Filed 28 Nov. 2016 at 9:46 AM

Republic of the Philippines SUPREME COURT

Manila

REP. EDCEL C. LAGMAN, et al.,

PETITIONERS

- versus - EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, et al.,

RESPONDENTS. x----------------------------------------x

G.R. No. 225984

(Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining Order or Writ of Preliminary Injunction)

MOTION FOR RECONSIDERATION PETITIONERS, through counsel, respectfully submit the instant motion for reconsideration of the Decision dated 08 November 2016 in the above-captioned case which is consolidated with the petitions in G.R. Nos. 225973, 226097, 226116, 226117, 226120 and 226294, based on the following presentation:

1. Petitioners received on 11 November 2016 copies of the Decision dated 08 November 2016 (majority decision), dissenting opinions and concurring/separate opinions.

2. Consequently, the reglementary period of fifteen (15)

days from receipt of the Decision within which to file seasonably a motion for reconsideration fell on 26 November 2016 which is a Saturday. Hence, the filing of this motion for reconsideration today, 28 November 2016, the next working day, is on time.

3. The dispositive portion of the subject Decision reads in full:

“WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. Necessarily, the status quo ante order is hereby LIFTED.”

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4. Before the petitioners received a copy of the Decision in the afternoon of 11 November 2016, they filed a “Manifestation” dated 10 November 2016 with the Honorable Court, which stated, among others, that:

“1. While they have not received the copies of the majority Decision, as well as the dissenting and concurring opinions in the above-captioned case and in the other related cases, they are respectfully informing the Honorable Supreme Court that they will definitely file a motion for reconsideration, either separate from or consolidated with motions for reconsideration of the other petitioners, within the prescriptive period from their receipt of the Decision. “2. Considering that the subject Decision is not yet final and to foreclose the projected motion/s for reconsideration from being rendered moot by a precipitate burial of the late President Ferdinand Marcos in the Libingan ng mga Bayani, it is respectfully manifested and prayed that the Honorable Supreme Court may consider reissuing the Status (Quo) Ante Order and/or advising the Respondents not to proceed with the said burial pending resolution of the motion/s for reconsideration to be interposed seasonably by the herein petitioner and the other petitioners. “3. The principle of courtesy and respect to be accorded by the parties to the Court pending the finality of its Decision is also relevant and compelling.” (Emphasis supplied).

A copy of said Manifestation is attached as ANNEX “A”.

5. Considering that the hasty and surreptitious burial

of the purported “mortal remains” of the late dictator Ferdinand Marcos in the Libingan ng mga Bayani (LNMB) on 18 November 2016 was precipitate, premature, void and irregular because the subject Decision, including its accessory directive of lifting the status quo ante order, is not final and executory, the petitioners filed an “Urgent Motion or Petition for the Exhumation of Whatever was Buried as ‘Marcos

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Remains’ in the Libingan ng mga Bayani on 18 November 2016” (Emphasis supplied). A copy of the said urgent motion is attached as ANNEX “B”.

6. Since the necessary lifting of the said Status Quo Ante

Order is an accessory directive to the principal decision, the said lifting is not final until the main decision becomes final and executory.

PRELIMINARY STATEMENT

7. It is not hard to comprehend that the interment of Marcos in the Cemetery of Heroes is inextricably intertwined with the late dictator’s imposition of martial law which spawned inordinate oppression, corruption and plunder for 14 ignominious years and even beyond.

8. It is not difficult to understand that allowing his burial in the Libingan ng mga Bayani is a veritable honor accorded to a disgraced President and Commander-in-Chief who was deposed by the sovereign people for having committed grievous sins against the Filipino people as acknowledged by no less than the Honorable Supreme Court in a number of landmark decisions and validated by foreign judicial tribunals.

9. His burial in the memorial of good men impedes on the continuing quest for illusive justice for the victims of martial law, perpetuates the impunity of his transgressions and mocks the unfinished task of recovering his hoard of ill-gotten wealth.

10. These are the very reasons why the Marcos burial in LNMB transcends politics. These are the very reasons why President Duterte’s policy on burying Marcos in the LNMB is not a political question which is beyond the judicial scalpel to excise.

