Marcos of the government's 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.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.
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:ChanRoblesVirtualawlibraryAblan 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.
- Direct flight of the remains of the late Pres. Marcos from Honolulu to Laoag.
- 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.
- That the remains will not be paraded to the other provinces.
- 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.
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.
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 PVAO's 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 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 (2010).
157Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, G.R. No. 180771 & 181527, December 8, 2015.
158Almario, et al. v. Executive Secretary, et al., supra note 46, at 166.
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:
chanRoblesvirtualLawlibrary(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:
chanRoblesvirtualLawlibrary(1) Dependent on the primarily eligible person for support; or
(2) A member of the primarily eligible person's 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 condbiatdions, a conduct discharge, a dishonorable discharge, or a dismissal), regardless of whether the person:
chanRoblesvirtualLawlibrary(1) Received any other veterans' 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.
(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 member's 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:
chanRoblesvirtualLawlibrary(1) Any person identified in writing to the Executive Director by the Attorney General of the United States, prior to his or her interment, inumment, 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 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 Army's 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 person's 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:
chanRoblesvirtualLawlibrary(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)
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, Under Secretary of Homeland Security for Management, Deputy Secretary of the Treasury, Deputy Secretary of Transportation, 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, Under Secretary 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, Under Secretary 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.
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.
(a) Primarily eligible persons. The following are primarily eligible persons for purposes of inurnment:
chanRoblesvirtualLawlibrary(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:
chanRoblesvirtualLawlibrary(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 Officers' Training Corps of the United States, Army, Navy, or Air Force, whose death occurs while:
chanRoblesvirtualLawlibrary(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:
chanRoblesvirtualLawlibrary(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.
(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 person's 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).
169 32 C.F.R. § 553.22(a).
170Id.
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.O. No. 1687 dated March 24, 1980.
172 Sec. 1 of R.A. No. 9049.
173Id.
174 In the event of the awardee's 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.
175 Sec. 1 of R.A. No. 6948.
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.
179 Section 14, Article III.
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.
(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 representative's procedural options.
(c) Notice and procedural options. The notice of procedural options shall indicate that, within fifteen days, the personal representative may:
chanRoblesvirtualLawlibrary(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.
(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 decedent's 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 decedent's 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 decedent's 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 Secretary's 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 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
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)
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 Marcos' military record is fraught with myths, factual inconsistencies, and lies. The NHCP study demonstrated that: (I) 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 Marcos' rank promotion from Major in 1944 to Lt. Col. by 1947; and (4) some of Marcos' 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").
185Emphasis supplied.
186Almario, et al. v. Executive Secretary, et al., supra note 46, at 163.
187 Vol. IV Record, September 19, 1986, pp. 829-831; See also Bernas, Joaquin G., S.J., The Intent of the 1986 Constitution Writers. 1995. pp. 116-117.
SERENO, C.J.:
Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.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
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.
The sole purpose of government is to promote, protect and preserve these [human] rights. And when govermnent not only defaults in its duty but itself violates the very rights it was established to protect, it forfeits its authority to demand obedience of the governed and could be replaced with one to which the people consent. The Filipino people exercised this highest of rights in the EDSA Revolution of February 1986.13Chief Justice Puno unequivocably repudiated the "ends-justifies-means" mantra of Martial Law when he catapulted the rights that Marcos trampled upon to the highest pinnacle of government priorities, and when as Chief Justice he made as his tenure's flagship the promulgation of the extraordinary and novel human rights writs of amparo and habeas data.
(1) | will derogate from the state's 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 |
Section 1. The Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.The above provision delineates judicial power and engraves, for the first time, the so-called expanded certiorari jurisdiction of the Supreme Court.16chanrobleslaw
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 first section starts with a sentence copied from former Constitutions. It says:ChanRoblesVirtualawlibraryThe expansion of judicial power resulted in constricting the reach of the political question doctrine.20Marcos v. Manglapus21 was the first case that squarely dealt with the issue of the scope of judicial power vis-a-vis the political question doctrine under the 1987 Constitution. In that case, the Court explained:ChanRoblesVirtualawlibraryThe 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 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....
x x x x
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the govermnent 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 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.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
x x x x
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
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing.24 (Citations omitted and Emphasis supplied)Notably, the present Constitution has not only vested the judiciary with the right to exercise judicial power, but made it a duty to proceed therewith - a duty that cannot be abandoned "by the mere specter of this creature called the political question doctrine."25cralawred This duty must be exercised "to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions."26chanrobleslaw
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.27The question I now pose to my colleagues in the Majority: "Are we not, by refusing to pass upon the question of the effects of the Marcos burial at the LMB, encouraging authoritarianism, plunder, and the violation of human rights, by signaling that what Marcos and his Martial Rule represents is not anathema?"
While the Court considered the President's "calling-out" power as a discretionary power solely vested in his wisdom, it stressed that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. This ruling is mainly a result of the Court's reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only "to settle actual controversies involving rights which are legally demandable and enforceable," but also "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."37 (Citations omitted)In Biraogo v. Philippine Truth Commission of 2010,38 even the President's creation of a Truth Commission was reviewed by the Court. As will be further explained, the fact that the commission was created to implement a campaign promise did not prevent the Court from examining the issue.
The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power has been extended to the determination of whether in matters traditionally considered to be within the sphere of appreciation of another branch of government, an exercise of discretion has been attended with grave abuse. The expansion of this power has made the political question doctrine "no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review."56 (Citations omitted)Notably, while there were instances when the Court deferred from interfering with an issue involving a political question, it did so not because political questions were involved but because of a finding that there was no grave abuse of discretion.57 Otherwise stated, the Court still exercised its expanded judicial power, but found no reason to annul the questioned acts. It held in Defensor-Santiago v. Guingona, Jr.,58 "the all-embracing and plenary power and duty of the Court 'to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government' is restricted only by the definition and confines of the term 'grave abuse of discretion.'"
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.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.
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
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 President's 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:ChanRoblesVirtualawlibraryIn 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."65chanrobleslawSec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.The President's 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)
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 xTo carry out this duty, the Court must examine not only the subject law itself, but the entire body of related laws including the Constitution, domestic statutes, administrative issuances and jurisprudence. It is only by taking a holistic view of the matter that the Court can ensure that its reading of the law is consistent with the spirit thereof. In Social Weather Stations, Inc. v. COMELEC,70 we explained the importance of taking a holistic view when interpreting the law:ChanRoblesVirtualawlibraryThe 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
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.In this case, we are being asked to decide whether the President may validly order the burial of Former President Marcos in the LMB. The resolution of this question requires more than an examination of the text of AFP Regulations 161-375. More than finding a textual anchor, we are compelled by this issue to scrutinize the implications of the President's order and determine if it conflicts with the text, the policy, and the spirit of the law.
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
SECTION 1. Until a legislature is elected and convened under a New Constitution, the President shall continue to exercise legislative power.Pursuant to this mandate, then President Corazon Aquino issued three executive orders focused entirely on the recovery of the ill-gotten wealth taken by Marccs and his supporters:
The President shall give priority to measures to achieve the mandate of the people to:x x x xd) 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;
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. |
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: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.
a) | Human rights violations were committed during the Martial Law period "from September 21, 1972 to February 25, 1986 by persons acting in an official capacity and/or agents of the State;"81 and |
b) | A number of these human rights violations occurred because of decrees, declarations or issuances made by Marcos;82 and by "acts of force, intimidation or deceit"83 done by him, his spouse, Imelda Marcos, and their immediate relatives by consanguinity or affinity, associates, cronies and subordinates.84 |
In PCGG v. Peña, this Court, describing the rule of Marcos as a "well-entrenched plundering regime" of twenty years, noted the "magnitude of the past regime's 'organized pillage' and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market." The evidence presented in this case reveals one more instance of this grand scheme. This Court - guardian of the high standards and noble traditions of the legal profession - has thus before it an opportunity to undo[,] even if only to a certain extent, the damage that has been done.92 (citations omitted)In addition to the plunder of the public coffers, Marcos was harshly condemned by this Court for the human rights abuses committed during the Martial Law period.93 In Mijares v. Ranada, et al.,94 it stated:ChanRoblesVirtualawlibrary
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.Marcos himself was severely criticized for abuses he had personally committed while in power. For instance, he was found to have unlawfully exercised his authority for personal gain in the following cases: (a) Tabuena v. Sandiganbayan,96 in which he ordered the general manager of the Manila International Airport Authority to directly remit to the Office of the President the amount owed by the agency to the Philippine National Construction Corporation; (b) Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,97 in which Marcos made a marginal note prohibiting the foreclosure of the mortgaged assets of Mindanao Coconut Oil Mills and waiving the liabilities of the corporation and its owners to the National Investment and Development Corporation; and (c) Republic v. Tuvera,98 in which Marcos himself granted a Timber License Agreement to a company owned by the son of his longtime aide, in violation of the Forestry Reform Code and Forestry Administrative Order No. 11.
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)
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 Malacanang Palace "a scripted and pre-determined 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 pre-determined the final outcome of the case of total absolution of the twenty-six respondents accused of all criminal and civil liability.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."105chanrobleslaw
x x x x
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 Malacañang 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)
It was a long and horrible nightmare when our people's rights, freedoms and liberties were sacrificed at the altar of "national security" even though it involved nothing more than the President-dictator's 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.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:ChanRoblesVirtualawlibrary
x x x x
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 commission's 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 d'etat 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 wives' 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 ventilation. 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.
Horacia Morales, Jr., 1977 TOYM awardee for government service and then executive vice-president of the Development Academy of the Philippines, was among the hard-working 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 regime's 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. Aquino's 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 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 Valentine's 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 vs. 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.109 (Citations omitted)
The greatest threat to freedom is the shortness of human memory. We must note here the unforgettable and noble sacrifices of the countless brave and patriotic men and women who feel as martyrs and victims during the long dark years of the deposed regime. In vacating the death sentence imposed on the petitioners who survived the holocaust, we render them simple justice and we redeem and honor the memory of those who selflessly offered their lives for the restoration of truth, decency, justice and freedom in our beloved land.110 (Emphasis supplied)3. The President may not contradict or render ineffective the denunciations, or the policies and principles enunciated in the foregoing statutes and jurisprudence.
To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see Hyman,The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President].121 (Emphasis supplied)The Court in that case also reiterated the underlying principles that must guide the exercise of presidential functions and powers, residual or otherwise:ChanRoblesVirtualawlibrary
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.
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.Interpreting this provision, the United Nations Human Rights Committee131 (UNHRC) issued General Comment No. 31132 declaring that the obligation in Article 2(1) is owed not just to individuals as the rights holders under the ICCPR, but to every state party therein.133 The duty to respect basic human rights is likewise considered an erga omnes obligation in view of the importance of the rights involved.134 In other words, it is an obligation towards the international community as a whole.135chanrobleslaw
3. Each State Party to the present Covenant undertakes: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.148chanrobleslaw
chanRoblesvirtualLawlibrary(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.147
The obligations of States parties to provide redress under Article 14 are two-fold: procedural and substantive. To satisfy their procedural obligations, States parties shall enact legislation and establish complaints mechanisms, investigation bodies and institutions, including independent judicial bodies, capable of determining the right to and awarding redress for a victim of torture and ill-treatment, and ensure that such mechanisms and bodies are effective and accessible to all victims. At the substantive level, States parties shall ensure that victims of torture or ill-treatment obtain full and effective redress and reparation, including compensation and the means for as full rehabilitation as possible.174 (Emphasis supplied)In other words, the procedural dimension refers to the legal means by which alleged human rights violations are addressed by an impartial authority; the substantive dimension involves prompt and effective reparation for the harm suffered.175chanrobleslaw
The Chamber accepts that the right to reparations is a well-established and basic human right, that is enshrined in universal and regional human rights treaties, and in other international instruments, including the UN Basic Principles; the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime; the Nairobi Declaration; the Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa; and the Paris Principles. These international instruments, as well as certain significant human rights reports, have provided guidance to the Chamber in establishing the present principles.179 (Emphasis supplied)Understanding Reparations
Reparation must, as far as possible, wipe out all consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.183Reparation, as a means to provide redress for past violations, goes to the very heart of human protection. It has been recognized as a "vital process in the acknowledgment of the wrong done to the victim, and a key component in addressing the complex needs of victims in the aftermath of violations of international human rights and humanitarian law."184 As explained by the Inter-American Commission of Human Rights (IACtHR) in its Report on the Implementation of the Justice and Peace Law:185
The [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.186chanrobleslawUN Reparations Principles
x x x x
The State must play a primary, rather than a secondary, role in guaranteeing victims' access to reparations in accordance with the standards of international law.187
Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms x x x.196Therefore, the state obligation to provide reparations to victims of human right violations - as established in this text - takes its normative character from existing legal obligations under international human rights law. As declared in the Preamble197 and Parts I198 and II199 of the UN Reparations Principles, the underlying framework of this document is grounded on the right to effective remedies enshrined in international human rights law.
IX. Reparation for harm sufferedHolistic Approach to Reparations
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.
x x x x
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.
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."205chanrobleslaw
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 one's place of residence, restoration of employment and return of property.Clearly, aside from addressing the injuries suffered by victims through financial compensation, reparation also addresses a broader set of issues, through the prevention of future human rights violations. It addresses "democracy, good governance, and building an inclusive political community. Reparations includes recognition, acknowledgment of violations and state responsibility. It can contribute to structural transformation"206 while also seeking to promote peace and reconciliation.207 This holistic approach to reparation is followed in other human rights institutions like the UNCAT, the UNHRC, the ICC, the IACtHR and the European Court of Human Rights (ECHR).
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:
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(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:
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(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 victim's relatives, witnesses, or persons 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 acknowledgement 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:
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(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 tor 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.
consists in full restitution (restitutio in integrum), which includes the re establishment of the previous situation. If this is not feasible, as in most cases of human rights violations, the Court will determine measures to guarantee the rights that have been violated and to redress the consequences of the violations. Therefore, the Court has found it necessary to award different measures of reparation in order to redress the damage fully, so that, in addition to pecuniary compensation, measures of restitution, rehabilitation and satisfaction, and parantees of non-repetition, have special relevance to the harm caused.214It 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.
[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.217chanrobleslawB. The burial would contravene the duty of the Philippines to provide reparations to victims of human rights violations during the Marcos regime.
x x x x
Nevertheless, the provisions of Article 50 which recognise the Court's 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
Among the important features of this bill are:The law also recognized the binding nature of the Decision of the US Federal District Court of Honolulu, Hawaii,221 by creating a conclusive presumption that the claimants in the case against the Estate of Ferdinand Marcos were human rights violations victims.222 In that case, compensatory and exemplary damages were awarded to (a) the class plaintiffs who were declared to have been tortured; or (b) the heirs and beneficiaries of those who were summarily executed, or who disappeared while in the custody of Philippine military or paramilitary groups.223 Several petitioners in the present case were claimants therein and are thus conclusively considered victims of human rights during the Marcos regime.
chanRoblesvirtualLawlibraryOne, 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 cralawlawlibrary
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
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."Considering the foregoing, the intent is that not only must material reparation be provided by the state to human rights victims, the prohibition against public acts and symbolisms that degrade the recognition of the injury inflicted - although not expressly mentioned in the statute - are likewise included in the obligation of the state. Therefore, while the passage of legislative measures and the provision of government mechanisms in an effort to comply with this obligation are lauded, the State's duty does not end there.
Ang rationale dito kasi this one implies - The present definition implies that the damage - When you're 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.
