Marcos Burial Case (G.R. No. 225973. August 08, 2017)


FACTS: On November 8, 2016, the Court dismissed the petitions challenging the intended burial of the mortal remains of Ferdinand E. Marcos (Marcos), former President of the Republic of the Philippines, at the Libingan ng mga Bayani (LNMB). As the Filipino public witnessed through the broadcast media and as the Office of the Solicitor General (OSG) manifested[1] based on the letter sent by the Philippine Veterans Affairs Office (PVAO) of the Department of National Defense (DND), Marcos was finally laid to rest at the LNMB around noontime of November 18, 2016, which was ten (10) days after the promulgation of the judgment and prior to the filing of petitioners' separate motions for reconsideration.

  1. Motions for reconsideration (MRs) filed by Ocampo et al.,[2] Lagman et al.,[3] Rosales et al.,[4] Latiph,[5] and De Lima;[6]
  2. Urgent motion or petition for the exhumation of Marcos' remains at the LNMB filed by Lagman et al.;[7] and
  3. Petitions to cite respondents in contempt of court filed by Ocampo et al.[8] and Rosales et al.,[9] which were consolidated[10] with the case and docketed as G.R. No. 228186 and G.R. No. 228245, respectively.
HELD: WHEREFORE, the motions for reconsideration, as well as the motion/petition to exhume Marcos' remains at the Libingan ng mga Bayani, are DENIED WITH FINALITY. The petitions for indirect contempt in GR. No. 228186 and GR. No. 228245 are DISMISSED for lack of merit.

Political question doctrine

Petitioners argue that the main issue of the petitions does not deal on the wisdom of the actions of President Rodrigo R. Duterte (Duterte) and the public respondents but their violation of the 1987 Constitution (Constitution), laws, and jurisprudence. They posit that, under its expanded jurisdiction, the Court has the duty to exercise judicial power to review even those decisions or exercises of discretion that were formerly considered political questions in order to determine whether there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of a public officer.

From the records of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power but also a duty which cannot be abdicated by the mere invocation of the political question doctrine.[11] Nonetheless, Chief Justice Roberto Concepcion clarified that Section 1, Article VIII of the Constitution was not intended to do away with "truly political questions," which are beyond judicial review due to the doctrine of separation of powers.[12] In Francisco, Jr. v. The House of Representatives,[13]this Court conceded that Section 1 Article VIII does not define what are "truly political questions" and "those which are not truly political," and that identification of these two species may be problematic since there has been no clear standard. In the end, however, We resolved that, "[i]n our jurisdiction, the determination of whether an issue involves a truly political and 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."[14]

The Court sees no cogent reason to depart from the standard set in Francisco, Jr. Applying that in this case, We hold that petitioners failed to demonstrate that the constitutional provisions they invoked delimit the executive power conferred upon President Duterte. Significantly, AFP Regulations G 161-375 was issued by order of the DND Secretary, who, as the alter ego of the President, has supervision and control over the Armed Forces of the Philippines (AFP) and the PVAO. The Veterans Memorial Historical Division of the PVAO is tasked to administer, develop and maintain military shrines such as the LNMB, As held in Our Decision, AFP Regulations G 161-375 is presumptively valid and has the force and effect of a law and that, until set aside by the Court, is binding upon executive and administrative agencies like public respondents, including the President as the chief executor of the laws.

Locus standi

Petitioners claim to have a legal standing to file the petitions because they have already sustained direct injury as a result of the act being questioned in this case. With respect to petitioners who are human rights violation victims (HRVVs) during the martial law period, they contend that their right to dispute Marcos' burial at the LNMB rests on their right to full and effective remedy and entitlement to reparation as guaranteed by the State under the Constitution as well as the domestic and international laws. In particular, they cite Republic Act (R.A.) No. 10368, arguing that Marcos' burial at the LNMB distorts the historical bases upon which their rights to other non-monetary compensation were granted, and is an affront to their honor and dignity that was restored to them by law. Essentially, petitioners decry that Marcos' burial at the LNMB results in illegal use of public funds, re-traumatization, historical revisionism, disregard of their state recognition as heroes and their rights to effective reparation and to satisfaction.

Petitioners' contentions still fail to persuade.

Locus standi or legal standing 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.[18] Generally, a party will be allowed to litigate only when he or she can demonstrate that (1) he or she has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought.[19] Petitioners have not clearly shown the direct injury they suffered or would suffer on account of the assailed memorandum and directive allowing Marcos' burial at the LNMB.

Petitioners' view that they sustained or will sustain direct injury is founded on the wrong premise that Marcos' burial at the LNMB contravenes the provisions of the Constitution: P.D. No. 105; R.A. Nos. 289, 10066, 10086, 10368; and international laws. However, as the Court fully explained in the assailed Decision, the historical and legal bases governing the LNMB unequivocally reveal its nature and purpose as an active military cemetery/grave site over which President Duterte has certain discretionary authority, pursuant to his control and commander-in-chief powers, which is beyond the Court's judicial power to review.