11. These are the very reasons why such a policy is flawed and its implementation is tainted with gross abuse of discretion amounting to lack or excess of jurisdiction because it violates the Constitution, relevant statues and pertinent decisions of the Honorable Supreme Court, all of which are justiciable.

12. It is not remote to realize that the Marcos burial in the Libingan ng mga Bayani is a gross distortion, a malevolent revision and a wanton derogation of Philippine history.

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GROUNDS RELIED UPON FOR RECONSIDERATION

I. MARCOS’ BURIAL IN THE LIBINGAN NG MGA BAYANI (LNMB) WILL NOT LEAD TO CLOSURE.

II. AFP REGULATIONS G 161-375 DATED SEPTEMBER 11, 2002 ISSUED BY THE DEPARTMENT OF NATIONAL DEFENSE IS NOT EFFECTIVE AND ENFORCEABLE, AND CONSEQUENTLY, IT COULD NOT BE THE BASIS FOR THE INTERMENT OF MARCOS IN THE LNMB.

III. THERE ARE LAWS AND SUPREME COURT DECISIONS WHICH MILITATE AGAINST AND EFFECTIVELY PROHIBIT THE MARCOS BURIAL IN THE LNMB.

IV. THE MESSAGE OF THE EDSA PEOPLE POWER REVOLUTION IS CLEAR AND RESOUNDING: MARCOS WAS OUSTED FOR BEING A DESPOT, PLUNDERER AND VIOLATOR OF HUMAN RIGHTS.

V. WHEN THE TOTALITY OF MARCOS AS A MAN IS WEIGHED IN THE BALANCE, WHATEVER ACHIEVEMENTS HE HAS DONE FOR THE COUNTRY ARE COMPLETELY NULLIFIED BY HIS CARDINAL SINS AGAINST THE NATION, FOR WHICH HE IS NOT ENTITLED TO BE BURIED IN THE LNMB.

VI. THE MARCOS FAMILY HAS WAIVED HIS BURIAL IN THE LNMB 24 YEARS AGO.

VII. THE INSTANT CASES DO NOT INVOLVE A POLITICAL QUESTION, WHICH IS AN ALMOST EXTINCT INVOCATION.

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VIII. RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION.

IX. PETITIONERS HAVE LOCUS STANDI, DID NOT VIOLATE THE “HIERARCHY OF COURTS” DOCTRINE, AND DID NOT HAVE TO EXHAUST ADMINISTRATIVE REMEDIES.

X. FERDINAND EDRALIN MARCOS DOES NOT DESERVE THE HONOR OF BEING INTERRED IN THE LIBINGAN NG MGA BAYANI EVEN AS A FORMER PRESIDENT AND SOLDIER PER SE.

DISCUSSION I. MARCOS’ BURIAL IN THE LIBINGAN NG MGA BAYANI (LNMB) WILL NOT LEAD TO CLOSURE.

13. The majority decision is prefaced by an exhortation that “In law, as much as in life, there is need to find closure.” It ends with the same invocation that “In the meantime the country must move on and let this issue rest.” These calls echo the claim of President Rodrigo Duterte that he ordered the burial of the late President Ferdinand Marcos in the LNMB in order that the nation will attain closure and the wounds of conflict are healed.

14. The error in the aforesaid calls for closure is the dismal

failure to realize that closure is a happy and welcome ending to a tragedy or misfortune.

15. It is not closure if the Marcos burial in the LNMB would

open anew the deep wounds of atrocities, relive the haunting memories of torture and mayhem and revive the sufferings of ill-fated desaparecidos.

16. It would not be closure when the interment of Marcos in

the LNMB would exacerbate gross injustice and perpetuate wanton

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impunity against the victims of martial law – the entire Filipino people including those born after that dark age of Philippine history.

17. The burial of a condemned dictator, confirmed plunderer and censured violator of human rights in the Cemetery of Heroes will not lead to closure because it sanctifies evil and installs a despot and oppressor in the venerable memorial for good men.

18. No closure would be achieved if it is at the expense of the victims of the brutalities and corruption of Marcos’ martial law regime, and for the hollow gratification and flawed vindication of a tyrant and his heirs.