Sen. Guingona: Reparation. Instead of "economically assessable" parang sinasabi mo you[r] right has been violated but that's eqivalent to this amount.226chanrobleslaw
x x x x
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)
As many recent reparations programmes have been proposed by truth commissions (which have broader mandates and goals than typical judicial instances), they are becoming less like mere compensation mechanisms and are increasingly proposing more complex reparations measures, including symbolic ones. Individualized letters of apology signed by the highest authority in Government, sending each victim a copy of the truth commission's report and supporting families to give a proper burial to their loved ones are some of the individual symbolic measures that have been tried with some success in different contexts. Some of the collective symbolic measures that have been tried are renaming public spaces, building museums and memorials, rededicating places of detention and torture, turning them into sites of memory, establishing days of commemoration and engaging in public acts of atonement. Like other reparations measures, symbolic benefits are, at least in part, geared towards fostering recognition. However, in contrast to other benefits, symbolic measures derive their great potential from the fact that they are carriers of meaning, and therefore can help victims in particular and society in general to make sense of the painful events of the past. Symbolic measures usually turn out to be so significant because, by making the memory of the victims a public matter, they disburden their families from their sense of obligation to keep the memory alive and allow them to move on. This is essential if reparations are to provide recognition to victims not only as victims but also as citizens and as rights holders more generally.236 (Emphasis supplied)Restitution, compensation, and rehabilitation under the UN Reparations Principles, while necessary, are lacking in this symbolic dimension. Monetary forms of reparation can indeed provide funds for certain necessities and improve the future of victims, but without more, it is unlikely that they would lead to the justice sought.
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 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:ChanRoblesVirtualawlibrary
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
With the passage of time, memorials have shifted from honouring soldiers dying in the line of duty to a victims' perspective and new visions of reconciliation. Starting in the 1980s, the creation of memorials has become linked to the idea that ensuring public recognition of past crimes is indispensable to the victims, essential for preventing further violence and necessary for redefining national unity. Memorialization is often a demand of victims and society at large and the path to national reconciliation is seen to pass through not only legal reparations, but also symbolic reparations such as memorials.2602. The proposed burial would be the antithesis of an act of symbolic reparation.
The site can be put to good use and "reinterpreted", with suitable techniques and pedagogy, in favour of the promotion of truth and memory, and given an educational and preventive purpose. It can hardly be construed as a place devoted to peace and reconciliation, so long as silence is maintained about the facts relevant to the context and origin of the site, and especially while the flower-covered tomb of the dictator remains in the centre of the monument.269 [Emphasis supplied]The necessity for the reinterpretation and "recontextualization" of the Valle de los Caidos highlights the fact that far from being an ordinary burial plot, the final resting place of a dictator and perpetrator of human rights violations is a symbol and a source of meaning. The meaning it conveys, particularly to the victims of atrocities, cannot be underestimated. Special Rapporteur Shaheed, in her report on memorialization processes, also expressed concerns about the monuments and sites intended to honor past oppressive regimes:ChanRoblesVirtualawlibrary
The question is how to manage an architectural legacy with strong symbolic connotations when oppressive regimes collapse. Should a new democratic Government destroy, conserve or transform these legacies? Answers vary from situation to situation, frequently giving rise to intense controversy, including amongst victims. Striking examples include debates in Spain over the memorial in Valle de los caidos (the Valley of the Fallen) where Franco is buried, in Bulgaria over the mausoleum of former communist leader Georgy Dimitrov, which was finally destroyed, and in Germany over Hitler's bunker, now located beneath a parking lot in the centre of Berlin, marked only by a small sign.270Shaheed therefore concludes "the choice to conserve, transform or destroy always carries meaning and so needs to be discussed, framed and interpreted."271 In this undertaking, the concerns and views of victims are given primary consideration and for good reason - they are, after all, the persons most affected by any decision on the matter.
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.280A reading of the UN Principles on Impunity reveals the close relationship between impunity and the concepts of reparations and the preservation of memory.
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:ChanRoblesVirtualawlibraryPRINCIPLE 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.
x x x xPRINCIPLE 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.
On a collective basis, symbolic measures intended to provide moral reparation, such as formal public recognition by the State of its responsibility, or official declarations aimed at restoring victims' dignity, commemorative ceremonies, naming of public thoroughfares or the erection of monuments, help to discharge the duty of remembrance. In France, for example, it took more than 50 years for the Head of State formally to acknowledge, in 1996, the responsibility of the French State for the crimes against human rights committed by the Vichy regime between 1940 and 1944. Mention can be made of similar statements by President Cardoso concerning violations committed under the military dictatorship in Brazil, and more especially of the initiative of the Spanish Government, which recently conferred the status of ex-servicemen on the anti-Fascists and International Brigade members who fought on the Republican side during the Spanish civil war.283The Duty to Preserve Memory
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:ChanRoblesVirtualawlibraryPRINCIPLE 3. THE DUTY TO PRESERVE MEMORY
A people's knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in 61fulfillment of the State's duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
Aware that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied,Consistent with the foregoing, the UN Impunity Principles imposes restrictions on certain rules of law like limiting the entitlement of perpetrators to amnesties and other measures of clemency. In Principle 24, the restrictions are imposed even when clemency measures are "intended to establish conditions conducive to a peace agreement or to foster national reconciliation."285 Joinet, in his report, emphasizes the importance of accountability in the context of reconciliation:ChanRoblesVirtualawlibrary
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 victim's beneficiaries know the perpetrator of the violations and that the latter has acknowledged his or her deeds,
x x x x
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
[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.286In this case, the burial of Marcos in the LMB would be tantamount to a disregard of the human rights violations perpetrated by his regime. To allow it to proceed would sanction an egregious act of impunity and allow the government to bestow an honor that is clearly not due upon a perpetrator of human rights violations. To allow it would be a rampant violation of the rights of victims under international law.
In Pascual v. Secretary of Public Works, the Court laid down the test of validity of a public expenditure: it is the essential character of the direct object of the expenditure which must determine its validity and not the magnitude of the interests to be affected nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. Incidental advantage to the public or to the State resulting from the promotion of private interests and the prosperity of private enterprises or business does not justify their aid by the use of public money.298 (Citations omitted and Emphasis supplied)Based on the foregoing standard, the validity of public expenditures must be determined based on the nature of the particular expense involved, and the public purpose sought to be accomplished.
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.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."308chanrobleslaw
President Duterte's 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.306chanrobleslaw
x x x x
It should likewise be emphasized that President Duterte's order to allow former President Marcos' 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
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.317To forget that Marcos took this right away from the citizens of the Philippines would be the peak of intellectual and moral complacency. As a nation of laws, we cannot tolerate anything less than the full remembrance of a dark past from which we derive lessons that we imbue into the legal firmament. We cannot tolerate another instance in which our rights would be run to the ground, in which we would lose sight of the values held in our own Constitution, the symbols we hold dear, the aspirations we cherish. The LMB is revered because of the symbolism it carries. One treatise on geography and public memory explains:ChanRoblesVirtualawlibrary
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.318A grave in the LMB is a testament to the honor and valor of the person buried therein. The Marcos family has long sought a burial for the dictator at this site for this exact reason.
Endnotes:
1Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016; Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003); Estrada v. Desierto, 406 Phil. 1 (2001); Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792; Bondoc v. Pineda, 278 Phil. 784 (1991); Marcos v. Manglapus, 258 Phil. 479 (1989).
2Arroyo v. De Venecia, 343 Phil. 42 (1997).
3David v. Macapagal-Arroyo, 522 Phil. 705 (2006); Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000); Llamas v. Orbos, 279 Phil. 920 (1991).
4 1987 Constitution, Preamble. Also see Concurring Opinion of Chief Justice Sereno in Poe-Llamanzares v. COMELEC, G.R. Nos. 221697 & 221698-700, 8 March 2016.
5Resident Marine Mammals of the Protected Seascape Tanon Strait, v. Secretary Angelo Reyes, G.R. No. 180771, 21 April 2015. West Tower Condominium Corp. v. First Phil. Industrial Corp., G.R. No. 194239, 16 June 2015; Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, 595 Phil. 305 (2008); Oposa v. Factoran, Jr., supra note 1.
6Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, 204934, 204957, 204988, 205003, 205043, 205138, 205478, 205491, 205720, 206355, 207111, 207172, 207563, 8 April 2014; Garcia v. Drilon, 712 Phil. 44 (2013); Philippine Telegraph and Telephone Co. v. National Labor Relations Commission, 338 Phil. 1093 (1997).
7Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700, 8 March 2016; Dela Cruz v. Gracia, 612 Phil. 167 (2009); People v. Abadies, 433 Phil. 814 (2002).
8Seagull and Maritime Corp. v. Dee, 548 Phil. 660 (2007); Lopez v. Metropolitan Waterworks and Sewerage System, 501 Phil. 115 (2005).
9La Bugal-B'laan Tribal Association, Inc. v. Ramos, 486 Phil. 754 (2004).
10The Diocese of Bacolod v. Commission on Elections, G.R. No. 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 (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.
12 See, among others, Vda. de Padilla v. Vda. de Padilla, 74 Phil. 377 (1943); Republic v. de los Angeles, 148-B Phil. 902 (1971); Floresca v. Philex Mining Corp., 220 Phil. 533 (1985); Salvacion v. Central Bank of the Philippines, 343 Phil. 539 (1997); Concurring Opinion of Chief Justice Maria Lourdes P.A. Sereno in Corpuz v. People, 734 Phil. 353 (2014) citing the Report of the Code Commission, p. 78; Social Weather Stations, Inc. v. COMELEC, G.R. No. 208062, 7 April 2015; Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, 10 November 2018; Poe-Llamanzares v. Commission on Elections, supra note 7.
13 Concurring Opinion of Chief Justice Puno in Republic v. Sandiganbayan, 454 Phil. 504 (2003).
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.
15Integrated Bar of the Philippines v. Zamora, supra note 3.
16Francisco, Jr. v. House of Representatives, 460 Phil. 830 (2003).
17Oposa v. Factoran, Jr., supra note 1.
18 Id.
19 I RECORD of the 1986 Constitutional Commission 434-436 (1986).
20Estrada v. Desierto, supra note 1.
21Marcos v. Manglapus, supra note 1.
22 Supra note 20, at 506-507.
23Estrada v. Desierto, supra note 1.
24 Id. at 42-43.
25cralawred Francisco, Jr. v. House of Representatives, supra note 16, at 910.
26Araullo v. Aquino III, G.R. Nos. 209287, 209135, 209136, 209155, 209164, 209260, 209442, 209517, 209569, 1 July 2014, 728 SCRA 1, 74.
27 Supra note 19.
28Department of Foreign Affairs v. National Labor Relations Commission, 330 Phil. 573 (1996); Callado v. International Rice Research Institute, 314 Phil. 46 (1995); Lasco v. United Nations Revolving Fund for Natural Resources Exploration, 311 Phil. 795 (1995); The Holy See v. Rosario, Jr., G.R. No. 101949, 1 December 1994, 238 SCRA 524; International Catholic Migration Commission v. Calleja, G.R. No. 85750, 89331, 268 Phil. 134 ( 1990).
29Vinuya v. Romulo, 633 Phil. 538 (2010).
30Evardone v. Commission on Elections, G.R. No. 94010, 95063, 2 December 1991, 204 SCRA 464.
31Marcos v. Manglapus, supra note 121.
32Gonzales v. Macaraig, Jr., 269 Phil. 472 ( 1990).
33Llamas v. Orbos, 279 Phil. 920 (1991).
34Integrated Bar of the Philippines v. Zamora, supra note 3.
35Estrada v. Desierto, supra note 1.
36David v. Macapagal-Arroyo, 522 Phil. 705 (2006).
37 Id. at 766.
38Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374 (2010).
39Daza v. Singson, 259 Phil. 980 (1989).
40Bondoc v. Pineda, 278 Phil. 784 (1991).
41Bengzon Jr. v. Senate Blue Ribbon Committee, G.R. No. 89914, 20 November 1991.
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."
43Francisco, Jr. v. House of Representatives, supra note 16.
44Neri v. Senate Committee on Accountability of Public Officers and Investigations, 573 Phil. 554 (2008).
45Gutierrez v. House of Representatives Committee on Justice, 658 Phil. 322 (2011). We explained therein that "the Court is not asserting its ascendancy over the Legislature in this instance, but simply upholding the supremacy of the Constitution as the repository of the sovereign will."
46Tañada v. Angara, 338 Phil. 546 (1997), at 575.
47 Id.
48 Id.
49Belgica v. Ochoa, 721 Phil. 416 (2013).
50Araullo v. Aquino III, supra note 26.
51The Diocese of Bacolod v. Commission on Elections, supra note 10.
52 Id. at 53.
53Villanueva v. Judicial and Bar Council, G.R. No. 211833, 7 April 2015, 755 SCRA 182.
54 Id. at 197.
55Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016.
56 Id.
57 See Pimentel, Jr. v. Senate Committee on the Whole, 660 Phil. 202 (2011); Spouses dela Paz v. Senate Committee on Foreign Relations, 598 Phil. 981 (2009); Garcia v. Executive Secretary, 602 Phil. 64 (2009); Sanlakas v. Reyes, 466 Phil. 482 (2004); Eastern Assurance & Surety Corp. v. LTFRB, 459 Phil. 395 (2003); Lim v. Executive Secretary, 430 Phil. 555 (2002); Bagatsing v. Committee on Privatization, 316 Phil. 404 (1995); Co v. House of Representatives Electoral Tribunal, 216 Phil. 758 (1991); Garcia v. Executive Secretary, 281 Phil. 572 (1991).
58Defensor-Santiago v. Guingona, Jr., 359 Phil. 276 (1998).
59 Supra note 38.
60 Id. at 428.
61 1987 CONSTITUTION, Article VII, Section 17.
62 714 Phil. 127, 163-164 (2013).
63See Concurring Opinion of Associate Justice Arturo Brion, Biraogo v. Philippine Truth Commission of 2010, 651 Phil. 374 (2010).
64 135 U.S. 1, pp. 82-84.
65 Id. at 64.
66 In Carpio-Morales v. Court of Appeals, supra note 12, the Court defined grave abuse of discretion in this manner:ChanRoblesVirtualawlibraryIt 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 63.
68 234 Phil. 267 (1986).
69 Id. at 272-273.
70 G.R. No. 208062, 7 April 2015, 755 SCRA 124.
71 Id. at 167.
72 Provisional Constitution, First Whereas Clause; Also see In re: Puno, A.M. No. 90-11-2697-CA (Resolution), 29 June 1992.
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.
79 EXECUTIVE ORDER NO. 2, supra note 75, First Whereas Clause.
80PCGG v. Peña, 243 Phil. 93 (1998).
81 Section 3 of RA 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."
82 The definition of human rights violations in Section 3 of R.A. 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. 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. 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. 10368, Section 4 states:ChanRoblesVirtualawlibrarySECTION 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 R.A. 10368, Section 5 provides:ChanRoblesVirtualawlibrarySECTION 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.87 R.A. 10368, Section 7 provides:ChanRoblesVirtualawlibrarySECTION 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 vs. 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.88Republic v. Sandiganbayan, 453 Phil. 1059 (2003).
89 686 Phil. 980 (2012).
90 512 Phil. 425 (2005).
91 515 Phil. 1 (2006).
92 Id. at 48-49.
93See Contado v. Tan, 243 Phil. 546 (1988).
94 495 Phil. 372 (2005).
95 Id. at 372.
96 335 Phil. 795 (1997).
97 664 Phil. 16 (2011).
98 545 Phil. 21 (2007).
99 228 Phil. 42 (1986).
100 Id. at 71-83.
101See Heirs of Licaros v. Sandiganbayan, 483 Phil. 510, 524 (2004).
102See Republic v. Tuvera, supra note 98, p. 61.
103 See PCGG v. Peña, 243 Phil. 93, 115 (1988).
104Mijares v. Ranada, supra note 94, p. 372.
105Marcos v. Manglapus, supra note 1, at 492.
106 CIVIL CODE, Article 8.
107Government Service Insurance System v. Group Management Corp., 666 Phil. 277 (2011).
108 234 Phil. 144 (1987).
109 Id. at 173-177.
110 Id. at 177.
111 Public Respondents' Memorandum with Prayer to Lift Status Quo Ante Order, (hereinafter Public Respondents' 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.