At this point, suffice it to state that given the public character of the LNMB and the general appropriations for its maintenance and upkeep, petitioners failed to prove illegal disbursement of public funds by showing that Marcos is disqualified to be interred at the LNMB under the provisions of existing Constitution, laws, and regulations. Also, they did not establish that a special disbursement was ordered for the Marcos burial apart from the funds appropriated for the interment of those who are similarly situated, which are sourced from the Maintenance and Other Operating Expenses of the AFP and are regularly included in the General Appropriations Act. As aptly noted by the OSG, the Marcos family would shoulder all the expenses for the burial and that the AFP is even authorized to claim reimbursement for the costs incurred therefor.

Exhaustion of Administrative Remedies and Hierarchy of Courts

Petitioners claim that the filing of an MR before public respondents and the Office of the President (OP) would have been an exercise in futility, and that direct resort to this Court is justified by the following special and compelling reasons; (1) the very alter egos of President Duterte, if not the President himself, would rule on the MR; (2) a mere verbal instruction of the President already put in motion the task of organizing Marcos' burial at the LNMB; (3) the denial of an appeal to the OP is a forgone conclusion in view of the President's repeated pronouncements during his election campaign, after the filing of the petitions, and subsequent to the promulgation of the Court's Decision, that he would allow Marcos' burial at the LNMB; (4) the case involves a matter of extreme urgency which is evident from the Court's issuance of SQAO; (5) whether the President committed grave abuse of discretion and violated the Constitution and the laws is purely a question of law; (6) as proven by the clandestine burial of Marcos in coordination with public respondents, there is up other plain, speedy and adequate remedy to assail the acts which are patently illegal and made with grave abuse of discretion; (7) the strong public interest involved as shown by the nationwide protests; and (8) the case is impressed with public interest and transcendental issues.

We do not subscribe.

The purpose behind the settled rule that a motion for reconsideration is a condition sine qua non for the filing of a petition for certiorari is to grant the court or administrative body which issued the assailed decision, resolution or order the opportunity to correct any actual or perceived error attributed to it by the re-examination of the legal and factual circumstances of the case.[22] Even if the challenged issuance of public respondents were rendered upon the verbal order of President Duterte, it cannot be denied that the concerned AFP officials still have the power to enforce compliance with the requirements of AFP Regulations G 161-375, as amended.[23] The logical and reasonable remedy to question the burial procedures and the allocation of plots should be with public respondents who issued the directives.

If the court or administrative body is given an opportunity to correct itself on an MR, there is no reason then not to extend such basic courtesy to public respondents since they are subordinates who merely follow the orders of their Commander-in-Chief. Like the President who is tasked to faithfully execute the laws of the land, they are also enjoined to obey the laws and are entitled to the disputable presumption of regularity in the performance of their official duties. Having been charged to exercise over-all supervision in the implementation of AFP Regulations G 161-375, public respondents could correct the interment directive issued should there be any meritorious ground therefor. The fact that the administrative regulation does not provide a remedy to question an interment directive does not automatically entitle petitioners to directly implore this Court considering that it does not prevent them to appeal or ask for reconsideration based on their claim of right to due process or an opportunity to be heard on an issue over which they insist to have a standing to intervene.

Likewise, the Court cannot anchor its judgment on news accounts of President Duterte's statements with regard to the issue of Marcos' burial at the LNMB. Newspaper articles amount to "hearsay evidence, twice removed" and are therefore not only inadmissible but without any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted.[24]

Mootness of the Case

The OSG argues that Marcos' burial at the LNMB on November 18, 2016 is a supervening event that rendered moot and academic the MRs of petitioners-movants. Consequently, this Court must refrain from resolving the issues raised in the MRs for to do so would result in an absurd situation wherein Marcos' remains would have to be exhumed if the assailed Decision is overturned. The OSG asserts that petitioners-movants cannot plead for the exhumation without first complying with Articles 306 to 309 of the New Civil Code.[37]

We disagree.

An issue becomes moot and academic when any declaration thereon would be of no practical use or value such that there is no actual substantial relief to which petitioners would be entitled and which would be negated by the dismissal of the claim.[38] On this basis, the Court holds that the MRs filed by petitioners-movants have not been mooted by Marcos' burial at the LNMB. There is still a live controversy between the parties. The MRs were not rendered illusory considering that the execution pending their resolution may still be voided in the event that We find merit in the contentions of petitioners-movants. In that sense, a declaration sustaining their motions and granting their prayer for relief would still be of practical value.

SQAO, Petitions for Contempt and Motion for Exhumation

Lagmao et al. contend that the right of a party to file a MR is impaired and that due process is derailed if a decision that is not yet final and executory is implemented. In this case, the Decision must become final and executory before the dissolution of the SQAO can take effect. Pending its finality, the absence of a court order enjoining Marcos' burial at the LNMB is of no moment because the lifting of the SQAO is contingent upon the finality of the Decision. Consistent with Tung Ho Steel Enterprises Corporation v. Ting Guan Trading Corporation,[39]which applied Sections 1 and 4 of Rule 52 of the Rules of Court (Rules), while the reglementary period for filing a MR has not expired, the Decision and the SQAO as an accessory order must not be enforced. Accordingly, a premature and void execution of the Decision can be recalled even motu proprio by this Court.
The assertions lack merit.