19. The absence of closure is highlighted by the escalating nationwide protest rallies and the continuing cogent commentaries against the majority decision immediately after its announcement or release.

20. The denial of closure is projected in bold relief by the hasty and clandestine burial of Marcos in the LNMB despite the indisputable fact that the Supreme Court Decision, as well as its accessory directive lifting the status quo ante order, is not final and executory, which precipitate, premature, void and irregular interment further intensified nationwide protests.

21. The speed and stealth by which the Marcos burial was carried out by the immediate members of the Marcos family shows their incorrigible addiction to deception, underhandedness and abuse, which the Honorable Supreme Court must never condone. The precipitate and furtive burial was not only a grand deception against the nation but was a contumacious affront to the High Court.

22. The interment of Marcos’ “mortal remains” in the Cemetery of Heroes will not usher in closure because all Filipinos then, not only those who were tortured, killed, imprisoned and disappeared, were victims of the martial law regime because their civil liberties were curtailed and the nation’s development stunted. Even to this day Filipinos, including those born after martial law, are still paying for the behest and corrupt loans contracted by Marcos.

II. AFP REGULATIONS G 161-375 DATED SEPTEMBER 11, 2002 ISSUED BY THE DEPARTMENT OF NATIONAL DEFENSE IS NOT EFFECTIVE AND ENFORCEABLE, AND

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CONSEQUENTLY, IT COULD NOT BE THE BASIS FOR THE INTERMENT OF MARCOS IN THE LNMB.

23. The majority decision is replete with statements that the interment of the “mortal remains” of Marcos in the LNMB is allowed under AFP Regulations G 161-375 issued on 11 September 2002 by the Department of National Defense. It emphasized that the provisions of this AFP Regulations entitle Marcos as a former President and soldier to be interred in the LNMB.

24. In particular, the majority decision pronounced that: “In

the absence of any executive issuance or law to the contrary, the AFP Regulations G 161-375 remains to be the sole authority in determining who are entitled and disqualified to be interred at the LNMB”.

25. With due respect, the majority is in error because AFP

Regulations G 161-375 lacks efficacy because it was never registered or filed with the Office of the National Administrative Registrar (ONAR) of the University of the Philippines Law Center in violation of the mandatory requirement of Sections 3(1) and 4 of Book VII, Chapter 2 of the Administrative Code of 1987 which provide:

“SECTION 3. Filing. – (1) Every agency shall file with the University of the Philippines Law Center three (3) certified true copies of every rule adopted by it. x x x (Emphasis supplied). “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, x x x.” (Emphasis supplied).

26. The ONAR certified on 21 November 2016 that the said

AFP Regulations G 161-375 is not registered or filed with the ONAR. Attached as ANNEX “C” is the original Certification.

27. Prevailing jurisprudence teaches that administrative rules

not registered with the ONAR are legally invalid, defective and unenforceable.

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28. In the case of Philippine Association of Service Exporters, Inc. (PASEI) vs. Hon. Ruben D. Torres, et al. (G.R. No. 101279, August 6, 1992, 212 SCRA 928), the Supreme Court held:

“Nevertheless, they (Department Order No. 16 and POEA Memorandum Circulars 30 and 37) are legally invalid, defective and unenforceable for lack of proper publication and filing in the Office of the National Administrative Register as required in Art. II of the Civil Code, Article V of the Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative Code of 1987”. (Emphasis supplied).

29. Verily, since the said AFP Regulations “governing” burials

in the LNMB was not filed with the ONAR, no rights, privileges and obligations have accrued or vested from the said issuance or rule.

30. Consequently, contrary to the findings of the majority decision, the AFP Regulations G 161-375 cannot be used as basis for the interment of Marcos in the LNMB.

31. Incidentally, AFP Regulations G 161-371 dated 02 February 1960, AFP Regulations G 161-372 dated 31 July 1973, AFP Regulations G 161-373 dated 09 April 1986 and AFP Regulations G 161-374 dated 27 March 1998, which were all superseded by AFP Regulations G 161-375, were likewise not registered with ONAR. Copies of the pertinent original Certifications are attached as ANNEXES “C-1”, “C-2”, “C-3” and “C-4”.