113 PRESIDENTIAL DECREE NO. 1076, Amending Part XII (Education) and Part XIX (National Security) of the Integrated Reorganization Plan, 26 January 1977.
114Rabuco v. Villegas, 154 Phil. 615 (1974).
115 Civil Code, Article 7.
116 See Almario v. Executive Secretary, 714 Phil. 127 (2013).
117 TSN, 7 September 2016, pp. 11-12.
118 258 Phil. 479 (2008).
119Sanlakas v. Reyes, 466 Phil. 482 (2004).
120 TSN, 7 September 2016, p. 11.
121 Supra note 105, p. 504.
122 Id. at 503.
123 Supra note 62.
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, 17 December 2002, the Court explained the principle of pacta sunt servanda as follows:ChanRoblesVirtualawlibraryArticle 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 state's 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 note 124, Preamble.
128 Id., Art. 55.
129 Id.
130 Id., Art. 56.
131 Pursuant to Article 40 of the ICCPR, the UN HRC 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.
134Case 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.
136 Hurst Hannum, The Universal Declaration of Human Rights, in THE ESSENTIALS OF HUMAN RIGHTS 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 note 136.
141 DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW, 37 (1999 ed.).
142 Sonja B. Starr, Rethinking "Effective Remedies:" Remedial Deterrence in International Courts, 83 N.Y.U. L. REV. 693, 698 (2008), p. 693.
143 Id.; Black's Law Dictionary 6th edn. (1990), 1120.
144 OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, RULE-OF-LAW TOOLS FOR POST-CONFLICT STATES: REPARATIONS PROGRAMMES, at 7, U.N. Sales No. E.08.XIV.3 (2008); SHELTON, supra note 141, at 15.
145 DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW, 61 (2015 ed.).
146 UDHR, supra note 137, art. 8.
147 ICCPR, supra note 125, Art. 2.
148 In General Comment No. 3 l, supra note 132, the UNHRC explains:ChanRoblesVirtualawlibraryArticle 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:ChanRoblesVirtualawlibraryStates 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.150UN 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:ChanRoblesVirtualawlibrary152 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].
- 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.
- Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.
153 Id., par. 2.
154 General Comment No. 3, par. 6 states:ChanRoblesVirtualawlibraryReparation 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:ChanRoblesVirtualawlibraryEveryone 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.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:ChanRoblesVirtualawlibraryIf 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 People's Rights on the Rights of Women in Africa, 11 July 2003. Article 27 of the Protocol states:ChanRoblesVirtualawlibraryIf the Court finds that there has been violation of a human or peoples' rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.158 OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, supra note 144, at 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].
160 ILC Articles, Art. 30(a).
161 Id., Art. 30(b).
162 Id., Art. 31(a).
163 OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, supra note 144, at 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 Antoine Buyse, 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, supra note 164, par. 45.
166 ILC Articles, supra note 159, art. 33(2).
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:ChanRoblesVirtualawlibraryThe 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:ChanRoblesVirtualawlibraryVictims 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.171 SHELTON, supra note 141, at 37.
172 Id.
173 Diana Contreras-Garduño, Defining Beneficiaries of Collective Reparations: the Experience of the IACtHR, 4 AMSTERDAM LAW FORUM, 43 (2012).
174 General Comment No. 3, supra note 152, par. 5.
175 Contreras-Garduño, supra note 173, at 43.
176 Id.
177 UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPRJC/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."
178The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, 14 May 2007.
179 Id., par. 185.
180 Jeremy Sarkin, 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 7.
182Factory At Chorzow, 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.
184 Sarkin, supra note 180, at 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 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].
189 Sarkin, supra note 180, at 536.
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.
194 Sarkin, supra note 180, at 546.
195 Buyse, supra note 164, at 140.
196 UN Reparations Principles, supra note 188, at 3.
197 The Preamble of the UN Reparations Principles states in relevant part:ChanRoblesVirtualawlibraryRecalling the provisions providing a right to a remedy for victims of violations of international human rights law found in numerous international instruments. x x x198 The UN Reparations Principles, supra note 188, Part I, states:ChanRoblesVirtualawlibrary
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 victims' 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[.]199 The UN Reparations Principles, supra note 188, Part II, provides:
- Obligation to respect, ensure respect for and implement international human rights law and international humanitarian law
- 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:
chanRoblesvirtualLawlibrary(a) Treaties to which a State is a party;
(b) Customary international law;
(c) The domestic law of each State.- 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:
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(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 etfective 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.
chanRoblesvirtualLawlibraryII. Scope of the obligation200 UN Reparations Principles, supra note 188, Part VII.
- 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:
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(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.
201 Supra note 182.
202 Contreras-Garduño, supra note 173, at 43.
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.
206 Sarkin, supra note 180, at 542.
207 Contreras-Garduño, supra note 173, at 41.
208 General Comment No. 3, supra note 152, par. 9.
209 UNHRC General Comment No. 31, supra note 132, par. 16.
210The Prosecutor v. Thomas Lubanga Dyilo, supra note 178.
211 Id., par. 177.
212 Id., par. 180.
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 01, 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, para 226, and Case of Cruz Sanchez et al. v. Peru, para. 452.
215 Contreras-Garduño, supra note 173, at 45, citing C. Medina-Quiroga, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System, 1988, p. 369.
216 Van Boven Report, supra note 164, par. 81 citing the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 50.
217 Van Boven Report, supra note 164, 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 10368, Section 2.
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 10368, Section 17.
223 The Final Judgment in Human Rights Litigation Against the Estate of Ferdinand E. Marcos states in relevant part:ChanRoblesVirtualawlibrary224 R.A. 10368, Section 4 states:ChanRoblesVirtualawlibrary
1) The Court incorporates herein its Judgment on Liability entered October 20, 1992 and its Order entered December 17, 1992 denying defendant's posttrial 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 the Republic of the Philippines, their heirs and beneficiaries, 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 the Republic of the Philippines, their heirs and beneficiaries, 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.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.225 R.A. 10368, Section 5 provides:ChanRoblesVirtualawlibrarySECTION 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.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, 1-2, pp. 6-7.
227 Id. at IV-6, p. 7 and 1-7, p. 1.
228See In re Estate of Ferdinand Marcos, Human Rights Litigation Hilao v. Estate of Ferdinand Marcos, 25 F. 3d 1467.
229 Frederic Megret, Of Shines, Memorials and Museums: Using the International Criminal Court's Victim Reparation and Assistance Regime to Promote Transitional Justice, 13, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1403929 (last accessed 20 September 2016) [Megret].; Frederic Megret, The International Criminal Court and the Failure to Mention Symbolic Reparations, 12, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1275087 [last accessed 20 September 2016] [Megret II].
230 Megret II, supra note 229, at 3.
231 Sarkin, supra note 180, at 547.
232 Megret II, supra note 229, at 6.
233 Gina Doñoso, Inter-American Court of Human Rights' reparation judgments: Strengths and challenges for a comprehensive approach, 49 Revista IIDH 29, 58 (2009); Megret II, supra note 229, at 6.
234 Sarkin, supra note 180, 548 citing the Report of Truth and Reconciliation Commission of South Africa.
235 UN Sub-Commission on the Promotion and Protectton 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 42.
236 OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS, supra note 144, at 23.
237 Thomas Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int'l Law, 279, 284 (2011).
238 Megret, supra note 229, at 13.
239 Thomas Antkowiak, supra note 237.
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 26.
246 Megret II, supra note 229, at 5.
247 UN Reparations Principles, supra note 188, Principle 23 (g).
248 Id., Principle 23 (h).
249The 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).
253Case of the Moiwana Community v. Suriname, supra note 250, par. 191.
254 I/A Court H.R., Case of Norin Catriman 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.
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 ., par. 39-41.
260 Id., par. 9.
261 UN Human Rights Council, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mission to Spain, 22 July 2014, par. 5 [hereinafter de Greiff Report].
262 Id., par. 29-30
263 Id., par. 32.
264 Supra note 261.
265Ley de Memoria Historica or La Ley por la que se reconocen y amplian 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 note 261, par. 27.
267 Id.
268 Id., par. 30.
269 Id., par. 33.
270 Id., par. 62.
271 Id., par. 63.
272 Rosales Petition, p. 61.
273 Id. at 17.
274 Anja Seibert-Fohr, Reconstruction Through Accountability in MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 559 (A. Von Bogdandy and R. Wolfrum, eds., 2005) citing U.N. GAOR, Hum. Rts. Comm., 52d Sess., 1365th mtg. at 12, para. 54, U.N. Doc. CCPR/C/SR.1365 (1994); U.N. GAOR, Hum. Rts. Comm., 57th Sess. at 5, para. 32, U.N. Doc. CCPR/C/79/Add.65 (1996).
275 Van Boven Report, supra note 164, par. 126.
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.
280 Id., Principle 1.
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.
284 UN Impunity Principles, supra note 278, Preamble.
285 Id., Principle 24.
286 Joinet Report, supra note 235, par. 26.
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 victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.
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.
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 9851 state:ChanRoblesVirtualawlibrarySECTION 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:291Dimapilis-Baldoz v. Commission on Audit, 714 Phil. 171 (2013).
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(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.
SECTION 15. Applicability of International Law. - In the application and interpretation of this Act, Philippine courts shall be guided by the following sources:
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(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 intemational 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.
292 Id.
293 PRESIDENTIAL DECREE 1445 (1978), Section 4(2); REPUBLIC ACT 7160 (1991), Section 305(b); See Strategic Alliance Development Corp. v. Radstock Securities Ltd., 622 Phil. 431 (2009).
294Yap v. Commission on Audit, 633 Phil. 174 (2010).
295Binay v. Domingo, 278 Phil. 515 (1991).
296See Petitioner-Organizations v. Executive Secretary, 685 Phil. 295 (2012).
297 526 Phil. 630 (2006).
298 Id. at 638.
299 TSN, 7 September 2016, pp. 220-226.
300See REPUBLIC ACT NO. 7160, Section 17.
301See PROCLAMATION NO. 425, Balantang Memorial Cemetery National Shrine in Jaro, Iloilo City.
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 Naiional Shrines as Sacred (Hallowed) Places and Prohibiting Desecration Thereof, (1973).
305 Consolidated Comment dated 22 August 2016, pp. 43-44.
306 Id. at 5.
307 Id. at 26.
308Yap v. Commission on Audit, supra note 294, at 188.
309 See Albon v. Fernando, supra note 297.
310 Consolidated Comment dated 22 August 2016, p. 16.
311 Id., footnote 51.
312 TSN, 7 September 2016, p. 165, 234.
313See Chavez v. Presidential Commission on Good Government, 360 Phil. 133 (1998).
314 In Presidential Commission on Good Government v. Peña, supra note 103, at 107, the Court stated:ChanRoblesVirtualawlibraryThe rationale of the exclusivity of such jurisdiction is readily understood. Given the magnitude of the past regime's "organized pillage" and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market, it is a matter of sheer necessity to restrict access to the lower courts, which would have tied into knots and made impossible the Commission's 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.315 Public Respondents' Memorandum, p. 60.
316Ordoñez v. Director of Prisons, G.R. No. 115576, 4 August 1994, 235 SCRA 152.
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, 2007, Vol. 35, No. 1 (Summer), pp. 125-144.
319 In Public Respondents' Memorandum (p. 99), it was declared:ChanRoblesVirtualawlibraryBesides, 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.
CARPIO, J.:
a. Medal of Valor Awardees;AFPR G 161-375 also enumerates those not qualified to be interred at the LNMB, namely:ChanRoblesVirtualawlibrary
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 deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or the Secretary of National Defense; and cralawlawlibrary
j. Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief[s] of Staff.
a. Personnel who were dishonorably separated/reverted/discharged from the service; and cralawlawlibraryIn 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.
b. Authorized personnel who were convicted by final judgment of an offense involving moral turpitude. (Emphasis supplied)
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.
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 state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution through the state's 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.14To 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 Workers' Union,15 held:ChanRoblesVirtualawlibrary
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.16Thus, for a classification to be valid and compliant with the Equal Protection Clause, it must (1) be based on substantial distinctions, (2) be 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.17chanrobleslaw
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 latter's 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.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.
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)
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 victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime. (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 Marcos' martial law regime. Interring Marcos on the hallowed grounds of the LNMB, which was established to show "the nation's 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.
Endnotes:
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.
2 258 Phil. 479 (1989).
3 Id. at 492.
4Joint Resolution, Lawyers' League for a Better Philippines v. President Aquino, G.R. No. 73748; People's 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 (2001).
6 Id. at 43-44.
7See Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, 239 Phil. 403 (1987).
8 Article II, Section 1, 1987 Philippine Constitution.
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.
11http://www.merriam-webster.com/dictionary/personnel?utm_campaign=sd&utm_medium=serp&utm_source=jsonld (last accessed 14 September 2016).
121-United Transport Koalisyon (1-UTAK) v. Commission on Elections, G.R. No. 206020, 14 April 2015, 755 SCRA 441; Biraogo v. The Phil. Truth Commission of 2010, 651 Phil. 374 (2010).
13 677 Phil. 636 (2011).
14 Id. at 660.
15 158 Phil. 60 (1974).
16 Id. at 87.
17Tiu v. CA, 361 Phil. 229 (1999).
18 487 Phil. 531 (2004).
19 Id. at 582-583. Citations omitted.
20Gonzalo v. Tarnate, Jr., 724 Phil. 198, 207 (2014), citing Avon Cosmetics, Inc. v. Luna, 540 Phil. 389, 404 (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."
22 910 F. Supp. 1460 (D. Haw. 1995).
23 103 F.3d 767 (9th Cir. 1996).
24Fort Bonifacio Dev't. Corp. v. Commissioner of Internal Revenue, 694 Phil. 7 (2012).
BRION, J.:
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 President's vast discretion in implementing laws.
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 departments, bureaus, and offices.9 The first sentence pertains to the President's 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 President's supervision over autonomous regions follows a similar language, thus:ChanRoblesVirtualawlibrary
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.
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.11chanrobleslaw
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,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 government's chief executive, but as its chief architect in foreign affairs.
Endnotes:
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.
4Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009. 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.
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 of the Philippines v. Caguioa, G.R. No. 174385, February 20, 2013
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 v. Province of Batangas, G.R. No. 148106, July 17, 2006.
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.
8 In Sanalakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, for instance, the Court noted:
chanRoblesvirtualLawlibraryIn 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:
chanRoblesvirtualLawlibrary.... 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 by express provision of the constitution control over all executive departments, bureaus and offices.55
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."56 Since then, reeling from the aftermath of martial law, our most recent Charter has restricted the President's powers as Commander-in-Chief. The same, however, cannot be said of the President's 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 President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's
... 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.57 [Underscoring supplied. Italics in the original.]
9 See de Leon v. Carpio, G.R. No. 85243, October 12, 1989, 178 SCRA 457, Blaquera, et. al. v. Alcasid, G.R. No. 109406, September 11, 1998.
10 See Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000, 336 SCRA 201, Taule v. Santos, Dadole et. al. v. COA, G.R. No. 90336, August 12, 1991, 200 SCRA 512.
11See Todd Garvey, 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.
12 37 U.S. 524 (1838).
13 424 U.S. 1 (1970).
14Supra note 6.
15 Article 7 of the ICCPR provides:
chanRoblesvirtualLawlibraryArticle 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 Article 12 and 13, CAT.
20 Article 14, CAT.
21 See The International Council on Human Rights Policy, Human Rights Standards: Learning from Experience, (2006) pp. 11, 14-18, available at http://www.ichrp.org/files/reports/31/120b_report_en.pdf
22 "Public office is a public trust. x x x"
23 In Manila Prince Hotel v. GSIS, G.R. No. 122156, February 3, 1997, the Court has distinguished between self-executing and non-self-executing provisions of the Constitution, viz:
chanRoblesvirtualLawlibraryAdmittedly, 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.
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.
25cralawred Gudani v. Senga Corona, G.R. No. 170165, August 15, 2006.