While the Court concedes that execution takes place only when decisions become final and executory,[40] there are cases that may be executed pending appeal[41] or are immediately executory[42] pursuant to the provisions of the Rules and the statutes as well as by court order. Yet, the fact that a decision is immediately executory does not prevent a party from questioning the decision before a court of law.[43]

Non-publication of AFP Regulations

Lagman et al. raise a new issue. They propound that AFP Regulations 161-375 cannot be used as basis to justify Marcos' burial at the LNMB because, per certification issued by Director Flordeliza C. Vargas-Trinidad,[59] AFP Regulations G 161-371 to 161-375 were not filed with the Office of the National Administrative Register (ONAR) of the University of the Philippines Law Complex. This failure is in violation of the mandatory requirement of Sections 3 (1) and 4, Chapter 2, Book VII of the Administrative Code of 1987. Being legally invalid, defective and unenforceable, no rights, privileges and obligations have accrued therefrom or been vested thereby.

They are mistaken.

Chapter 2, Book VII of the Administrative Code of 1987 provides:
SECTION 3. Filing. – (1) Every agency[60] shall file with the University of the Philippines Law Center three (3) certified copies of every rule[61] adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from that date shall not thereafter be the basis of any sanction against any party or persons.
(2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain of disciplinary action.
(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.

SECTION 4. Effectivity. – In addition to other rule-making requirements provided by law not inconsistent with this Book, each rule shall become effective fifteen (15) days from the date of filing as above provided unless a different date is fixed by law, or specified in the rule in cases of imminent danger to public health, safety and welfare, the existence of which must be expressed in a statement accompanying the rule. The agency shall take appropriate measures to make emergency rules known to persons who may be affected by them.
The publication requirement in the ONAR is confined to issuances of administrative agencies under the Executive Branch of the government.[62] Exempted from this prerequisite are the military establishments in all matters relating exclusively to Armed Forces personnel.[63] A plain reading of AFP Regulations G 161-371 to 161-375 reveals that they are internal in nature as that they were issued merely for the guidance of the concerned AFP units which are tasked to administer the LNMB. Moreover, in view of the nature of the LNMB as an active military cemetery, it cannot be said that AFP Regulations G 161-375 is a regulation which "adversely affect, or impose a heavy and substantial burden on, the citizenry in a matter that implicates the very nature of government we have adopted" such that registration with the ONAR is not only "a matter of administrative convenience but x x x a dictate of due process."[64]

Assuming that AFP Regulations G 161-375 is invalid for non-compliance with the publication requirement in the ONAR, its invalidity would still not result in the denial of Marcos' burial at the LNMB. Since the Administrative Code of 1987 is prospective in its application, President Duterte may apply AFP Regulations G 161-373 issued on April 9, 1986[66] as legal basis to justify the exercise of his presidential prerogative. Under this earlier regulation, Marcos may be buried at the LNMB because he is a Medal of Valor Awardee, President and AFP Commander-in-Chief, Minister of National Defense, Veteran, and Statesman, Moreover, unlike the succeeding regulations, AFP Regulations G 161-373 contains no provisions on disqualification for interment.

Compliance with the 1987 Constitution, statutes, and jurisprudence

Petitioners-movants reiterate that AFP Regulations G 161-375 does not have the force and effect of Law and cannot be a valid source of any right, obligation or power for violating the Constitution, international and municipal laws, and foreign and local jurisprudence, which, cannot be disregarded as they are deemed incorporated in administrative regulations.

Again, the Court is not persuaded.

On the 1987 Constitution

Ocampo et al. maintain that Marcos' burial at the LNMB brazenly violates the Constitution, the basic principles of which are respect for human rights and dignity and public accountability. Rosales et al. hold that the spectacle of burying Marcos at the LNMB undermines the recognition of his crimes and takes away the very historical premises on which so much of our present constitutional design and order is anchored. And, Latiph expresses that Marcos was an epitome of anti-democracy, representing oppression and tyranny which the Constitution rejects.

It is asserted that We ignored the intent expressed by the Filipinos when they ratified the Constitution, which, among others, orders the AFP to be the protector of the people (Sec. 3, Art. II); adopts an independent foreign policy (Sec. 7, Art. II); directs the State to take positive and effective measures against graft and corruption (Sec. 27, Art. II); restricts the powers of the President to suspend the privilege of the writ of habeas corpus and proclamation of martial law (Sec. 18, Art. VII); expands the power and duty of the Supreme Court (Sec. 1, Art. VIII); directs that education 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 (Sec. 3 [2], Art. XIV); requires the State to strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty (Sec. 5 [2], Art. XVI); creates the Commission on Human Rights (Sec. 17, Art. XIII); and causes the establishment of the Presidential Commission on Good Government (PCGG) and the Comprehensive Agrarian Reform Program (CARP) as well as the enactment of R.A. Nos. 9745, 9851, 10353, and 10368.

Moreover, for Rosales et al., the cases of Manila Prince Hotel v. GSIS,[67] Agabon v. NLRC,[68] Serrano v. Gallant Maritime Services, Inc., et al.,[69] Gutierrez v. House of Representatives Committee on Justice,[70] and Gamboa v. Finance Secretary Teves. et al.[71] prove that the Constitution has self-executing provisions. Ocampo et al. add that this Court struck down in Manila Prince Hotel the argument that some provisions of the Constitution are not self-executing and requires implementing legislation, and that provisions claimed to be non self-executing can still be violated if the questioned act is directly opposite the provisions that require the government to undertake.