32. Even if AFP Regulations G 161-375 is deemed effective and enforceable, it has been partially repealed by R.A. No. 10368 as far as the burial of Marcos is concerned.

33. The statutory declaration that the martial law victims of human rights atrocities are the authentic heroes and Marcos is the oppressor and violator is clearly repugnant to the entitlement of Marcos to be buried in the Cemetery of Heroes.

34. This repugnance satisfies the standard of effecting a repeal by implication as held in Remman Enterprises, Inc., et al. vs. Professional Regulatory Board of Real Estate Service, et al., 726 Phil 104, 118-119 (2014), which was cited by the majority Decision.

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35. The repealing clause under Sec. 31 of R.A. No. 10368 provides that “All laws, decrees, executive orders, rules and regulations or parts thereof inconsistent with any of the provisions of this Act x x x are hereby repealed, amended or modified accordingly.”

36. Verily, any entitlement of Marcos for burial in the LNMB under the AFP Regulations is contrary to R.A. No. 10368’s determination and validation that Marcos is culpable of human rights atrocities which effectively bars his burial in the Cemetery of Heroes.

37. Moreover, under the disqualification clause of AFP Regulations G 161-375, Marcos is not entitled to interment in the LNMB because he had been “dishonorably discharged from the service”.

38. The sovereign people in the EDSA People Power Revolution discharged Marcos both as President and Commander-in-Chief, the highest position of a soldier in the military hierarchy.

39. This sovereign discharge is the supreme action of the people which is much higher than a dishonorable discharge ordered by a civil or military tribunal. III. THERE ARE LAWS AND SUPREME COURT DECISIONS WHICH MILITATE AGAINST AND EFFECTIVELY PROHIBIT THE MARCOS BURIAL IN THE LNMB.

40. We respectfully beg to disagree with the majority decision that maintains that there are no laws which bar the burial of the late dictator Marcos in the LNMB. In fact, there are, like Republic Act No. 289 or the “Pantheon for Presidents, Heroes, and Patriots Act”, Republic Act No. 10368 or the “Human Rights Victims Reparation and Recognition Act of 2013”, Republic Act No. 10353 or the “Anti-Enforced or Involuntary Disappearance Act of 2012” and decisions of the Honorable Supreme Court which are part of Philippine laws.

Republic Act No. 289

41. Republic Act No. 289 or the “Pantheon for Presidents,

Heroes, and Patriots Act”, which was enacted on 16 June 1948, is the precursor of all issuances on memorial shrines or cemeteries for former Presidents, heroes and patriots.

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42. The salutary objective of R.A. 289 is “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”. (Emphasis supplied).

43. This ennobling purpose encompasses all subsequent shrines or memorials as interment grounds for former Presidents, heroes and patriots, irrespective of the time it was constituted and its location, like the Libingan ng mga Bayani in Taguig City.

44. Despite the fact that the “National Pantheon” had not been constructed in the original location earmarked for it, the said statute has not been repealed and still exists with its salutary objective covering all subsequent shrines or memorial grounds.

45. The late dictator Ferdinand Marcos does not satisfy the criterion of being an inspiration or emulation for Filipino generations because he was a dictator, plunderer and violator of human rights.

Republic Act No. 10368

46. Republic Act No. 10368 or the “Human Rights Victims Reparation and Recognition Act of 2013” enacted on 25 February 2013 hails the victims of human rights violations during Marcos’ martial law regime as the authentic heroes, while it condemns the late tyrant Marcos as the violator of human rights.

47. The Declaration of Policy under Sec. 2 of R.A. No. 10368 pertinently and unequivocally provides:

“x x x 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).

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48. Under the foregoing Declaration of Policy, the following

are unmistakably established: (a) The subject victims of summary execution, torture,

enforced or involuntary disappearance and other gross human rights violations are recognized as heroes;

(b) The inordinate atrocities violative of human rights were

committed during the regime of former President Ferdinand Marcos covering the martial law period from 21 September 1972 to 25 February 1986; and

(c) Implicit in the foregoing declarations are that the human rights violation victims (HRVVs) are indubitably the heroes and patriots, while the late President Marcos was the oppressor and violator.