26 A political question refers to "those questions which, under the Constitution, are to be decided by the people in theic soveceign capacity, or in regard to which full disccetionacy authocity 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, G.R. No. L-10520, February 28, 1957.
MENDOZA, J.:
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:ChanRoblesVirtualawlibraryIt 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 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 government.""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.x x x
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]
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."Thus, a political question will not be considered justiciable if there are no constitutionally imposed limits on powers or functions conferred 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 President's 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."7chanrobleslaw
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.
x x x
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:ChanRoblesVirtualawlibrary. . . 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 non-judicial discretion; or the impossibility of a court's 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 non-judicial 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 non-justiciable 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]
A clear line demarcates a discretionary act from a ministerial one. Thus: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.
chanRoblesvirtualLawlibraryThe 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]
To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see Hyman, The American President, where the author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the President].To reiterate, President Duterte's 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.
More particularly, this case calls for the exercise of the President's 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 President's 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]
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.
- Medal of Valor Awardees;
- Presidents or Commanders-in-Chief;
- Secretaries of National Defense;
- Chiefs of Staff;
- General/Flag Officers of the AFP;
- 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;
- Former members of the AFP who laterally entered or joined the PCG and the PNP;
- Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerrillas;
- 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 cralawlawlibrary
- Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National defense and Chief of Staff.
Endnotes:
1 G.R. No. L-10520, February 28, 1957.
2 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003).
3 460 Phil. 830 ((2003).
4 Id. at 910-912.
5The Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015.
6Marcos v. Manglapus, 258 Phil. 479, 506-507 (1989)
7 Id. at 506.
8 Section 1, Article VII of the Constitution.
9Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January 12, 2016.
10 The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
11Biraogo v. The Philippine Truth Commission, 651 Phil. 394, 449 (2010).
12 G.R. No. 184045, January 22, 2014.
13 258 Phil. 479, 504-505 (1989).
14Intec Cebu, Inc., v. CA, G.R. No. 189851, June 22, 2016.
BERSAMIN, J.:
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.
- Medal of Valor Awardees
- Presidents or Commander-in-Chief, AFP
- Secretaries of National Defense
- Chiefs of Staff, AFP
- Generals/Flag Officers of the AFP
- Active and retired military personnel of the AFP to include 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.
- Former members of the AFP who laterally entered or joined the Philippine Coast Guard (PCG) and the Philippine National Police (PNP).
- Veterans of Philippine Revolution of 1890, WWI, WWII, and recognized guerillas.
- 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.
- Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff are authorized to be interred at the LNMB.
a. Personnel who were dishonorably separated/reverted/discharged from the service.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.
b. Authorized personnel who were convicted by final judgment of an offense involving moral turpitude.
Endnotes:
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.
2Marcos v. Manglapus, G.R. No. 88211 September 15, 1989, 177 SCRA 668, 696.
PEREZ, J.:
"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."2Pursuant 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:
The Former President was eventually interred in a Mausoleum, with his remains currently kept in a refrigerated crypt in Batac, Ilocos Norte.
- The body of President Marcos would be flown straight from Hawaii to Ilocos Norte province without any fanfare;3chanrobleslaw
- President Marcos would be given honors befitting a major, his last rank in the AFP;4 and
- The body of President Marcos will be buried in Ilocos.5
"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 victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime."15Thus, 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 hero's burial at the Libingan ng 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.17chanrobleslaw
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:
(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 omitted 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.
In the same vein, the regulation disallows the interment in the Libingan ng mga Bayani of the following:
- Medal of Valor awardees
- Presidents or commanders-in-chief AFP
- Secretaries of National Defense
- Chiefs of staff, AFP
- Generals/ flag officers of the AFP
- Active and retired military personnel of the AFP
- Former AFP members who laterally entered/joined the Philippine National Police and the Philippine Coast Guard
- Veterans of Philippine Revolution of 1896, World War I, World War II and recognized guerillas
- 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 Secretary of National Defense
- 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
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, 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.27chanrobleslaw
- Personnel who were dishonorably separated, reverted, and/or discharged from the service
- Authorized personnel who were convicted by final judgment of an offense involving moral turpitude
"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.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.
"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."
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.33chanrobleslawThe 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.
x x x x
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 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)
"... 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 vs. 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 vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. 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 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 men'-words which Webster said were the greatest contained in any written constitutional document." (pp. 411, 417; Emphasis supplied.).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.
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
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 Libangan 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 President's remains from Ilocos Norte to the LNMB.The Marcos internment at Libingan, borrowing the petitioners' 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.
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.
Justice Caguioa:
chanRoblesvirtualLawlibraryWas this a unilateral act on the part of the President or was this a request from the Marcos family?
Solicitor General Calida:
chanRoblesvirtualLawlibraryI 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 reconciliation is now manifested in the recent Oslo, Norway talks, Your Honor. He wants an inclusive government, Your Honor.
Justice Caguioa:
chanRoblesvirtualLawlibrarySo, 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 you're saying?
Solicitor General Calida:
chanRoblesvirtualLawlibraryYour Honor, I'm 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:
chanRoblesvirtualLawlibraryI 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?
Solicitor General Calida:
chanRoblesvirtualLawlibraryI do not agree with that, Your Honor.
Justice Caguioa:
chanRoblesvirtualLawlibraryWhen 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?x x x x
Solicitor General Calida:
chanRoblesvirtualLawlibraryWell, 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.
Justice Caguioa:
chanRoblesvirtualLawlibraryAnd 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?
Solicitor General Calida:
chanRoblesvirtualLawlibraryWell, the President will take every matter into consideration, Your Honor, and I assume he considered that too.
Justice Caguioa:
chanRoblesvirtualLawlibraryAlright, thank you.37
Endnotes:
1Marcos v. Manglapus, G.R. No. 88211, 27 October 1989.
2 Id.
3 Alvarez petition, p. 10
4 Id.
5 Ocampo petition, p. 6.
6 Memorandum issued by Secretary of National Defense Delfin N. Lorenzana dated 7 August 2016.
7 Id.
8 Ocampo petition, p. 8.
9 Id.
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.
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.
17 Ocampo Petition, p. 21, Lagman Petition, p. 12.
18 Rosales Petition, p. 20.
19 Id. at 29.
20 Lagman Petition, p. 17; Rosales Petition, p. 37, Rosales Petition, pp. 37-44.
21 Baniaga Petition, p. 14.
22 Id. at 14; Alvarez Petition, p. 11.
23 Id. at 13.
24 Rosales Petition, p. 60.
25cralawred Id. at 62.
26 Baniaga Petition, p. 11; Rosales Petition, p. 37; Ocampo Petition, p. 15.
27 Ocampo Petition, p. 25.
28 Rosales Petition, p. 68.
29 Id. at 67.
30 Ocampo Petition, p. 26.
31 Section 4, Rule 129 of the Revised Rules of Court:
chanRoblesvirtualLawlibrarySection 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. (Spouses Binarao v. Plus Builders, Inc., G.R. No. 154430, June 16, 2006).
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:ChanRoblesVirtualawlibraryJojo Binay - 5,416,140 votes33 Sinco, Philippine Political Law: Principles and Concepts, 10th Edition, pp. 8-9; Article II in the 1935 Constitution is now Sec. 1 of Article II of the 1987 Constitution.
Miriam Defensor Santiago - 1,455,532 votes
Grace Poe - 9,100,991 votes
Roy Señeres - 25,779 votes
34 Id. at 402-403.
35Tañada v. Cuenco, G.R. No. L-10520, 28 February 1957.
36 Annex "A" (Petition in G.R. 225984).
37 TSN of Oral Arguments, Wednesday 7 September 2016 10:00 a.m.
". . . 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 today's 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 . . ." | |
- 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.:
SECRETARY ALUN :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:ChanRoblesVirtualawlibrary
chanRoblesvirtualLawlibraryThe 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.25cralawred
Look, there is the courts. Pumunta kayo ng korte kasi yung taong hinahabol niyo, cadaver na (Go to the courts because the person you're after is already a cadaver). What do you want more from the guy? Patay nga (He's 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 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.President Duterte reiterated his position on Ferdinand E. Marcos' 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."27chanrobleslaw
. . . .
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). It's 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, that's 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
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.Despite the National Historical Commission's 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 Marcos' 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 Enriquez, Deputy Chief of Staff for Reservist and Retiree Affairs, pertaining to the Marcos burial.34chanrobleslaw
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. Marcos's rank promotion from Major in 1944 to Lt. Col. By 1947.
4. Some of Mr. Marcos's 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
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.
(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 ofheroes, patriots and other great men of the country shall likewise be interred[.]44 (Emphasis supplied) |
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;This change-relocating the nation's 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 re-interment of all of the dead war heroes to the Republic Memorial Cemetery transformed it the National Pantheon, covered by Republic Act No. 289.
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 not easily accessible to their widows, parents, children, relatives and friends; and cralawlawlibrary
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.
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 nation's esteem and reverence for her war dead;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.
NOW, THEREFORE, I, Ramon Magsaysay, President of the Philippines, by virtue of the powers vested in me by law, do hereby 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.
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 nation's war dead.49 Now, progressing from the renaming, and under AFP Regulations, the cemetery is no longer primarily a cemetery for the nation's 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.51chanrobleslaw
- General: This regulation prescribes the allocation of cemetery plots and construction of grave markers at the Libingan Ng Mga Bayani (LNMB).
. . . .
- 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:
- Medal of Valor Awardees
- Presidents of Commander-in-Chief, AFP
- Secretaries of National Defense
- Chiefs of Staff, AFP
- Generals/Flag Officers of the AFP
- 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.
- Former members of the AFP who laterally entered or joined the Philippine Coast Guard (PCG) and the Philippine National Police (PNP).
- Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerrillas.
- 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.
- Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff are authorized to be interred at the LNMB.47
JUSTICE LEONEN: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.
chanRoblesvirtualLawlibraryIf 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:
chanRoblesvirtualLawlibraryBecause they fall under the classification of probably dignitaries, Your Honors.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryWhy single out national artists?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryBecause they have contributed something to society, Your Honor.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryMaybe 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
However, the Lorenzana Memorandum and the Enriquez Orders to have the remains of Ferdinand E. Marcos transferred to the Libingan ng mga Bayani, today's 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.
(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[.]
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:ChanRoblesVirtualawlibraryThe 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 ''National 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.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:ChanRoblesVirtualawlibraryThe 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 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)
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 Philippines' 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 government's justification for the arrest and detention of Diokno and Aquino? The government's return to their petitions for habeas corpus claimed that they were "regarded as participants or as having given aid and comfort 'in the conspiracy to seize political and state power and to take over the government by force.'" 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....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:ChanRoblesVirtualawlibrary
. . . .
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 adjuncts of the Commanderin-Chief to enforce military discipline. Mr. Marcos had publicly pronounced the evidence against Ninoy as "not only strong but overwhelming" in a nation-wide 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. Marcos' military subordinates[.]84
Our martial law experience bore strange unwanted fruits, and we have yet to fmish 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 confmes of the restored rule of law.In Presidential Commission on Good Governance 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:ChanRoblesVirtualawlibrary
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
Having been charged with the herculean task of bailing the country out of the fmancial 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 co-equal 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 many martyrs produced by Martial Law were recognized in Bisig ng Manggagawa sa Concrete Aggregates, Inc v. National Labor Relations Commission:89
. . . .
The rationale of the exclusivity of such jurisdiction is readily understood. Given the magnitude of the past regime's 'organized pillage' and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market, it is a matter of sheer necessity to restrict access to the lower courts, which would have tied into knots and made impossible the Commission's 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
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 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, Bias 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[.]90Widespread "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:ChanRoblesVirtualawlibrary
"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.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:ChanRoblesVirtualawlibrary
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 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 ofpersons 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 Emile ('ENRILE') 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:ChanRoblesVirtualawlibrary1. Beatings while blindfolded by punching, kicking and hitting with the butts of rifles;All these forms of torture were used during 'tactical interrogation', 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
2. The 'telephone' where a detainee's 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 'wet submarine', where a detainee's head was submerged in a toilet bowl full of excrement;
5. The 'water cure' where a cloth was placed over the detainee's mouth and nose, and water poured over it producing a drowning sensation;
6. The 'dry submarine', where a plastic bag was placed over the detainee's head producing suffocation;
7. Use of a detainee's hands for putting out lighted cigarettes;
8. Use of flat-irons on the soles of a detainee's feet;
9. Forcing a detainee while wet and naked to sit before an air conditioner often while sitting on a block of ice;
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 cralawlawlibrary
14. Solitary confinement while handcuffed or tied to a bed.
"The district court had jurisdiction over Hilao's cause of action. Hilao's claims were neither barred by the statute of limitations nor abated by Marcos' 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 instructions 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 Estate's due process rights were not violated in either the determination of those damages or of compensatory damages."95The 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 government's request for transfer of funds held in multiple accounts by various foreign foundations in Swiss banks. This was transferred to an escrow account.
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. Marcos' 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.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.
In their answer, aside from admitting the existence of the subject funds, respondent likewise admitted ownership thereof. Paragraph 22 of respondents' answer stated:
chanRoblesvirtualLawlibrary 22. Respondents specifically DENY PARAGRAPH 23 insofar as it alleges that respondents clandestinely stashed the country's wealth in Switzerland and hid the same under layers and layers of foundations and corporate entities for being false, the truth being that respondents' aforesaid properties were lawfully acquired.
By qualifying their acqmsttion 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)
Section 2. Declaration of Policy. - ....Section 17 even declares a conclusive presumption as to particular victims and, at the same time, recognizes the complicity of Ferdinand E. Marcos:ChanRoblesVirtualawlibrary
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 victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.
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.
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.
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 on board. The passengers were reportedly on their way to an athletic event in Bongao.105As regards the atrocities committed by groups that maintained ties with the government under Marcos, the Transitional Justice and Reconciliation Commission reports:ChanRoblesVirtualawlibrary
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).Petitioners also gave this Court their first-hand 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:ChanRoblesVirtualawlibrary
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 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, women's bodies were mutilated by cutting off their nipples and breasts, ripping babies out of pregnant women's 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:
chanRoblesvirtualLawlibrary. . . [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
MRS. ROSALES:Her sister, petitioner Ma. Cristina Pargas Bawagan, testified that she was beaten, raped, and sexually abused:ChanRoblesVirtualawlibrary
chanRoblesvirtualLawlibraryMy 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 I'm 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:
chanRoblesvirtualLawlibraryBy Russian roulette, what is it, Ms. Rosales?
MRS. ROSALES:
chanRoblesvirtualLawlibraryThey 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, they'll shoot me then they won't ... then they won't be able to get confession from me cause I'll 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.
CHIEF JUSTICE SERENO:
chanRoblesvirtualLawlibraryHow long did these incidents transpire, the entire duration? You don't have to count the number of days ... (interrupted)
MRS. ROSALES:
chanRoblesvirtualLawlibraryNo, no, in fact, I don't 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 couldn't control the tremor in my body and they finally stop[ped]. I pretended I was dying but they knew I wasn't dying. So that's 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 don't know how long that took.107
MS. BAWAGAN:Petitioner Hilda Narciso testified that she was raped and sexually abused:ChanRoblesVirtualawlibrary
chanRoblesvirtualLawlibraryI 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, that's 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 today's 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
MS. NARCISO:Petitioner Liwayway Arce testified that during the Marcos regime, her father was killed, and her mother was tortured and sexually abused:ChanRoblesVirtualawlibrary
chanRoblesvirtualLawlibraryI 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. It's 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, fmger 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
MS. ARCE: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:ChanRoblesVirtualawlibrary
chanRoblesvirtualLawlibraryI'm Liwayway Arce, Your Honors. I'm 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 don't 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
ATTY. COLMENARES:Petitioner Trinidad Herrera Repuno testified that she was a member of the informal settlers' sector and was also a victim of torture:ChanRoblesVirtualawlibrary
chanRoblesvirtualLawlibraryAnd for the record, Your Honor, I'm 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.