Finally, it is contended that our constitutional tradition has consistently followed the doctrine that the silence of the Constitution does not mean the absence of constitutional principles and commands. Rosales et al. cite Angara v. Electoral Commission,[72] wherein the Court, following the doctrine of necessary implication, appeared to have recognized the principle of separation of powers and Our power of judicial review. Also, Ocampo et al. refer to Egerton v. Earl of Brownlow,[73] wherein an act based on public policy considerations was allegedly struck down despite the fact that there was no law or jurisprudence prohibiting it.

As the OSG correctly counters, reliance on Manila Prince Hotel is misplaced because the issue there was whether Sec. 10, Art. XII of the Constitution, a provision which was not invoked in this case, is self-executing. Petitioners-movants repeatedly failed to demonstrate precisely how Sections 3, 7, 11, 13, 23, 26, 27 and 28 of Art. II; Sec. 18, Art. VII; Sec. 1, Art. VIII; Sec. 1, Art. XI; Sec. 3[2], Art. XIV; Sec. 5 [2], Art. XVI; and Sec. 17, Art. XIII of the Constitution prohibit Marcos' burial at the LNMB. In fact, even the Statement[74] dated November 24, 2016, which was issued by some members of the Constitutional Commission, offers no consolation as nowhere therefrom could We find any specific constitutional provision/s violated by the interment of Marcos.

Considering that the Court may not ascribe to the Constitution meanings and restrictions that would unduly burden the powers of the President,[79] its plain and unambiguous language with respect to his power of control as Chief Executive and Commander-in-Chief should be construed in a sense that will allow its foil exercise. It cannot be conveniently claimed that various provisions of the Constitution, taken together, necessarily imply the prohibition of Marcos' burial at the LNMB. The silence of the Constitution cannot be unreasonably stretched to justify such alleged proscription.

On R.A. No. 289

Petitioners Ocampo et al. and Lagman et al. insist that R.A. No. 289 is applicable in determining the standards on who are entitled to be buried at the LNMB. As a special law, its provisions prevail over the power to allocate lands of the public domain granted to the President by the Administrative Code of 1987. Its salutary objective encompasses all subsequent shrines or memorials as interment grounds for former Presidents, heroes, and patriots, regardless of the time it was constituted and its location.

While We agree that R.A. No. 289 is an existing and valid law for not having been amended or repealed by subsequent ones, it is maintained that said law and the LNMB are unrelated to each other, Up to now, the Congress has deemed it wise not to appropriate any funds for the construction of the National Pantheon or the creation of the Board on National Pantheon. Significantly, the parcel of land subject matter of Proclamation No. 431, which was later on revoked by Proclamation No. 42, is different from that covered by Proclamation No. 208. Even Justice Caguioa's dissent, as to which Justice Jardeleza concurred, concluded that it is non sequitur to argue the applicability of R.A. No. 289, or the standards indicated therein, to the LNMB because the land on which the National Pantheon was to be built refers to a discrete parcel of land that is totally distinct from the site of the LNMB. Except for Justice Leonen, the other justices who dissented to the majority opinion were silent on the matter.

On R.A. No. 10368

The applicability of R.A. No. 10368 was reiterated by petitioners-movants. Ocampo et al. posit that Marcos' burial at the LNMB is diametrically opposed and evidently repugnant to the legislative intent and spirit of R.A. No. 10368, which statutorily declared the policy of the State to recognize the heroism and sacrifices of all human rights violations victims (HRVVs) during the Marcos regime. The HRVVs cannot be recognized and their dignity cannot be restored if the perpetrator is extolled and given honors befitting that of a hero, tantamount to exonerating him. from the abuses of Martial Law. To recall Justice Leonen raised the same arguments in his dissent, stating that Marcos' burial at the LNMB is violative of R.A. No. 10368 because it may be considered as an effort "to conceal abuses during the Marcos regime" or to "conceal x x x the effects of Martial Law"; that it undermines the recognition of his complicity.

On their part, Lagman et al. and Rosales et al. assert that aside from the repealing clause expressly provided for under Sec, 31 of R.A. No. 10368, the incompatibility between AFP Regulations G 161-375 and said law satisfies the standard of effecting a repeal by implication. Under the doctrine of necessary implication, every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege.

We differ.

The provisions of R.A. No. 10368 are straightforward. The rights of HRVVs to recognition and reparation have been set and defined under the law, which grants specific remedies. Glaringly, not one of its provisions could be construed to justify denying former Pres. Marcos or his family of any rights which have been vested by law or regulation. R.A. No. 10368 repudiated no commendation or revoked any distinction attained by Marcos during his lifetime, particularly those which he accomplished outside the period of September 21, 1972 to February 25, 1986. Neither did it nullify any right or benefit accruing to him because of such achievements. The Court cannot do more than what the law clearly provides. To stretch its scope is not only unreasonable but also tantamount to judicial legislation.