(d) Verily, as the oppressor of the HRVVs and violator of human rights, the late dictator is not entitled to be buried in the Libingan ng mga Bayani.

49. R.A. No. 10368 also ensnares the culpability of Marcos for

human rights violations under Sec. 3 (b.1) and (b.5) on Definition of Terms, to wit:

“(b) Human rights violation refers to any act or

omission committed during the period from September 21, 1972 to February 25, 1986 by persons acting in an official capacity and/or agents of the State, but shall not be limited to the following:

“(1) Any search, arrest and/or detention

without a valid search warrant or warrant of arrest issued by a civilian court of law, including any warrantless arrest or detention carried out pursuant to the declaration of Martial Law by former President Ferdinand E. Marcos as well as any arrest, detention or deprivation of liberty carried out during the covered period on the basis of an ‘Arrest, Search and Seizure Order (ASSO)’, a ‘Presidential Commitment Order (PCO)’ or a ‘Preventive Detention Action (PDA)’ and such other similar executive issuances as defined by decrees of former President Ferdinand E. Marcos, or in

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any manner that the arrest, detention or deprivation, of liberty was effected;

x x x x x x x x x

“(5) Any act of force, intimidation or deceit

causing unjust or illegal takeover of a business, confiscation of property, detention of owner/s and or their families, deprivation of livelihood of a person by agents of the State, including those caused by Ferdinand E. Marcos, his spouse Imelda R. Marcos, their immediate relatives by consanguinity or affinity, as well as those persons considered as among their close relatives, associates, cronies and subordinates under Executive Order No. 1, issued on February 28, 1986 by then President Corazon C. Aquino in the exercise of her legislative powers under the Freedom Constitution”. (Emphasis supplied).

50. R.A No. 10368 also mandates that the Human Rights

Violations Victims’ Memorial 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.” (Sec. 27) Obviously, the burial of Marcos in the LNMB will be a patent mockery because while students are taught at all levels about the atrocities of martial law and the sacrifices of HRVVs, the very tormentor and oppressor is honored in the Cemetery of Heroes.

Republic Act No. 10353

51. The declaration of policy of R.A. No. 10353 enunciates

that:

“Furthermore, the State adheres to the principles and standards on the absolute condemnation of human rights violations set by the 1987 Philippine Constitution and various international instruments such as, but not limited to, the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to

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which the Philippines is a State party.” (Emphasis supplied).

52. The indelible commitment of the Philippines to the

protection and promotion of human rights is patently violated by the undeserved burial of Marcos in the LNMB, the perpetrator of human rights atrocities.

53. While it is true that the foregoing statutes do not

expressly prohibit the burial of the late dictator Marcos in the Cemetery of Heroes, the very spirit and intent of said laws proscribes the interment of Marcos in the LNMB because the late tyrant and violator of human rights committed the very acts which these important pieces of legislation condemn and scorn.

Relevant Supreme Court Decisions

54. Article VIII of the Civil Code of the Philippines provides

that “Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.”

55. The Honorable Supreme Court has rendered in the past

decisions recognizing the plunder of the economy by Marcos and his commission of heinous human rights violations, which decisions are part of the law of the land.

56. In PCGG vs. Peña (G.R. No. 77663, April 12, 1988), the Supreme Court sustained the creation of the Presidential Commission on Good Government (PCGG) “Given the magnitude of the past regime’s organized pillage”. The Supreme Court ruled that:

“The very first Executive Order issued by President Corazon C. Aquino after her assumption of office and the ouster of deposed President Ferdinand E. Marcos on February 25, 1986 was Executive Order No. 1 issued on February 28, 1986 creating the Presidential Commission on Good Government, charging it with the task of assisting the President in regard to the "recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their

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public office and/or using their powers, authority, influence, connections or relationship."

x x x x x x x x x

“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.” (Emphasis supplied).