CHIEF JUSTICE SERENO:
chanRoblesvirtualLawlibraryYou were eighteen years old. You were a student leader at that time, Congressman ... ?
ATTY. COLMENARES:
chanRoblesvirtualLawlibraryYes, 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 case are conclusively presumed to be human rights violation victims your Honor.111
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 po'y 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 ako'y makaalis, ako po ay hinuli noong April 27, 1977 at ako'y dinala dooon sa ... ang humuli ho sa akin intelligence ng Manila Police. At ako y kinahapunan tinurn-over sa Crame sa pangunguna po ni Eduardo Matillano. Nang ako'y napasok doon sa maliit na kuwarto, ako'y tinanong kung ano ang pangalan ko, sinabi ko ang pangalan ko at ako'y . . . 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. lyon 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 iyong kuryente lalong pumasok sa aking katawan. . . Nairelease po ako subalit naghina po ako hanggang sa ngayon. Nang ako'y medyo may edad na nararamdaman ko na ho iyong mga pampahirap, iyong pukpok dito sa likod ko habang ako'y 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 ako'y tumestigo laban kay Marcos[.]112Petitioner Carmencita Florentino, also from the informal settlers' sector, testified as to her forcible abduction, torture, and detention:ChanRoblesVirtualawlibrary
Magandang hapon po sa inyo. Aka po si Cannencita Florentino. Isa po akong leader ng urban poor. Ipinaglalaban naming 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 naming, kasalukuyan po alas syete ng gabi. . . . Niransack po iyong bahay naming pagkatapos kinaladkad po iyong asawa ko. lyong anak ko po na siyam na taong babae na nag iisa. Aka po, halos nahubaran na aka dahil pinipilit po akong arestuhin, kaming mag-asawa . . . At sinasabing ako'y 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 aka 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. lyong anak ko nasa custody daw ng mga sundalo. Ako pinaglipat-lipat kung saan saan doon 'di ko na matandaan e, may ESV, JAGO, na iniiterrogate aka, 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 doon sa siyam na taong anak ko na babae, nahiwalay sa akin. Masyado po ang pahirap na ginawa nita 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 aka nakabukod, bukod-bukod kami. Natawanan ko iyong aking mga officer, buntis ho, ikinulong din pala. Kaya sobra ho ang hirap na inabot naming 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.113Petitioner Felix Dalisay testified as to the lifelong trauma of the Martial Law years:ChanRoblesVirtualawlibrary
Magandang hapon po sa ating lahat. Felix Dalisay po, 64 years old. Sapilitan po akong hinuli, kinulong ng mga panahon ng Martial Law sometime '73, '74. 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 iba't ibang parte ng katawan. May pagkakataon po na minsan natadyakan po ako, tinadyakan po ako, bumagsak sa isang 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 naming 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 nag alit 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 ma'am na talagang maaawa ka. Grabe po. lyong 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 hoses nyo pero ahhh hindi ko maintindihan. So pakiusap lang sana sa totoo lang po Ma'am 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 naming 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 nailibing yan diyan, di po kami titigil sa pakikipaglaban namin sapagkat kami nagkaranas nang lupit ng Martial Law hanggang, habang buhay po naming dala yan. Salamat po.114All these accounts occurred during the Marcos regime. By no stretch of the imagination, then, can Ferdinand E. Marcos' memory serve as an inspiration, to be emulated by generations of Filipinos.
(a) conduct and support all kinds of research relating to Philippine national and local history;The National Historical Commission's 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."119chanrobleslaw
(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 country's historical movable and immovable objects;
(d) manage, maintain and administer national shrines, monuments, historical sites, edifices and landmarks of significant historico-cultural value; and cralawlawlibrary
(e) actively engage in the settlement or resolution of controversies or issues relative to historical personages, p1aces, dates and events.117
"With regard to Mr. Marcos' war medals, we have established that Mr. Marcos did not receive, as the wartime history of the Ang Mga Maharlika and Marcos' 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. Marcos' sanctioned biographies. In a leader's 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."The Court's 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.
"With respect to Mr. Marcos' guerilla unit, the Ang Mga Maharlika was never recognized during the war and neither was Mr. Marcos' leadership of it. Note that other guerilla units in northern Luzon were recognized, such as:
chanRoblesvirtualLawlibrary 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. Marcos' 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. Marcos' 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
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.President Duterte himself publicly admitted that Ferdinand E. Marcos was no hero.123 This much was also admitted by the Solicitor General:124
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 PVAO's 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 Emesto Enriquez, by command of General Visaya, issued a Directive to the Commanding General of the Philippine Army to prepare a grave for former President Marcos at the Libingan.122
SOLICITOR GENERAL CALIDA: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 modem Philippine history are likewise too pervasive to be overlooked.
chanRoblesvirtualLawlibraryHonorable 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.125cralawred
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;Further, in articulating the mandate of the People, Article 2, Section I of Proclamation No. 3 enumerated the many evils perpetuated during the Marcos regime, which the new government would be charged to dismantle:ChanRoblesVirtualawlibrary
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;
Public respondents neglect to examine the entirety of Ferdinand E. Marcos' 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.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:
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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.
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.Commissioner Jose Nolledo, sponsoring the provision that declares an independent foreign policy for the Philippines, also stated:ChanRoblesVirtualawlibrary
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
The Marcos regime has wrought great havoc to our country. It has intensified insurgency and is guilty of rampant violations of human rights and 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.128Former 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:ChanRoblesVirtualawlibrary
A beautiful irony which cannot be overlooked is the fact that this new Constitution was discussed, debated, and fmally 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 people's 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.
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 cotporations and, among others, they may not even appear as counsel before any court of justice.
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 cotpus 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
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.Thus, Section 2 of Republic Act No. 10368 states (2) two state policies: (i) "to acknowledge 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 during the Marcos regime; and (ii) to restore their honor and dignity.130chanrobleslaw
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 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 victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.
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.
Related to Article II, Section 11 is Section 9, which provides:ChanRoblesVirtualawlibraryARTICLE II . . . .
. . . .
State Policies
SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.
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:ChanRoblesVirtualawlibrary
SECTION 10. The State shall promote social justice in all phases of national development.These enhance the rights that are already enshrined in the Bill of Rights.133chanrobleslaw
Republic Act No. 10368 provides for both government policy in relation to the treatment of Martial Law victims as well as these victims' reparation and recognition. It creates a Human Rights Victims' 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.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.
(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:ChanRoblesVirtualawlibraryHuman rights violations during Martial Law were state-sponsored. Thus, Republic Act No. 10368, Section 3(c) defines Human Rights Victims as:ChanRoblesVirtualawlibrary(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 ofliberty 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 demonstration: 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 one's will or otherwise deprived of one's liberty, as defined in Republic Act No. 10350, otherwise known as the Anti-Enforced or Involuntary Disappearance Act of 2012;
(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 affmity, 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;'
(6) Any act or series of acts causing, committing and/or conducting the following:ChanRoblesVirtualawlibrary"(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 cralawlawlibrary
"(iii) Other violations and/or abuses similar or analogous to the above, including those recognized by international law."142
(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:ChanRoblesVirtualawlibrarySection 3(d) of this law defines the violators to include persons acting in an official capacity and/or agents of the State:ChanRoblesVirtualawlibrary(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
(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:ChanRoblesVirtualawlibraryIn 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.(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 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 cralawlawlibrary
(4) Any person or group/s of persons acting with the authorization, support or acquiescence of the State during the Marcos regime.144
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 nation's esteem and reverence for her war dead;Thus, Proclamation No. 86 is a recognition of the nation's 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.
NOW, THEREFORE, I, Ramon Magsaysay, President of the Philippines, by virtue of the powers vested in me by law, do hereby declare that the "Republic Memorial Cemetery" shall henceforth be called "LIBINGAN NG MGA BAYANI".
17. Crucial to the Satisfaction component of effective reparation is the official acknowledgement of the truth of the abuses and violations that the victim suffered, including an acknowledgement of the responsibility of the perpetrator as well as a public apology.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.
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 acknowledgement 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. Marcos' 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 NonRepetition 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 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
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 publico):ChanRoblesVirtualawlibraryThe State's 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 Congress' power to make, alter, and repeallaws.149chanrobleslaw[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:ChanRoblesVirtualawlibraryAgreements in violation of orden public 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.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)
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryI am not challenging whether the action of the President was regular or not, that's 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 Libingan's name is Libingan ng mga Bayani. So, can you explain that?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryBut, 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 defmition of a hero. As defined by the Lagman's Petition, Your Honor.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryExcuse 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.
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryYes, we stand by that, Your Honor.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryOkay.
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryHowever, 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:
chanRoblesvirtualLawlibraryA Medal of Valor awardee, is he or she a hero?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryMay I read into the records, Your Honor.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryA Medal of Valor, please do not ignore my question.
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryYes.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryA Medal of Valor awardee, is he a hero or not a hero? Is he or she a hero or not a hero?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryBased 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." ...
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryIs this a Presidential Decree, Counsel?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibrary... the definition, Your Honor, in the Lagman Petition ...
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryIs this a Presidential Decree?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryYes, Your Honor.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryWho issued the Presidential Decree?
. . . .
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryWell, a judicial notice can be taken that it was during the term of President Marcos, Your Honor.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryFerdinand Marcos, who is a Medal of Valor awardee, issued this Presidential Decree.
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryHowever, Your Honor, the Medal of Valor ...
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryNo, no, no, however, he had the power to issue the Presidential Decree, I'm not questioning that. Okay, my question here, which you ignored, is, is a Medal of Valor awardee a hero?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryBy the definition, Your Honor, he is a hero.
JUSTICE LEONEN:
chanRoblesvirtualLawlibrarySo, therefore, you are going back against what you said in the Comment ...
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryBut we will set aside that, Your Honor.
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryHow can you set that aside?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryWe will set it aside because ...
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryWhich part of Marcos will you not bury as a Medal of Valor awardee and which part will you bury?
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibraryBecause, Your Honor ...
JUSTICE LEONEN:
chanRoblesvirtualLawlibraryIt's the same person.
SOLICITOR GENERAL CALIDA:
chanRoblesvirtualLawlibrary... President Duterte's announcement is that he will allow the burial not as a hero, but as a former president, a former veteran and a soldier, that's all, Your Honor.151
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[.]156The phrase "other government agencies" includes public respondents in these consolidated cases.
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.157Further, memorialization is required under the law:ChanRoblesVirtualawlibrary
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.The Human Rights Violations Victims' 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:ChanRoblesVirtualawlibrary
A Memorial/Museum/Library shall be established in honor and in memory of the victims of human rights violations whose names 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.
Section 27. Human Rights Violations Victims' Memorial Commission. - There is hereby created a Commission to be known as the Human Rights Violations Victims' 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 during the Marcos regime.The concept of an effective remedy can be read from the law.
. . . .
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.
[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:ChanRoblesVirtualawlibraryPersuasive, 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 Human Rights; Article 2161 of the International Covenant on Civil and Political Rights; Article 6162 of the International Convention on the Elimination 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 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.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
PART IIThe 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 ICCPR's interpretation and contributes to achieving the full guarantee for respect of human rights required by the Constitution.
Article 2
. . . .
3. Each State Party to the present Covenant undertakes:
chanRoblesvirtualLawlibrary(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. (Emphasis supplied)
VI. Treatment of victimsThe 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:ChanRoblesVirtualawlibrary
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 victims' right to a remedy under the Basic Principles includes adequate, effective, and prompt reparation for harm suffered:
chanRoblesvirtualLawlibraryVII. Victims' right to remedies
11. Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to the following as provided for under international law:
chanRoblesvirtualLawlibrary
(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.
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. 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 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.Full and effective reparation includes Restitution, Compensation, Rehabilitation, Satisfaction, and Guarantees of Non-repetition. These are provided for under Principles 19 to 23:ChanRoblesVirtualawlibrary
. . . .
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, and return to one's place of residence, restoration of employment and return of property.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.
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:ChanRoblesVirtualawlibrary21. Rehabilitation should include medical and psychological care as well as legal and social services.
(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.
22. Satisfaction should include, where applicable, any or all of the following:ChanRoblesVirtualawlibrary23. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:ChanRoblesVirtualawlibrary
(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 victim's relatives, witnesses, or persons 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 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; (e) Public apology, including acknowledgement 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.
(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 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 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.
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)Likewise, a law is always superior to an administrative regulation, including those issued by the Armed Forces of the Philippines.178 The latter cannot frevail over the former. In Vide 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 President's administrative power. In Ople v. Tocrres: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.182chanrobleslawBecause 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.
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)
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.
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.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.
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."
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.187Ferdinand 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.
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.191In 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 "magnitude of the past regime's 'organized pillage' and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market." The evidence presented in this case reveals one more instance of this grand scheme. This Court-guardian of the high standards and noble traditions of the legal profession-has thus before it an opportunity to undo, even if only to a certain extent, the damage that has been done.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:ChanRoblesVirtualawlibrary
[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 Reople in defiance of the provisions of the 1973 Constitution, as amended.195The 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.
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. Marcos' body was recognized by this Court as borne by the duty to preserve and defend the Constitution and ensure the faithful execution of laws:ChanRoblesVirtualawlibrary
The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed.200Further, this Court recognized the President's residual powers for the purpose of, and necessary for, maintaining peace:ChanRoblesVirtualawlibrary
More particularly, this case calls for the exercise of the President's 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 President's 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.201In Sanlakas v. Reyes,202 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-Arroyo's resignation, the use of the President's 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 powers as Chief Executive and Commander-in-Chief.203 This Court examined the history of such powers:ChanRoblesVirtualawlibrary
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.204In these cases, the residual powers recognized by this Court were directly related to the President's 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 provision defines this Court's 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.ARTICLE VIII
Judicial Department
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 jurisdiction on the part of any branch or instrumentality of the Government.
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.
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:ChanRoblesVirtualawlibraryWhen 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 vs. 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 court's understanding of the political question has not been static or unbending. In Llamas v. Executive Secretary Oscar Orbos, this court held:ChanRoblesVirtualawlibraryWhile it is true that courts cannot inquire into the manner in which the President's 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.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 subjectinthe official actions of the body to the scrutiny and review of this court.211 (Emphasis supplied, citations omitted)
In our own jurisdiction, as early as 1902, dec des befote 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:ChanRoblesVirtualawlibraryIt is not about violations that may or may not be constitutional or statutory in character. It is about discretion gravely abused.Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.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."
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.
. . . .
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of government," the afore-quoted Section 1, Article, VIII of the Constitution egraves, 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 Commis ioner Roberto Concepcion:
chanRoblesvirtualLawlibrary. . . .
The first section starts with a sentence copied from former Constitution. It says:ChanRoblesVirtualawlibraryThe judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.The next provision is new in our constitutional law. I will read it first and explain.
I suppose nobody can question it.Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are regally 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 becaue 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 duty to settle matters of this nature, by claiming that such matters constitute a political question.217 (Emphasis supplied)
The requirement for a "case" or "controversy" locates the judiciary in the scheme of our constitutional order. It defmes our role and distinguishes this institution from the other constitutional organs.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.
. . . .
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 extra-legal or other similar considerations not cognizable by a court of justice." To be justiciable, the issues presented must be "'definite and concrete, touching the legal relations of parties having adverse legal interest;' 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 courts' duty to respect its co-equal branches of government's powers and prerogatives under the doctrine of separation of powers.
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 uponjudicial 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 coptroversies 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
In Integrated Bar of the Philippines v. Zamora, this Court defined legal standing as follows: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)
chanRoblesvirtualLawlibraryLegal 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."