With regard to the non-monetary reparation to HRVVs under Sec. 5 of R,A. No. 10368, Rosales et al. argue that the Court's narrow interpretation is inconsistent with the prevailing jurisprudence and international law for failure to recognize the all-encompassing concept of the right to an effective remedy. To them, non-monetary reparation is not limited to a hollow commitment to provide services from government agencies including public respondents.

We are not amendable.

It is well established that courts may avail themselves of extrinsic aids such as the records of the deliberations or the actual proceedings of the legislative body in order to assist in determining the construction of a statute of doubtful meaning. Where there is doubt as to what a provision of a statute means, the meaning put to the provision during the legislative deliberation or discussion on the bill may be adopted.[88]

Notably, R.A. No. 10368 is the consolidation of Senate Bill (S.B.) No. 3334[89] and House Bill (H.B.) No. 5990[90] of the 15th Congress. S.B. No. 3334 substituted S.B. Nos. 2615[91] and 3330,[92] which were both referred to and considered by the Senate Committees on Justice and Human Rights and Finance. While S.B. No. 3334 did not provide for non-monetary compensation,[93] H.B. No. 5990[94] afforded such benefit. The Conference Committee on the Disagreeing Provisions of H.B. No. 5990 and S.B. No. 3334 resolved to adopt the provision of the House of Representatives on non-monetary compensation (appearing as Section 5 of now R.A. No. 10368) but did not include its definition under H.B. No. 5990.[95] As defined by the House, it "refers to a non-pecuniary compensation given to a victim of human rights violation or members of the family to restore the family's honor and dignity and shall include, but not limited to, psychotherapy, counseling, medical care, social amelioration and honorific recognition."[96] Hence, interpretation of the term should be viewed in light of this definition such that any non-monetary compensation to be granted must be similar in nature with the enumerated services.

If a statute is plain and free from ambiguity, it must be given its literal meaning or applied according to its express terms, without any attempted interpretation, and leaving the court no room for any extended ratiocination or rationalization.[97] When the letter of the law is clear, to seek its spirit elsewhere is simply to venture vainly, to no practical purpose, upon the boundless domains of speculations.[98] A strictly literal interpretation of a statute may be disregarded and the court may consider the spirit and reason of the statute where a literal meaning would be impossible, render the provision/s meaningless, or lead to inconvenience, absurdity, contradiction, injustice or mischievous results, or would defeat the clear purpose of the lawmakers.[99] Liberality has a place only when, between two positions that the law can both accommodate, the more expansive or more generous option is chosen.[100] It has no place where no choice is available at all because the terms of the law do riot at all leave room for discretion.[101]

Judicial activism should never be allowed to become judicial exuberance.[115] In this case, no amount, of logic or convenience can convince Us to perform an insertion of a matter that was clearly not included in R.A. No. 10368 as enacted. Just like his return to the country, Marcos' burial at the LNMB is a delicate and complex subject with far reaching implications. No one can deny this as even the Post-EDSA presidents, including the two Aquino governments, as well as the past Congresses did not dare, wittingly or unwittingly, to finally put the issue to rest. In view of its political (and even economic) repercussions, We must leave the task of enlarging the scope of benefits to the HRVVs to the legislative authority where it properly belongs and which must be assumed to be just as capable of compassionate consideration as courts are thought to be.[116]

Observance of the IHR Laws

Rosales et al. propound that mere existence of human rights laws, administrative rules, and judicial issuance in the Philippines is not equivalent to full compliance with international law standards. It is contended that if the State is to ensure its commitment to the principles of international human rights law, HRVVs must be given full satisfaction and guarantees of non-repetition as defined by Principles 22 and 23 of 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 and Guidelines"). Similarly, Ocampo et al. hold that the HRVVs are entitled to restitution, compensation, rehabilitation, and satisfaction as contemplated in Sections 19 to 22 of the Basic Principles and Guidelines. Essentially, as the Chief Justice expressed in her dissent, there must holistic reparation – financial and symbolic.

The Basic Principles and Guidelines and the Updated Set of Principles for the Protection and. Promotion of Human Rights Through Action to Combat Impunity ("UN Principles on Impunity") are neither a treaty nor have attained the status of generally accepted principles of international law and/or international customs. Justice Arturo D. Brion fittingly observed in his Separate Concurring Opinion that they do not create legally binding obligations because they are not international agreements but are considered as "'soft law" that cannot be interpreted as constraints on the exercise of presidential prerogative. Consistent with Pharmaceutical and Health Care Assoc. of the Phils, v. Health Sec. Duque III,[117] the Basic Principles and Guidelines and the UN Principles on Impunity are merely expressions of non-binding norms, principles, and practices that influence state behavior; therefore, they cannot be validly considered as sources of international law that is binding upon the Philippines under Art. 38 (1), Chapter II[118] of the Statute of the International Court of Justice.

It is evident from the plain text of the Basic Principles and Guidelines and the UN Principles on Impunity that they are recommendatory in character.