57. In Marcos vs. Manglapus (G.R. No. 88211, September

15, 1989), the Supreme Court gave judicial notice to the “precarious state of our economy” due to plunder of the economy attributed to the Marcoses, their relatives and cronies, in barring his return, together with his immediate family, to the Philippines. It ruled that:

“The resolution of the problem is made difficult

because the persons who seek to return to the country are the deposed dictator and his family at whose door the travails of the country are laid and from whom billions of dollars believed to be ill-gotten wealth are sought to be recovered…”

x x x x x x x x x

“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 … 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

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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 supplied). 58. In Republic of the Philippines vs. Sandiganbayan

(G.R. No. 152154, July 15, 2003), the Honorable Supreme Court forfeited the amounts transferred to the Philippines by the Swiss Supreme Court in favor of the Republic of the Philippines as Marcos’ ill-gotten wealth, which was deposited in escrow with the Philippine National Bank in the estimated aggregate amount of US$658,175,373.60 as of January 31, 2002, plus interest. It held that:

“The pattern of: 1) creating foundations, 2) use of

pseudonyms and dummies, 3) approving regulations of the Foundations for the distribution of capital and income of the Foundations to the First and Second beneficiary (who are no other than FM and his family), 4) opening of bank accounts for the Foundations, 5) changing the names of the Foundations, 6) transferring funds and assets of the Foundations to other Foundations or Fides Trust, 7) liquidation of the Foundations as substantiated by the Annexes U to U-168, Petition [for forfeiture] strongly indicate that FM and/or Imelda were the real owners of the assets deposited in the Swiss banks, using the Foundations as dummies.”

x x x x x x x x x

“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”. (Emphasis supplied).

59. In Mijares vs. Ranada (G.R. No. 139325, April 12, 2005), the Supreme Court empathized with the “cries of justice for the tortured, the murdered, and the desaparecidos” during the martial law regime. It was held that:

“Our martial law experience bore strange

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unwanted fruits, and we have yet to finish weeding out its bitter crop. While the restoration of freedom and the fundamental structures and processes of democracy have been much lauded, according to a significant number, the changes, however, have not sufficiently healed the colossal damage wrought under the oppressive conditions of the martial law period.

“The cries of justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of reparations due within the confines of the restored rule of law.

“The petitioners in this case are prominent

victims of human rights violations who, deprived of the opportunity to directly confront the man who once held absolute rule over this country, have chosen to do battle instead with the earthly representative, his estate x x x.” (Emphasis supplied). 60. In addition to the aforesaid decisions of the Supreme

Court, (a) the Supreme Court of Switzerland validated on 10 December 1997 the ill-gotten hoard of Marcos in this wise: “there was little doubt about the criminal provenance of the secret Marcos accounts and securities hidden in the Swiss banks”; and (b) the Hawaii US District Court validated the claims of almost 10,000 victims of martial law atrocities and condemned the estate of Marcos to pay the resultant damages because meanwhile Marcos had died.

Primacy of the spirit or intent of the law

61. An unbroken catena of Supreme Court decisions holds

that the moving spirit or intent of the law must be given primacy and efficacy, to wit:

a. The intent or spirit of the law is the law itself. (U.S. vs. Tamparong, 31 Phil. 321 [1915]; Torres vs. Limjap, 56 Phil.

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141 [1931]; Tamayo vs. Gsell, 35 Phil. 953 [1916]; Senerillas vs. Hermosisima, 100 Phil. 501 [1956]).

b. The legislative intent or spirit is the controlling

factor, the leading star and guiding light in the application and interpretation of a statute (Yellow Taxi & Pasay Transp. Workers’ Union vs. Manila Yellow Taxi Taxi Cab Co., 80 Phil. 833 [1948]; Ledesma vs. Pictain, 79 Phil 95 [1947]; Garcia vs. Ambler, 4 Phil. 81 [1904]; McMicking vs. Lichauco, 27 Phil. 386 [1914].

c. The spirit, rather than the letter, of a statute determines its construction (Hidalgo vs. Hidalgo, G.R. No. 25326, May 29, 1970, 33 SCRA 105), hence, a statute must be read according to its spirit or intent (Roa vs. Collector of Customs, 23 Phil. 315 [1912]). 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 (People vs. Purisima, G.R. No. 42050, November 20, 1978). Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the letter; and a thing which within the letter of the statute is not within the statute unless within the intent of the lawmakers (Alonzo vs. IAC, 150 SCRA 259 [1987]).