Transcendental importance is not defmed in our jurisprudence, thus, in Francisco v. House of Representatives: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.
chanRoblesvirtualLawlibraryThere 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)
(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; |
(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 respondents' 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 |
The President's duty to faithfully execute the laws of the land Is enshrined in the Constitution. Thus, in Article VII, Section 17:ChanRoblesVirtualawlibraryARTICLE VII . . . .
Executive Department
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."
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 ony when they are not contrary to the laws or the Constitution.230chanrobleslaw
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 President's discretion.
Nevertheless, the President's discretion on the matter is not totally unfettered, nor the role of the NCCA and the CCP Boards meaningless.
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, 'discretion is not unconfmed and vagrant' but 'canalized within banks that keep it from overflowing.'
The President's 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:ChanRoblesVirtualawlibrarySec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.The President's 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
Endnotes:
1Almario v Executive Secretary, 714 Phil. 127, 163 (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].
2 OSG Comment, Annex 5.
3 OSG Comment, Annex 6.
4 OSG Comment, Annex 7.
5 OSG Memorandum, p. 20.
6 Id.
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).
10 OSG Memorandum, p. 10.
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).
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).
17 OSG Comment, Annex 5.
18 OSG Comment, Annex 6.
19 OSG Comment, Annex 7.
20 Memorandum (G.R. No. 226097), p. 10.
21 Id. at 11.
22 Id.
23 Id. at 11-12.
24 Id. at 12.
25cralawred Id. at 13.
26 Id. at 13-14.
27 Id. at 14.
28 OSG Memorandum, p. 20.
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).
30 Memorandum (G.R. No. 226097), p. 14.
31 Id. at 15.
32 Memorandum (G.R. No. 225973), p. 7; OSG Memorandum, p. 20.
33 OSG Memorandum, p. 20.
34 Memorandum (G.R. No. 225973), p. 8.
35 Id. at 7.
36 Id. at 8.
37 Id.
38 Id.
39 Id.
40 An Act Providing for the Construction of a National Pantheon for Presidents of the Philippines, National Heroes and Patriots of the Country.
41 Rep. Act No. 289, sec. 1.
42 Rep. Act No. 289, sec. 1.
43 Rep. Act No. 289, sec. 1.
44 Rep. Act No. 289, sec. 2(a).
45 OSG Memorandum, p. 10.
46 Proc. No. 423 (1957).
47 OSG Comment, Annex 7.
48 Exec. Order No. 77 (1954).
49 Proc. No. 86 (1954).
50 TSN, Oral Arguments, September 7, 2016, p. 142.
51 Id. at 57.
52 Id. at 152.
53 Ponencia, p. 19.
54 Rep. Act No. 289, sec. 2.
55 Rep. Act No. 289, sec. 2.
56 TSN, Oral Arguments, September 7, 2016, p. 14.
57Palanca v. Court of Appeals, G.R. No. 106685, December 2, 1994, 238 SCRA 593, 600-601 [Per J. Quiason, En Banc].
58See United States v. Chan, 37 Phil. 78, 84 (1917) [Per J. Torres, En Banc].
59National Power Corporation v. Province of Lanao del Sur, 332 Phil. 303, 323 (1996) [Per J. Panganiban, En Banc].
60 588 Phil. 651 (2008) [Per J. Chico-Nazario, En Banc].
61 Id. at 673-675, citing 25 R.C.L., pp. 810, 811.
62 OSG Memorandum, p. 54.
63 Id.
64 Id. at 55.
65 Id.
66 Id.
67 Id. at 54.
68 Id.
69 OSG Memorandum, p. 56.
70 Id.
71 Rep. Act No. 289, sec. 1.
72 OSG Comment, Annex 7.
73 Rep. Act No. 289, sec. 2(a).
74 Rep. Act No. 289, sec. 2(c).
75 Rep. Act No. 289, sec. 2(e).
76Marcos v. Manglapus, 258 Phil. 479 (1989) [Per J. Cortes, En Banc]; Galman v. Sandiganbayan, 228 Phil. 42 (1986) [Per J. Quisimbing, En Banc]; Fortun v. Macapagal-Arroyo, 684 Phil. 526 (2012) [Per J. Abad, En Banc]; People v. Pacificador, 406 Phil. 774 (2001) [Per J. de Leon, Jr., Second Division]; Buscayno v. Enrile, 190 Phil. 7 (1981) [Per C.J. Fernando, En Banc]; Republic v. Sandiganbayan, 453 Phil. 1059 (2013) [Per J. Puno, En Banc]; Republic v. Villarama, 344 Phil. 288 (1997) [Per J. Davide Jr., Third Division]; Salazar v. Achacoso, 262 Phil. 160 (1990) [Per J. Sarmiento, En Banc]; Biraogo v. Philippine Truth Commission, 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].
77 J. Gutierrez, Jr., Dissenting Opinion in Marcos v. Manglapus, 258 Phil. 479, 513-526 (1989) [Per J. Cortes, En Banc]; J. Francisco, Concurring and Dissenting Opinion in Dans v. People, 349 Phil. 434, 477-513 (1998) [Per J. Romero, Third Division]; J. Puno, Concurring and Dissenting Opinion in Presidential Ad Hoc Fact-Finding Committee v. Desierto, 375 Phil. 697, 748-754 (1999) [Per C.J. Davide, Jr., En Banc]; J. Vitug, Dissenting Opinion in Ang Bagong Bayani v. Commission on Elections, 412 Phil. 308, 347-356 (2001) [Per J. Panganiban, En Banc]; J. Sarmiento, Dissenting Opinion in In re Umil v. Ramos, 279 Phil. 266, 332-344 (1991) [Per Curiam, En Banc]; J. Davide, Separate Opinion in People's 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 (2003) [Per J. Carpio, En Banc]; J. Sarmiento, Dissenting Opinion in Baylosis v. Chavez, 279 Phil. 448, 470-483 (1991) [J. Narvasa, En Banc]; J. Teehankee, Concurring Opinion in Tan v. Commission on Elections, 226 Phil. 624, 648-651 (1986) [Per J. Alampay, En Banc].
78Marcos v. Manglapus, 258 Phil. 479 (1989) [Per J. Cortes, En Banc]; Republic v. Sandiganbayan, 565 Phil. 172 (2007) [Per J. Quisimbing, Second Division]; Republic v. Estate of Hans Merzi, 512 Phil. 425 (2005) [Per J. Tinga, En Banc]; Fortun v. Macapagal Arroyo, 684 Phil. 526 (2012) [Per J. Abad, En Banc]; Frivaldo v. Commission on Elections, 255 Phil. 934 (1989) [Per J. Cruz, En Banc]; First Phil. Holdings Corp. v. Trans Middle East Equities Inc., 622 Phil. 623 (2009) [Per J. Chico-Nazario, Third Division]; Associated Bank v. Spouses Montano, 619 Phil. 128 (2009) [Per J. Nachura, Third Division]; National Development Co. v. Philippine Veteran's Bank, 270 Phil. 349 (1990) [Per J. Cruz, En Banc]; Dizon v. Eduardo, 242 Phil. 200 (1988) [Per J. Teehankee, En Banc]; People v. Pacificador, 406 Phil. 774 (2001) [Per J. de Leon, Jr., Second Division]; PNCC v. Pabion, 377 Phil. 1019 (1999) Dissenting Opinion 21 G.R. Nos. 225973, 225984, 226097, 226116, 226117, 226120, and 226294 [Per J. Panganiban, Third Division]; Frivaldo v. Commission on Elections, 327 Phil. 521 (1996) [Per J. Panganiban, En Banc]; Carpio Morales v. Court of Appeals, G.R. No. 217126, November 10, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/november2015/217126-27.pdf> [Per J. Perlas-Bernabe, En Banc]; Heirs of Licaros v. Sandiganbayan, 483 Phil. 510 (2004) [Per J. Panganiban, Third Division]; Philippine Free Press Inc. v. Court of Appeals, 510 Phil. 411 (2005) [Per J. Garcia, Third Division]; Taruc v. Ericta, 250 Phil. 65 (1988) [Per J. Paras, En Banc]; Marcos v. Sandiganbayan, 357 Phil. 762 (1998) [Per J. Purisima, En Banc]; Republic v. Sandiganbayan, 453 Phil. 1059 (2013) [Per J. Puno, En Banc]; Biraogo v. Philippine Truth Commission, 651 Phil. 374 (2010) [Per J. Mendoza, En Banc].
79 J. Cruz, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 555 (1989) [Per Curiam, En Banc]; J. Padilla, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 556-558 (1989) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in Marcos v. Manglapus, 258-A Phil. 547, 559-560 (1989) [Per Curiam, En Banc]; C.J. Teehankee, Concurring Opinion in Olaguer v. Military Commission. No. 34, 234 Phil. 144, 164-179 (1987) [J. Gancayco, En Banc]; J. David, Dissenting Opinion in Tabuena v. Sandiganbayan, 335 Phil. 795, 878-886 (1997) [J. Francisco, En Banc]; J. Panganiban, Dissenting Opinion in Tabuena v. Sandiganbayan, 335 Phil. 795, 911-913 (1997) [J. Francisco, En Banc]; J. Kapunan, Dissenting Opinion in Lacson v. Perez, 410 Phil. 78, 95-107 (2001) [J. Melo, En Banc]; J. Cruz, Separate Opinion in In Re Umil v. Ramos, 279 Phil. 266, 306-311 (1991) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in In Re Umil v. Ramos, 279 Phil. 266, 332-344 (1991) [Per Curiam, En Banc]; J. Sandoval, Dissenting Opinion in Sanlakas v. Reyes, 466 Phil. 482, 534-548 (2004) [Per J. Tinga, En Banc]; J. Sandoval, Concurring Opinion in Lambino v. Commission on Elections, 536 Phil. 1, 154-186 (2006) [Per J. Carpio, En Banc]; J. Puno, Separate Opinion in Republic v. Sandiganbayan, 454 Phil. 504, 551-630 (2003) [Per J. Carpio, En Banc]; J. Cruz, Dissenting and Concurring Opinion in In Re Umil v. Ramos, 265 Phil. 325, 355 (1990) [Per Curiam, En Banc]; J. Sarmiento, Dissenting Opinion in In Re Umil v. Ramos, 265 Phil. 325, 355-365 (1990) [Per Curiam, En Banc]; C.J. Panganiban, Concurring Opinion in David v. Macapagal-Arroyo, 522 Phil. 705, 812-813 (2006) [Per J. Sandoval-Gutierrez, En Banc]; J. Cruz, Dissenting Opinion in Sarmiento v. Mison, 240 Phil. 505, 541-546 (1987) [J. Padilla, En Banc].
80Marcos v. Manglapus, 258-A Phil. 547 (1989) [Per Curiam, En Banc]; Republic v. Marcos-Manotok, 681 Phil. 380 (2012) [Per J. Sereno, Second Division]; E. Razon, Inc. v. Philippine Ports Authority, 235 Phil. 223 (1987) [Per J. Fernan, En Banc]; Presidential Commission on Good Government v. Peña, 243 Phil. 93 (1988) [Per C.J. Teehankee, En Banc]; Liwayway Publishing v. Presidential Commission on Good Governance, 243 Phil. 864 (1988) [Per C.J. Teehankee, En Banc]; Quisimbing v. Sandiganbayan, 591 Phil. 633 (2008) [Per J. Carpio-Morales, Second Division]; Samahang Manggawang Rizal Park v. National Labor Relations Commission (1991) [Per J. Cruz, First Division]; Republic v. Sandiganbayan, 499 Phil. 138 (2005) [Per Sandoval-Gutierrez, Third Division]; Phil. Coconut Producers Federation Inc. v. Presidential Commission on Good Governance, 258-A Phil. 1 (1989) [Per J. Narvasa, En Banc]; Cuenca v. Presidential Commision on Good Government, 561 Phil. 235 (2007) [Per J. Velasco Jr., Second Division]; Romualdez v. Regional Trial Court, G.R. No. 104960, September 14, 1993, 226 SCRA 408 [Per J. Vitug, En Banc]; Sison v. People, 320 Phil. 112 (1995) [Per J. Puno, Second Division]; Phil. Overseas Telecom. Corp. v. Africa (2013) [Per J. Bersamin, First Division]; Vinzons-Masagana v. Estrella, 278 Phil. 544 (1991) [Per J. Paras, En Banc]; Republic v. Sandiganbayan, 310 Phil. 402 (1995) [Per C.J. Narvasa, En Banc]; Secretary of Finance v. Ilarde, 497 Phil. 544 (2005) [Per J. Chico-Nazario, En Banc].
81 C.J. Teehankee, Concurring Opinion in Bataan Shipyard v. Presidential Commission on Good Government, 234 Phil. 180, 238-249 (1987) [Per J. Narvasa, En Banc]; J. Bersamin, Concurring Opinion in Republic v. Cojuanco, 689 Phil. 149, 173-179 (2012) [Per J. Abad, En Banc]; C.J. Teehankee, Concurring Opinion in Tuason v. Register of Deeds, 241 Phil. 650, 663-665 (1988) [Per J. Narvasa, En Banc]; J. Kapunan, Dissenting Opinion in Lacson v. Perez, 410 Phil. 78, 95-107 (2001) [Per J. Melo, En Banc]; J. Teehankee, Concurring Opinion in In re Agcaoili v. Enrile, 226 Phil. 611, 622-624 (1986) [Per J. Narvasa, En Banc]; J. Cruz, Dissenting Opinion in DBP v. Judge Pundogar, G.R. No. 96921, January 29, 1993, 218 SCRA 118 [Per J. Romero, En Banc].
82 Memorandum (G.R. No. 225973), p. 98, citing Republic v. Sandiganbayan, 454 Phil. 504 (2003) [Per J. Carpio, En Banc].
83 242 Phil. 200 (1988) [Per J. Teehankee, En Banc].
84 Id. at 202-204.
85 495 Phil. 372 (2005) [Per J. Tinga, Second Division].
86 Id. at 375.
87 243 Phil. 93 (1988) [Per C.J. Teehankee, En Banc].
88 Id. at 106-107.
89 G.R. No. 105090, September 16, 1993, 226 SCRA 499 [Per J. Puno, Second Division].
90 Id. at 511-512.
91 910 F. Supp. 1460 (D. Haw. 1995).
92 Id. at 4-5.
93 Rosales Memorandum, p. 104.
94 103 F. 3d 762 (9th Cir. 1996).
95 Id. as cited in Memorandum (G.R. No. 225973), p. 105.
96Federal 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.
97 453 Phil. 1059 (2003) [Per J. Corona, En Banc].
98 Id. at 1131-1143.
99Mercado v. Santos, 66 Phil. 215, 222 (1938) [Per J. Laurel, En Banc].
100 TSN, Oral Arguments, August 31, 2016, p. 206, Statement of Chairperson Lina Castillo Sarmiento of the Human Rights Victims' Claims Board.
101Report of the Transitional Justice and Reconciliation Commission, 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.
105 Id. at 32.
106 Id. at 31-37.
107 TSN, Oral Arguments, August 31, 2016, pp. 200-201.
108 Id. at 203-204.
109 Id. at 203.
110 Id.
111 Id. at 208-209.
112 Id. at 209-211.
113 Id. at 208-212.
114 Id. at 214-215.
115 Rep. Act No. 10086, sec. 5.
116 Rep. Act No. 10086, sec. 5.
117 Rep. Act No. 10086, sec. 5.
118 Rep. Act No. 10086, sec. 7(h).
119 Rep. Act No. 10086, sec. 13.
120 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).
121 Id. at 24.
122 OSG Memorandum, pp. 19-20.
123 Aries Joseph Hegina, Duterte won't change mind on hero's 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).
Fiona Nicolas, Duterte defends hero's burial for Marcos: A matter of enforcing the law, CNN Philippines, August 18, 2016 <http://cnnphilippines.com/news/2016/08/18/duterte-defends-marcosheros-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 8.