Even if the Basic Principles and Guidelines and the UN Principles on Impunity are treated as binding, international laws, they do not prohibit Marcos' burial at the LNMB. We already noted in the Decision that they do not derogate against the right to due process of the alleged human rights violator. Aside from Art. 14, Part III of the ICCPR,[119]XIII (27) of the Basic Principles and Guidelines[120] and Principle 9 of the UN Principles on Impunity[121]are clear and unequivocal. Certainly, observance of due process must not be sacrificed in pursuing the HRVVs' right to full and effective remedy under the international human rights law. The recognition and protection of a person's human rights and dignity must not trample upon that of another who we do not like or those who are perceived to be against us. Justice and equity demands that there be a balancing of interests in the enforcement of both. For the Constitution is a law for all classes of men at all times and there is only one Bill of Rights with the same interpretation for both unloved and despised persons on one hand and the rest who are not so stigmatized on the other.[122]

Disqualification under the AFP Regulations 

Dishonorable Discharge

Rosales et al. assert that "active service," as defined in Sec. 3 of P.D. No. 1638, contemplates both civilian and military service. Thus, the term "dishonorable discharge" applies equally to civilians who are guilty of conduct so reprehensible and tainted with manifest disrespect to the rule of law. In Marcos' case, he was ousted from the Presidency by the Filipinos and was forced into dishonorable exile abroad. Lagman et al. posit that Marcos' burial at the LNMB would completely nullify all that the EDSA People Power Revolution stands for. It would desecrate the spirit of EDSA as it would sweep under the rug of impunity the cardinal sins of Marcos against the Filipinos.

The Court subscribes to the OSG's contention that the two instances of disqualification under AFP Regulations G 161-375 apply only to military personnel in "active service." For the purpose of P.D. No. 1638, the definition of "active service" under Sec. 3 covers the military and civilian service rendered prior to the date of separation or retirement from the AFP. Once separated or retired, the military person is no longer considered as in "active service." In addition, the term dishonorable discharge in AFP Regulations G 161-375 refers to an administrative military process. Petitioners-movants have not shown that Marcos was dishonorably discharged from military service under the law or rules prevailing at the time his active service was terminated or as set forth by any of the grounds and pursuant to the procedures described in AFP Circular 17, Series of 1987[123]issued on October 2, 1987.

Moral Turpitude

Ocampo et al., Lagman et al., Rosales et al., and Latiph argue that the November 8, 2016 Decision distinctly stands out as an aberration that contradicts and undoes the previous court rulings against Marcos. They contend that the majority opinion chose to ignore Republic v. Sandiganbayan (First Division),[124] Republic v. Sandiganbayan,[125]Marcos, Jr. v. Rep. of the Phils.,[126] Marcos v. Sec. Manglapus,[127] Dizon v. Brig. Gen. Eduardo,[128] Mijares v. Hon. Rañada,[129] PCGG v. Judge Peña,[130] Bisig ng Manggagawa sa Concrete Aggregates, Inc. v. NLRC,[131] Galman v. Sandiganbayan,[132] In Re Estate of Marcos Human Rights Litigation[133] and Hilao v. Estate of Marcos,[134] which characterized the Martial Law as a regime filled with human rights violations and memorialized Marcos as a dictator who plundered the country. Rosales et al. opine that it is immaterial that the decisions of this Court and the foreign, tribunals were mere civil in character because all those litigation involved exhaustive presentation of evidence wherein Marcos and his heirs were fully heard and have enjoyed due process before courts of competent jurisdiction.

We disagree.

The cited cases cannot be relied upon to bar Marcos' burial at the LNMB. Galman v. Sandiganbayan, Marcos v. Sec. Manglapus, Republic v. Sandiganbayan, Marcos, Jr. v. Rep. of the Phils., PCGG v. Judge Peña, and Mijares v. Hon. Rañada did not involve the power and authority of the President to order an interment at the LNMB, while Republic v. Sandiganbayan (First Division), Republic v. Sandiganbayan, and Marcos, Jr. v. Rep. of the Phils. pertained to forfeiture cases under R.A. No. 1379,[135] which this Court declared as civil in nature. More importantly, these cases did not convict Marcos of a crime. The complaints, denunciations, and charges against him no matter how numerous and compelling do not amount to conviction by final judgment of an offense involving moral turpitude. Neither mere presence of an offense involving moral turpitude nor conviction by final judgment of a crime not involving moral turpitude would suffice. The twin elements of "conviction by final judgment" and "offense involving moral turpitude" must concur in order to defeat one's entitlement for burial at the LNMB. The conviction by final judgment referred to is a criminal conviction rendered by a civil court, not one that is handed down by a general court martial. The highest quantum of evidence – proof beyond reasonable doubt, not preponderance of evidence or substantial evidence – must be satisfied. Rosales et al., therefore, erred in supposing that Marcos could never be disqualified under AFP Regulations G 161-375 because it would be absurd that he would appoint a Judge Advocate General to prosecute him and convene a General Court Martial to convict him.

Rosales et al., Latiph, and De Lima further hold that Sec. 14 (2) Art. III of the Constitution anent the right of the accused to be presumed innocent arises only in criminal prosecution. Correspondingly, Marcos cannot avail such right because he was not charged criminally; he was not under trial; and would not be sentenced to a penalty where he stood to lose his life or liberty. Moreover, a claim for violation of due process by a criminal offender presupposes that the People of the Philippines was afforded a fair opportunity to arrest and prosecute the accused in a court of competent jurisdiction. In Marcos' case, the People were unable to criminally prosecute him because he was ousted from the presidency and died in a foreign land. Under the principle of territoriality in criminal law, the long arm of the law could not reach him for lack of jurisdiction over his person.