126 G.R. No. 73748, May 22, 1986 <http://elibrary.judiciary.gov.ph/dtSearch/dtisapi6.dll?cmd=getdoc&DocId=142363&Index=%2aaa1de0751c9cff7439815a4b27e3ab58&HitCount=5&hits=4+d+38+71+el+&SearchForm=C%3a%5celibrev%5celibsearch%5cdtform>, as cited in Saturnino V. Bermudez, 229 Phil. 185, 188 (1986) [Per Curiam, En Banc].
127 Rosales et al., Memorandum (G.R. No. 225973), p. 109.
128 Id.
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-presidentof-the-constitutional-commission-at-the-final-session-october-15-1986> (visited November 7, 2016).
130See also Implementing Rules and Regulations of Rep. Act No. 10368, sec. 3(a):
chanRoblesvirtualLawlibrarySECTION 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:
131See also Implementing Rules and Regulations of Rep. Act No. 10368, sec. 3(b) and (c):
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 victims' honor and dignity[.]
chanRoblesvirtualLawlibrarySECTION 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:
chanRoblesvirtualLawlibrary. . . .
132 Rep. Act No. 10368, sec. 2.
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.
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 McKinley's Instructions of April 7, 1900.
134 Rep. Act No. 10368, sec. 2.
135 Rep. Act No. 10368, sees. 8 to 14 provide:
chanRoblesvirtualLawlibrarySECTION 8. Creation and Composition of the Human Rights Victims' Claims Board. - There is hereby created an independent and quasi-judicial body to be known as the Human Rights Victims' Claims Board, hereinafter referred to as the Board. It shall be composed of nine (9) members, who shall possess the following qualifications:
chanRoblesvirtualLawlibrary
(a) Must be of known probity, competence and integrity; (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 Victims' 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. cEAIHa
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:
chanRoblesvirtualLawlibrary(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; and cralawlawlibrary
(d) Perform other duties that may be assigned by the Board.
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 StaffHead 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 Rep. Act No. 10368, sec. 10 provides:
chanRoblesvirtualLawlibrarySECTION 10. Powers and Functions of the Board. - The Board shall have the following powers and functions:
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(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 Rep. Act No. 10368, sec. 10(d) provides:
chanRoblesvirtualLawlibrarySECTION 10. Powers and Functions of the Board. - The Board shall have the following powers and functions:
chanRoblesvirtualLawlibrary. . . .
(d) Approve with finality all eligible claims under this Act[.]
138 Rep. Act No. 10368, 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 (MDL No. 840, CA No. 86-0390) 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 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:
chanRoblesvirtualLawlibrary. . . .
(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.
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 violationls 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. Peñalties; Applicability of the Revised Peñal 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 have been found gnilty of committing any or all of the prohibited acts stated in the preceding paragraph, or those acts punishable under the Revised Peñal Code, shall be penalized under the pertinent provisions in the Code and relevant special penal laws.
139 Rep. Act No. 10368, sec. 16, in relation to the definition of victim in sec. 3 (b), provides:
chanRoblesvirtualLawlibrarySECTION 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.
140 Rep. Act No. 10368, sec. 17 provides:
chanRoblesvirtualLawlibrarySECTION 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. 86-0390) 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 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.
141 Rep. Act No. 10368, sec. 18 provides:
chanRoblesvirtualLawlibrarySECTION 18. Motu Proprio Recognition. - The Board may take judicial notice motu proprio of individual persons who suffered human rights violations as defmed herein and grant such persons recognition as HRVVs and included in the Roll of Victims as provided for in Section 26 hereof.
142 Rep. Act No. 10368, sec. 3(b).
143 Rep. Act No. 10368, sec. 3(c).
144 Rep. Act No. 10368, sec 3(d).
145 Rep. Act No. 10368, sec. 3(c).
146 Commission on Human Rights Memorandum, pp. 9-16.
147 540 Phil. 389 (2006) [Per J. Chico-Nazario, First Decision].
148 Id. at 404-405.
149Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 (1927) [Per J. Malcolm, Second Division] citing Cooley's Constitutional Limitations, 7th ed., pp. 126 131, 157-162.
150 CONST., art. VII, sec. 17.
151 TSN, Oral Arguments, September 7, 2016, pp. 156-159.
152 Rep. Act No. 10368, sec. 2, par. 2.
153 Rep. Act No. 10368, sec. 2, par. 2.
154 Rep. Act No. 10368, sec. 19.
155 Rep. Act No. 10368, sec. 19(c). The monetary value shall be dependent on a point system.
156 Rep. Act No. 10368, sec. 5.
157 Rep. Act No. 10368, sec. 21.
158 G.R. No. 212081, February 23, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/february2015/212081.pdf> [Per J. Perlas-Bernabe, First Division].
159 Id. at 10-11, citing Atienza v. Villarosa, 497 Phil. 689 (2005) [Per J. Callejo, Sr., En Banc].
160 Universal Declaration of Human Rights, art. 8 provides:
chanRoblesvirtualLawlibraryArticle 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:
chanRoblesvirtualLawlibraryArticle 2.162 International Convention on the Elimination of All Forms of Racial Discrimination, art. 6 provides:
- Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- 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.
- Each State Party to the present Covenant undertakes:
chanRoblesvirtualLawlibrary
(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.
chanRoblesvirtualLawlibraryArticle 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.
163 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 14 provides:
chanRoblesvirtualLawlibraryArticle 14.164 Convention on the Rights of the Child, art. 39 provides:
- 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.
- Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.
chanRoblesvirtualLawlibraryArticle 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, selfrespect and dignity of the child.
165 Hague Convention Respecting the Laws and Customs of War on Land, art. 3 provides:
chanRoblesvirtualLawlibraryArticle 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:
chanRoblesvirtualLawlibraryArticle 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:
chanRoblesvirtualLawlibraryArticle 68. Protection of the victims and witnesses and their participation in the proceedings168 Rome Statute of the International Criminal Court, art. 75 provides:
- The Court shall take appropriate measures to protect the safety, physical and psychological wellbeing, 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.
- 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.
- 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.
- 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.
- 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.
- A 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.
chanRoblesvirtualLawlibraryArticle 75. Reparations to victimsA State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.
- 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.
- 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.
- 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.
- 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.
169 Rome Statute of the International Criminal Court, art. 75.
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 Augnst 30, 2011.
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.
172 Basic Principles, 7th whereas clause provides:
chanRoblesvirtualLawlibraryEmphasizing 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[.]
173 Rep. Act No. 10368, sec. 2
174See Memoradum (G.R. No. 225973), p. 47; Memorandum Commission on Human Rights Memorandum, p. 7.
175 CONST., art II, sec. 11.
176 CONST., art. II, sec. 11.
177League of Cities of the Phils. v. Commission on Elections, 592 Phil. 1, 62 (2008) [Per J. Carpio, En Banc].
178China Banking Corp. v. Court of Appeals, 333 Phil. 158, 173 (1996) [Per J. Francisco, Third Division].
179 332 Phil. 20 (1996) [Per J. Panganiban, En Banc].
180 Id. at 36.
181 354 Phil. 948 (1998) [Per J. Puno, En Banc].
182 Id. at 967-968.
183 Ponencia, pp. 51-52.
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.
187 Id. at 60-61.
188 258 Phil. 479 (1989) [Per J. Cortes, En Banc].
189 Id. at 492.
190 Id.
191 Id. at 509.
192 515 Phil. 1 (2006) [Per J. Carpio Morales, En Banc].
193 Id. at 48-49.
194 406 Phil. 1 (2001) [Per J. Puno, En Banc].
195 Id. at 43-44. See also Lawyers' League for a Better Philippines v. Aquino, G.R. No. 73748, May 22, 1986 <http://elibrary.judiciary.gov.ph/dtSearch/dtisapi6.dll?cmd=getdoc&DocId=l42363&Index=%2aaa1de0751c9cff7439815a4b27e3ab58&HitCount=5&hits=4+d+38+71+el+&SearchForm=C%3a%5celibrev%5celibsearch%5cdtform>, as cited in Saturnino V. Bermudez, 229 Phil. 185, 188 (1986) [Per Curiam, En Banc].
196 Solicitor General, Consolidated Comment, page 5.
197 160 Phil. 637 (1975) [Per J. Fernando, En Banc].
198 Id. at 644.
199 258 Phil. 479 (1989) [Per J. Cortes, En Banc].
200 Id. at 504, 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 504-505, citing Rossiter, The American Presidency.
202 466 Phil. 482 (2004) [Per J. Tinga, En Banc].
203 Id. at 522.
204 Id. at 518.
205 J. Perez, Concurring Opinion, p. 9.
206 Id. at 10.
207 Id. at 12.
208 Id.
209 Id.
210 G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> [Per J. Leonen, En Banc].
211 Id. at 20-23.
212 J. Brion, Concurring Opinion, p. 2.
213 Id.
214 Id. at 3.
215 Id.
216 460 Phil. 830 (2003) [Per J. Carpio-Morales, En Banc].
217 Id. at 881-884.
218 J. Leonen, Dissenting Opinion in Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, April 8, 2014, 721 SCRA 146, 731-847 [Per J. Mendoza, En Banc].
219 Id. at 738-739.
220 Ponencia, p. 11.
221People v. Vera, 65 Phil. 56, 87 (1937) [Per J. Laurel, First Division].
222 542 Phil. 443 (2007) [Per J. Carpio Morales, Second Division].
223 Id. at 455-456.
224In Re Supreme Court Judicial Independence v. Judiciary Development Fund (Resolution), UDK-15143, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/15143.pdf> [Per J. Leonen, En Banc], citing Biraogo v. Philippine Truth Commission, 651 Phil. 374, 441 (2010) [Per J. Mendoza, En Banc], in turn citing Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency, 591 Phil. 393,404 (2008) [Per J. Velasco, Jr., En Banc], Tatad v. Secretary of the Department of Energy, 346 Phil. 321, 359 (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 Resolution, UDK-15143, January 21, 2015 [Per J. Leonen, En Banc].
226 Id. at 9-10.
227 Ponencia, p. 13.
228Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/205728.pdf> 15-18 [Per J. Leonen, En Banc].
229 714 Phil. 127 (2013) [Per J. Leonardo-de Castro, En Banc].
230 CIVIL CODE, art. 7.
231Almario v. Executive Secretary, 714 Phil. 127, 163-164 (2013) [Per J. Leonardo-de Castro, En Banc].
232 Ponencia, p. 49.
233 Ocampo Memorandum (G.R No. 225973), p. 5, citing Nick Davies, 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-nickdavies> (visited November 7, 2016).
CAGUIOA, J.:
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:ChanRoblesVirtualawlibraryAs 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:ChanRoblesVirtualawlibraryx 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 non-judicial discretion; or the impossibility of a court's 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)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 non-judicial 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 non-justiciable 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)
"It is not easy, however, to define the phrase 'political question', 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 full discretionary authority has been delegated to the legislative or executive branch of the government." x x xThe 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 his having been a former President, a Medal of Valor Awardee, a member of the retired military personnel, and a war veteran.20chanrobleslaw
x x x x
"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, 'to the end that the government may be one of laws and not [of] men' - words which Webster said were the greatest contained in any written constitutional document." x x x19chanroblesvirtuallawlibrary
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 'judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable x x x.' 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, '[t]here must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.' Related to the requirement of an actual case or controversy is the requirement of 'ripeness,' meaning that the questions raised for constitutional scrutiny are already ripe for adjudication. 'A 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.' 'Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot questions.' (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 petitioners' assertion of legally enforceable rights that may be infringed upon by the subject interment, on the one hand, and the Solicitor General's insistence on the President's 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.28chanrobleslaw
[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 Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.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 Court's expanded jurisdiction, the validity of the President's 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.
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.42chanroblesvirtuallawlibrary
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.In the same case, however, the Court recognized that hierarchy of courts is not an iron-clad rule. Direct invocation of this Court's jurisdiction may be allowed for special, important and compelling reasons clearly spelled out in the petition, such as: (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; (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.46chanrobleslaw
x x x x
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 writ's 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 x45chanroblesvirtuallawlibrary
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.48chanroblesvirtuallawlibraryFurthermore, time was of the essence in this case. The public pronouncement of Presidential Spokesman Emesto 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 President's 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.
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, notwithstanding 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.
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.This power is, in turn, traced by the Solicitor General to the President's 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:ChanRoblesVirtualawlibrary
(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.
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 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.61chanrobleslawCHAPTER 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, workingmen's village and other improvements for the public benefit.
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 LNMB's purpose as a national shrine, it cannot be undertaken as no change in the said specific purpose has been validly made.
(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. |
JUSTICE CARPIO:For his part, the Solicitor General stood firm and insisted that the subject interment serves a public purpose, when interpellated by Justice Leonen:ChanRoblesVirtualawlibraryIf you bury somebody in the Libingan, you have to spend money, correct?
ATTY. COLMENARES:Yes, Your Honor.
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?
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 that's against the Constitution because you're 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 petitioner's contention that R.A. 289 has a standard, the President's directive cannot amend R.A. 289 and now must therefore also be struck down, Your Honor.
JUSTICE CARPIO:Okay, thank you counsel, that's all.65
SOLICITOR GENERAL CALIDA: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.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.
SOLICITOR GENERAL CALIDA: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?
SOLICITOR GENERAL CALIDA:Yes, Your Honor.
JUSTICE LEONEN:Can any member of the public use the Libingan?
SOLICITOR GENERAL CALIDA:Not any member, Your Honor. It should be within the guidelines of the AFP Regulations.
JUSTICE LEONEN:So is it still public use?
SOLICITOR GENERAL CALIDA:It will be public use, Your Honor, depending on the observance of the classifications which allow certain persons to be interred at the Libingan ng mga Bayani.
JUSTICE LEONEN:But if it's not public, if only a few individuals, select individuals, can use the Libingan, therefore, it is not public use.
SOLICITOR GENERAL CALIDA: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?
SOLICITOR GENERAL CALIDA:Because the cemetery can only accommodate so much, it cannot accommodate the entire public of the Philippines, Your Honor.
JUSTICE LEONEN:Okay, we'll 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...
SOLICITOR GENERAL CALIDA:If there is a public purpose for it, yes, Your Honor.
JUSTICE LEONEN:Yes. So the key there is public purpose.66
As regards the legal feasibility of appropriating public funds for a private purpose, the principle according to Ruling Case Law, is this:ChanRoblesVirtualawlibraryWhile the Solicitor General argues that expenditures for the interment are supported by AFP appropriations, the President's discretion in 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?"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 interests 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:ChanRoblesVirtualawlibrary"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:ChanRoblesVirtualawlibrary"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.)69chanroblesvirtuallawlibrary
JUSTICE CAGUIOA: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 President's 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.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?
SOLICITOR GENERAL CALIDA: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?
SOLICITOR GENERAL CALIDA:To the heirs of President Marcos, Your Honor.70
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.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 Court's 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.
Among such special powers and duties shall be:
chanRoblesvirtualLawlibraryxxxx
[(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 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.72chanroblesvirtuallawlibrary
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."73chanrobleslaw
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 President's 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.
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.
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 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:ChanRoblesVirtualawlibraryOn the other hand, in Sanlakas v. Reyes,79 this Court made the following observation on "residual powers":ChanRoblesVirtualawlibrary"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 x78chanroblesvirtuallawlibrary
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.80chanroblesvirtuallawlibraryInasmuch 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.
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.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:ChanRoblesVirtualawlibrary
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 Court's 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 President's 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. or 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 whether or not there bas 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. 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 [G.R. No. L-33964, December 11, 1971,42 SCRA 448] that:ChanRoblesVirtualawlibraryArticle 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, 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.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.
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 479-480].
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 President's decision.84 (Emphasis supplied)
The 1987 Constitution expands the concept of judicial review by providing that "[T]he 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." 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.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 non-existence 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.
x x x x
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 President's 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 President's 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 President 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)
JUSTICE CAGUIOA:"[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 govemor.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 President's decision as essential to this supposed national healing.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...
ATTY. RAFAEL-ANTONIO:Your Honor...
JUSTICE CAGUIOA:That is the basis of my question.
ATTY. RAFAEL-ANTONIO: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?
ATTY. RAFAEL-ANTONIO:Yes, Your Honor.89
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.
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 P10.65-M 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 KLEPTOCRACY.148 (All caps and its Emphasis supplied)This Court also observed the very thorough presentation of the Solicitor General's evidence, viz:ChanRoblesVirtualawlibrary
The following presentation very clearly and overwhelmingly show in detail how both respondents clandestinely stashed away the country's 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 x149chanroblesvirtuallawlibraryMarcos 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:ChanRoblesVirtualawlibrary
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 country's wealth, viz:ChanRoblesVirtualawlibrary
x x x Given the magnitude of the [Marcos] regime's "organized pillage" and the ingenuity of the plunderers and pillagers with the assistance of the experts and best legal minds available in the market, it is a matter of sheer necessity to restrict access to the lower courts, which would have tied into knots and made impossible the Commission's 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.
Mr. Marcos's military record is fraught with myths, factual inconsistencies, and lies. The rule in history is that when a claim is disproven - such as Mr. Marcos's 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 Marcos's 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 Court's and the United States courts' 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.
3. Each State Party to the present Covenant undertakes:In addition, in interpreting the State's 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 Charter179. In other words, the Court can rely on what are called subsidiary sources of international law such as judicial decisions and teachings of MHQPs.
chanRoblesvirtualLawlibrary(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 x x x.
Article 4. Conduct of organs of a 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.
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 m accordance with the internal law of the State.
Article 2 (3). Each State Party to the present Covenant undertakes: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.
chanRoblesvirtualLawlibrary(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;
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 retraumatization 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."
"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."For these reasons, I vote to grant the petitions.- Elie Wiesel, Night217
Endnotes:
1 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.
2 Lagman Petition, p. 3, par. 5.
3 G.R. 205728, January 21, 2015, 747 SCRA 1.
4 258 Phil. 479 (1989).
5 392 Phil. 618 (2000).
6 406 Phil. 1 (2001).
7 460 Phil. 830 (2003).
8 OSG Consolidated Comment, I.A., p. 24.
9 Supra, par. 55, p. 24.
10 OSG Consolidated Comment, par. 51, p. 24; Public Respondent's Memorandum, par. 55, p. 27.
11 623 Phil. 63 (2009).
12 721 Phil. 416 (2013).
13 103 Phil. 1051 (1957).
14 Supra note 7, at 910.
15 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.
16 Supra note 7, at 911-912.
17 Id.
18 Supra note 13.
19 Id. at 1066-1067 (Emphasis supplied).
20 OSG Consolidated Comment, par. 60. p. 25; Public Respondents' Memorandum, par. 62, p. 29.
21 OSG Consolidated Comment, par. 61, p. 26; Public Respondents' Memorandum, par. 63, p. 29.
22 OSG Consolidated Comment, par. 3, p. 5.
23Supra, Prefatory Statement, pp. 3-5.
24Francisco v. The House of Representatives, supra note 7, at 889-890.
25cralawred Belgica v. Ochoa, supra note 12, at 518-519.
26 Id. at 519, citing Joya v. Presidential Commission on Good Government, 296-A Phil. 595, 602 (1993).
27 Id. at 519-520.
28Gov't now preparing for Marcos burial at Libingan, available at <http://www.rappler.com/nation/142266-philippines-malacanang-preparations-ferdinand-marcos-burial-libingan-ng-mga-bavani>, last accessed on October 17, 2016.
29Araullo v. Aquino, 737 Phil. 457, 535 (2014), citing Black's Law Dictionary, 941 (6th Ed. 1991).
30Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, etc. April 8, 2014, 721 SCRA 146, citing Anak Mindanao Party-list Group v. Ermita, 558 Phil. 338, 350 (2007).
31Galicto v. Aquino, 683 Phil. 141, 170 (2012).
32 450 Phil. 744, 803 (2003).
33Francisco v. The House of Representatives, supra note 7, at 895.
34Osmena III v. PSALM, G.R. No. 212686, September 28, 2015, p. 9.
35Chavez v. JBC, 691 Phil. 173, 196 (2012).
36Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 589 Phil. 387, 486 (2008).
37 See Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), id. at 487.
38David v. Macapagal-Arroyo, 522 Phil. 705, 763 (2006).
39Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 442 (2010).
40Jardeleza v. Sereno, G.R. No. 213181, August 19, 2014, 733 SCRA 279, 328, citing Araullo v. Aquino, supra at 531; Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015.
41 Supra note 29.
42 Id. at 531.
43 Supra note 3.
44 693 Phil. 399, 412 (2012).
45 Supra note 3, at 42-43.
46The Diocese of Bacolod v. COMELEC, id. at 44-49.
47 G.R. No. l12497, August 4, 1994, 235 SCRA 135.
48 Id. at 140.
49Palace: Hero's burial for Marcos to proceed unless there's a TRO, available at <http://www.gmanetwork.com/news/story/577948/news/nation/palace-hero-s-burial-for-marcos-toproceed-unless-there-s-a-tro>, last accessed on October 17, 2016.
50Palace 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.
51Duterte 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.
52The Diocese of Bacolod v. COMELEC, supra note 3, at 59-60, citing Spouses Chua v. Ang, 614 Phil. 416, 425-426 (2009).
53 654 Phil. 755, 761-762 (2011), citing Republic v. Lacap, G.R. No. 158253, March 2, 2007.
54Duterte 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-marcosburial-at-libingan-ng-mga-bayani>, last accessed on October 17, 2016; Duterte: Follow the law on hero's burial for Marcos available at <http://news.abs-cbn.com/news/08/ll/16/duterte-follow-the-lawon-heros-burial-for-marcos>, last accessed on October 17, 2016.
55 See Perez v. Court of Appeals, 516 Phil. 204, 209 (2006); Dueñas, Jr. v. House of Representative Electoral Tribunal, 610 Phil. 730, 760 (2009).
56 See Spouses Balangauan v. CA, et al., 584 Phil. 183 (2008); Banal III v. Panganiban, et al., 511 Phil. 605 (2005); Republic of the Philippines v. COCOFED, 423 Phil. 735 (2001).
57 OSG Comment 131-138, pp. 42-44.
58 OSG Comment 131-138, pp. 42-44.
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 declaring 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 141, Sec. 64(d) and (e).
61 CA 141, Sec. 86 to 88.
62 123 Phil. 698 (1966).
63 512 Phil. 644, 646 (2005).
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 701).
65 TSN, August 31, 2016, pp. 55-63.
66 TSN, September 7, 2016, pp. 139-141.
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, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SCRA 461 [1987]). (Province of Camarines Sur v. Court of Appeals, G.R. No. 103125, May 17, 1993).
68 110 Phil. 331 (1960).
69 Id. at 340. Emphasis and underscoring supplied.
70 TSN, September 7, 2016, pp. 39-40.
71 Supra note 62, at 700-701.
72 Italics supplied.
73Ham v. Bachrach Motor Co., Inc., 109 Phil. 949-957 (1960).
74 597 Phil. 649, 661 (2009).
75Biraogo v. Philippine Truth Commission of 2010, supra note 39, at 538-539.
76 OSG Memorandum or Consolidated Comment.
77 345 Phil. 961 (1997).
78 Id. at 979.
79 466 Phil. 482 (2004).
80 Id. at 518.
81Marcos v. Manglapus, supra note 4; Sanlakas v. Reyes, supra note 79; and Integrated Bar of the Philippines v. Zamora, supra note 5.
82 Supra note 4.
83 Ferdinand E. Marcos, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, and Imee Manotoc.
84Marcos v. Manglapus, supra note 4, at 506-508.
85 Supra note 5.
86Integrated Bar of the Philippines v. Zamora, supra note 5, at 638-645.
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.
89 TSN, September 7, 2016, pp. 50-51.
90 Ferdinand "Bongbong" R. Marcos, Jr.
91 Representative Imelda R. Marcos.
92 Ilocos Norte Governor Imee Marcos.
93In 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).
94What Is Forgiveness?, available at <http://greatergood.berkeley.edu/topic/forgiveness/definition>, last accessed on October 17, 2016.
95 Id.
96 Id.
97 Public Respondents' Memorandum, p. 4.
98 Id.
99 Id.
100Marcos v. Manglapus, supra note 4, at 507-508.
101 "Psyche", available at <http://www.merriam-webster.com/dictionary/psyche>, last accessed on October 17, 2016.
102http://www.dictionary.com/browse/psyche, last accessed on October 17, 2016.
103 TSN, September 7, 2016, pp. 83-87.
104Despite tourism loss, Batac mayor backs hero's burial for Marcos, available at <http://www.rappler.com/nation/145804-batac-mayor-her-burial-marcos>, last accessed on October 17, 2016.
105 Sec. 1, RA 289.
106 Sec. 2., id.
107 P.D. No. 105, 3rd Whereas Clause.
108 Presidential Decree No. 1682.
109 R.A. 10796 (2016).
110http://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.
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]).
113Reserving 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]).
116Declaring the "Bantayog sa Kiangan" as a Military Shrine, Proclamation No. 1460, [1975].
117Declaring the Kiangan War Memorial Shrine in Linda, Kiangan, Ifugao as a National Shrine, Proclamation No. 1682, [1977].
118Amending Part XII (Education) and Part XIX (National Security) of the Integrated Reorganization Plan, Presidential Decree No. 1076, [1977].
119 Second and Third Whereas Clauses of PD 1076.
120National Cultural Heritage Act of 2009, Republic Act No. 10066, March 24, 2010.
121 Article 2(a) of RA 10066.
122Strengthening Peoples' Nationalism Through Philippine History Act, Republic Act No. 10086, May 12, 2010.
123 Section 2, RA 10086.
124National Cultural Heritage Act of 2009, Republic Act No. 10066, March 24, 2010.
125 Section 4, RA 10066 uses the term "national historical shrine".
126 Section 3, RA 10066.
127 Section 48, id.
128 Section 31, id.
129 Section 3(n), RA 10086.
130 Sections 7(d) and (n), id.
131 Sections 3(b), 7(e) and 20, id.
132 Section 3(i) in RA 10066 and Section 3(c), id.
133 Annex 6, Consolidated Comment.
134 Annex 7, Consolidated Comment.
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.
137 AFP Regulations G 161-374; AFP Regulations G 161-375. Emphasis supplied.
138 Id; id. Emphasis supplied.
139http://corregidorisland.com/bayani/libingan.html.
140Pabillo v. COMELEC, 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 (2009).
143 41 Phil. 275 (1920).
144 94 SCRA 317.
145 453 Phil. 1059 (2003).
146 Id. at 1149.
147 686 Phil. 980 (2012).
148Republic v. Sandiganbayan, supra note 146, at 1091; Marcos, Jr. v. Republic, id. at 1003-1004.
149Republic v. Sandiganbayan, id. at 1093.
150 Supra note 4, at 509.
151 243 Phil. 93, 107 (1988).
152In Re Estate of Marcos Human Rights Litigation, 910 F. Supp. 1460 (D. Haw. 1995).
153Hilao 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.
155 "Anti-Enforced or Involuntary Disappearance Act of 2012".
156Government of Hongkong Special Administrative Region v. Muñoz, G.R. No. 207342, August 16, 2016; Commissioner of Internal Revenue v. Pilipinas Shell Petroleum Corp., 727 Phil. 506 (2014); Bayan v. Zamora, 396 Phil. 623 (2000); Magallona v. Ermita, G.R. No. 187167, August 16, 2011; Bayan Muna v. Romulo, 656 Phil. 246 (2011); CBK Power Company Ltd. 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 (2007); Department of Budget and Management Procurement Service (DBM-PS) v. Kolonwel Trading, 551 Phil. 1030 (2007); Deutsche Bank AG v. Commissioner of Internal Revenue, 716 Phil. 676 (2013); Secretary of Justice v. Lantion, 379 Phil. 165 (2000); La Chemise Lacoste, S.A. v. Fernandez, 214 Phil. 332 (1984); Tañada v. Angara, 338 Phil. 546, 592 (1997); Pharmaceutical and Health Care Association of the Phils. v. Duque III, 561 Phil. 386 (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 G.R. No. L-49112 February 2, 1979.
160Agustin v. Edu, G.R. No. L-49112 February 2, 1979.
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 (Dissenting Opinion, March 8, 2016.
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 07, 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, G.R. Nos. 221697 & 221698-700 (Dissenting Opinion), March 8, 2016.
166 See: Secretary of National Defense v. Manalo, 589 Phil. 1, 50-51 (2008) and Separate Opinion of C.J. Puno in Republic v. Sandiganbayan, in Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700 (Dissenting Opinion), March 8, 2016.
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."
169Pharmaceutical and Health Care Association of the Phils. 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.
170Secretary of Justice v. Ralph 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.
172 R.A. 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 R.A. 10368, Sec. 2.
174 R.A. 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. 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 victims' honor and dignity. The State hereby acknowledges its moral and legal obligation to recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime. 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 ofTreaties ("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 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 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 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.
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 Ian Brownlie, Principles of Public International Law 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 Dip1ock, 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".
182 OSG Memorandum, par. 245, p. 93.
183 53 UN GAOR Supp. (No. 10) at 43, U.N. Doc. A/56/83 (2001).
184 OSG Memorandum, par. 242, p. 93.
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 1472 (9th Cir. 1994).
187Berstein v. Van Heyden Fieres Societe' Anonyme, 163 F.2d 246, 249 (2nd Cir. 1947) (L. Hand, J.), in Ifeanyi Achebe, The Act of State Doctrine and Foreign Sovereign Immunities Act of 1976: Can They Coexist?, 13 Md. J. Int'l L. 247 (1989).
188 Ifeanyi Achebe, The Act of State Doctrine and Foreign Sovereign Immunities Act of 1976: Can They Coexist?, 13 Md. J. Int'l L. 247 (1989). Available at: http://digitalcomrnons.law.umaryland.edu/mjil/vol13/iss2/4, last accessed on October 17, 2016.
189 556 Phil. 664 (2007).
190Banco 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 678, 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).
191PCGG v. Sandiganbayan and Officeco Holdings N.V., id., citing Evans, M.D. (Ed.), International Law (First Edition), Oxford University Press, p. 357.
192 TSN, August 31, 2016, pp. 199-215.
193 OSG Memorandum, par. 332, p. 116.
194 Id.
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:
chanRoblesvirtualLawlibrary17. 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 (1998).
197 621 Phil. 536 (2009).
198Razon, Jr. v. Tagitis, id at 603-604.
199 Latiph Petition, p. 22.
200 See also OSG Memorandum, par. 310, p. 110.
201 OSG Memorandum, par. 312, p. 110.
202 OSG Memorandum, par. 344, p. 119.
203 OSG Memorandum, par. 344, p. 119.
204 ICJ Statute, Art. 34.
205 Preamble to the Principles and Guidelines, par. 7.
206 Supra.
207 Nora Sveass, Gross human rights violations and reparation under international law: approaching rehabilitation as a form of reparation, European Journal of Psychotraumatology, Eur J Psychotraumatol. 2013; 4, May 8, 2013.
208 Rosales Petition.
209 Subsidiary source of international law under Article 38(1)(d) of the ICJ Statute, supra.
210 OSG Memorandum, p. 322, p. 114.
211 OSG Memorandum, p. 238, p. 91.
212 R.A. 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes against Humanity; R.A. 10353 or the "Anti-Enforced or Involuntary Disappearance Act of 2012"; R.A. 9201 or the "National Human Rights Consciousness Week Act of 2002" and R.A. 10368; see OSG Memorandum, p. 332, p. 116.
213 Rosales Petition, par. 8.7, pp. 63-64; OSG Memorandum, 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 Nora Sveass, Gross human rights violations and reparation under international law: approaching rehabilitation as a form of reparation, European Journal of Psychotraumatology, Eur J Psychotraumatol. 2013; 4, May 8, 2013.
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.
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.