The arguments are untenable;

Aside from criminal prosecution, the presumption of innocence applies in the cases of attorney[136] under suspension or disbarment proceedings, judge[137] and court personnel[138] with pending administrative complaint, detained person[139] before a military tribunal, and employee[140] in labor cases.

The right to be presumed innocent until proven guilty is subsumed in the constitutional right of every person not to be held to answer for a criminal offense without due process of law.[141] This constitutional mandate refers to any person, not only to one who has been arrested, detained or otherwise deprived of liberty, or against whom a complaint or information was formally filed, or who is undergoing trial, or who is awaiting judgment by the trial court, or whose judgment of conviction is pending appeal. In Herras Teehankee v. Rovira,[142] the Court observed that bail is constitutionally available to ail persons, even those against whom no formal charges are filed. By parity of reasoning, there is no legal or just ground for Us to deny the constitutional right to be presumed innocent to one who is not even criminally prosecuted. Similarly, to place such person in a less favored position than an accused in a criminal case would be, to say the least, anomalous and absurd. It is illogical, if not inane. If there is a presumption of innocence in favor of one already formally charged with criminal offense, a fortiori, this presumption should be indulged in favor of one who is yet to be charged.

Lagman et al. advance that Marcos must be assessed in his totality as a person, since he did not err as an ordinary human being. He was a disgraced President who was deposed by the sovereign people because he was a dictator, plunderer, and human rights violator; he sinned against the multitude of Filipinos as the magnitude of his transgressions permeated and ruined the very core of the Philippines' democratic society and developing economy; and he was not a noble soldier for faking his wartime exploits and credentials. Of the same view, Ocampo et al. assert that the record of Marcos as a soldier cannot be dichotomized and separated from his record as a President because he is no ordinary soldier and president. As Marcos v. Sec. Manglapus held, he is "in a class by itself."

The contentions lack merit.

We already pointed out in Our Decision that the NHCP study is limited to the conclusion that Marcos did not receive the Distinguished Service Cross, the Silver Medal, and the Order of the Purple Heart, and that the U.S. Government never recognized the Ang Mga Maharlika and his alleged leadership of said guerilla unit. It is incomplete as to his entire career. It did not cover and had no adverse findings with respect to his other accomplishments as a legislator, a Secretary of National Defense, a military personnel, a veteran, and a Medal of Valor awardee. When the Decision declared that Marcos is "just a human who erred like us, " it was never the intention of the ponente to trivialize or, as petitioners-movants perceive it to be, forgive and forget what Martial Law has done to the HRVVs and our nation in general. There was no attempt to erase his accountability for the alleged human rights violations and the plunder he committed during the period. What the comparison only meant was to convey the truth that no human is perfect; that it is in our nature to commit sins and make mistakes. The Decision did not pass upon the issue of whether Marcos' "errors" were deliberately or innocently done, extensive or insignificant in scale, or heinous or meritorious in character.

Moreover, the case of Cudia v. The Superintendent of the Philippine Military Academy (PMA),[145] which was invoked by Rosales et al., is inapplicable. The factual antecedents are different and the applicable laws are unrelated: Cudia involves the right to due process of a military cadet who was dismissed from the Philippine Military Academy (PMA) while this case involves the right to be buried of a military personnel at the LNMB; Cudia involves the PMA cadet's Honor Code and Honor System Handbook while this case involves the AFP Regulations G 161-375; and Cudia involves the exercise of academic freedom by the military academy while this case involves the exercise of executive power by the President.

Even if Cudia applies, there is actually no conflict. In that case, the Court affirmed the decision of the PMA, noting that it complied with the due process requirement of the law. We did not substitute the judgment of the military; did not impose standards other than what is traditionally and legally been practiced; and did not enforce a penalty different from what was imposed by the PMA, On the other hand, this case also involves a military regulation that We upheld for not being contrary to the prevailing Constitution, laws, and jurisprudence. This Court affirms the standards as to who may be buried at the LNMB, which are based on our unique military traditions and legal milieu, as codified in various AFP Regulations that took into account existing laws such as C.A. No. 408, P.D. No. 1638, and their amendments.

Finally, the Court resolves the challenge of Rosales et al. with respect to Our citation of U.S. rules and regulations on Arlington National Cemetery (Arlington). First, it must be stressed that We did not heavily rely on the list provided by the Code of Federal Regulations (C.F.R.) as to who are entitled to be buried at the LNMB. The rules and regulations on Arlington, as found in the C.F.R., were mentioned because of their apparent similarity with AFP Regulations G 161-375. They were not the main basis of Our Decision, which can stand on its own even without such reference. Second, We also did not forget to cite the very statute that explicitly enumerates those who are prohibited from interment in Arlington. This is reflected in footnotes 161 and 162 of the Decision, Third, We cannot consider the cases of Timothy Mcveigh and Russel Wayne Wagner, allegedly U.S. military men who were denied the right to be buried at the military cemetery. Newspaper or electronic reports cannot be appreciated by the Court, "not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence."[146] And Fourth, the majority members of the Court did not "insist" the need of a prior proceeding in accordance with § 553.21 of the C.F.R. before any disqualification under 38 U.S.C. § 2411 can be applied. We merely echoed the U.S. rules with respect to a person found to have committed a Federal or State capital crime but who has not been convicted by reason of not being available for trial due to death or flight to avoid prosecution. We do not imply that exactly the same U.S. rules should be applied in Marcos' case but only emphasized the need to guarantee the rights of the accused who enjoys the presumption of innocence. In this jurisdiction, there has been no identical or similar rules to apply; hence, this Court cannot direct any compliance. Instead, Our lone guide is to determine whether, under AFP Regulations G 161-375, Marcos was dishonorably separated/reverted/discharged from service or whether he was convicted by final judgment of an offense involving moral turpitude, Nothing more, nothing less.

MOA between Ramos and the Marcoses

According to Lagman et al., the 1992 Memorandum of Agreement (MOA), which was executed between the Government of the Republic of the Philippines, represented by then Department of Interior and Local Government (DILG) Secretary Rafael M. Alunan III, and the Marcos family, represented by Mrs. Imelda R. Marcos, is a valid and enforceable government contract, it being not contrary to law or public policy, that has never been impugned. As such, it cannot be amended, revoked or rescinded by the subsequent President in order to honor a personal campaign promise. If the sanctity of a private, eontrgct is protected by the non-impairment clause, with more reason is a State contract inviolable. Also, under the MOA, the Marcos family has irrevocably waived any entitlement of the late president to be buried at the LNMB. They are in estoppel and are guilty of laches because they have not instituted any formal demand or action for 24 years since it was signed.

The Court cannot agree.

The decision of former President Fidel V. Ramos in disallowing Marcos' burial at the LNMB is not etched in stone; it may be modified by succeeding administrations. If one Congress cannot limit or reduce the plenary legislative power of succeeding Congresses,[147] so, too, the exercise of executive power by the past president cannot emasculate that of the incumbent president. The discretionary act of the former is not binding upon and cannot tie the hands of the latter, who may alter the same.

National reconciliation and forgiveness

As long as it is proven that Marcos' burial at the LNMB is not contrary to the prevailing Constitution, laws, and jurisprudence, public respondents need not show exactly how such act would promote the declared policy of national healing and reconciliation. Regardless of petitioners-movants' disagreement with it, the rationale for the assailed directives pertains to the wisdom of an executive action which is not within the ambit of Our judicial review. As well, the disputed act, just like a law that is being challenged, is tested not by its supposed or actual result but by its conformity to existing Constitution, laws, and jurisprudence. Hence, whether or not Marcos' burial at the LNMB would in fact cause the healing of the nation and reconciliation of the parties is another matter that is immaterial for purposes of resolving this case and irrelevant to the application of AFP Regulations G 161-375. It is presumptuous for petitioners-movants to claim that Marcos' burial at the LNMB will not bring about genuine national healing and closure. While the HRYVs may find it hard to accept, it is not improbable that the rest of the Filipinos may think and feel differently. In either case, the Court cannot engage in conjectures and surmises. Instead, Our policy is to presume that the acts of the political departments are valid in the absence of a clear and wimistakable showing to the contrary. To doubt is to sustain.[152]

Equally, We cannot pass upon the propositions that Marcos' burial at the LNMB would cleanse the late President Marcos of his sins or consecrate his misdeeds (Lagman et al.); or would clear the image of the Marcos family as they once again attempt to rise into power (Rosales, et al); or would politically rehabilitate their already tarnished reputation and give a shot in the arm to their moribund fanatical followers (Ocampo et al.); or would vindicate him or exonerate each and every plunderer, thief, murderer, human rights violator, and torturer in government or justify every immoral and unlawful act of crooks, trapos, cheaters, and other villains in public office, giving honor to impunity in public office and to a public life without moral principles (De Lima). All these allegations are pure and simple speculations that are devoid of any factual moorings.

Historical revisionism

We concur with Ocampo et al. that this Court was also a victim of Marcos' authoritarian rule and that it cannot isolate itself from history because it was and is a part of it. However, as Justice Brion put it, while the Court is not blind to history, it is not a judge thereof. Accordingly, We should leave Marcos' legacy to the judgment of history.The President of the Philippines has no authority to unilaterally declare anyone a hero. Also, while it is mandatory for the courts to take judicial notice of Philippine history, the NHCP has the primary jurisdiction with respect thereto.[154] It is the principal government agency responsible for history and has the authority to determine all factual matters relating to official Philippine history. In its task to actively engage in the settlement or resolution of controversies or issues relative to historical personages, places, dates and events, the NHCP Board is empowered to discuss and resolve, with finality, issues or conflicts on Philippine history.[155] The Court only steps in if an action is brought before it to determine whether there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the NHCP.

Equitable consideration

Rosales et al. contend that the Court should apply equity and extend equitable protection to the HRVVs because Marcos' burial at the LNMB causes them irreparable injury as it re-inflicts their trauma and grief while the Marcos' heirs have not shown any injury that they would sustain by its denial.

The argument is untenable. Justice is done according to law. As a rule, equity follows the law. There may be a moral obligation, often regarded as an equitable consideration (meaning compassion), but if there is no enforceable legal duty, the action must fail although the disadvantaged party deserves commiseration or sympathy.