d. The policy of the law, once ascertained should be given effect by the judiciary (Macabenta vs. Davao Stevedoring Terminal, G.R. No. 27489, April 30, 1970). A construction which would carry into effect the evident policy of the law should be adopted in favor of that interpretation which would defeat it (Nilo vs. Court of Appeals, G.R. No. 34586, April 12, 1984). A decent respect for the policy of the law must save the court from imputing to it a self-defeating, if not disingenuous, purpose (Bocobo vs. Estanislao, G.R. No. 30458, August 31, 1976).

e. In construing a statute, the purpose or object of the law or the mischief intended to be removed or suppressed and the cause which induced the enactment of the law are important factors to be considered in its construction (Caltex Phils. vs. Palomar, G.R. No. 19650, September 29, 1966). The court must look to the object to be accomplished, the evils to be remedied, or the purpose to be subserved, and should give the law a reasonable or liberal construction which will best effectuate its purpose (Home Insurance Co. vs. Eastern Shipping Lines, G.R. No. 34382, July 20, 1983). A statute must be read in such a way as to give effect to

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the purpose projected in the statute (Lopez vs. Court of Appeals, 215 SCRA 512). For a statute derives its vitality from the purpose for which is enacted and to construe it in a manner that disregards or defeats such purpose is to nullify or destroy the law (Sarcos vs. Castillo, G.R. No. 29755, January 31, 1969).

f. A construction to avoid injustice is favored. It is presumed that undesirable consequences were never intended by a legislative measure, and that a construction of which the statute is fairly susceptible is favoured, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. The presumption is that the legislature, in enacting a law, did not intend to work a hardship or an oppressive result, a possible abuse of authority or act of oppression, arming one person with a weapon to impose hardship on another (Agpalo, Statutory Construction 5th ed., [2003], p. 153 citing: People vs. Purisima, G.R. No. 42050, November 20, 1978). Ea est acciepienda interpretation quae vitio caret. That interpretation is to be adopted which is free from evil or injustice. (Agpalo, Statutory Construction 5th ed., [2003], p. 153).

g. A construction to avoid danger to public interest is also favored. It is a well-established rule of statutory construction that where great inconvenience will result, or great public interest will be endangered or sacrificed, or great mischief done, from a particular construction of a statute, such construction should be avoided. Courts should presume that such construction was not intended by the makers of the law (Agpalo, Statutory Construction 5th ed., [2003], p. 156 citing: Co Kim Chan v. Valdez Tan Keh, 75 Phil. 113 [1945]) The drafters of the law could not have intended to create such a deplorable or impossible situation (Agpalo, Statutory Construction 5th ed., [2003], p. 177 citing: Pritchard vs. Republic, 81 Phil. 244 [1948]).

62. Verily, the legislative spirit and intent of Republic

Act No. 289, Republic Act No. 10368 and Republic Act No. 10353, as well as the relevant aforecited Supreme Court decisions, militate against the interment of Marcos – a tyrant, despot, plunder and violator of human rights – in the Cemetery of Heroes. The spirit of the said laws and Supreme Court decisions effectively prevent the interment of Marcos in the Cemetery of Heroes. IV. THE MESSAGE OF THE EDSA PEOPLE POWER REVOLUTION IS CLEAR AND

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RESOUNDING: MARCOS WAS OUSTED FOR BEING A DESPOT, PLUNDERER AND VIOLATOR OF HUMAN RIGHTS.

63. The interment of Marcos in the LNMB would completely nullify all that the EDSA People Power Revolution stands for: the overthrow of an unjust and corrupt regime presided over by a dictator, plunderer and transgressor of human rights. It would desecrate the spirit of EDSA. It would entomb a ruthless authoritarian and an insatiable pillager who was ousted by the sovereign people in the hallowed memorial for just and honorable men and women. It would malevolently reverse history.

64. The burial of the late dictator Marcos in the LNMB would

sweep under the rug of impunity the following cardinal sins of Marcos against the Filipino nation:

(a) Marcos imposed martial law for malevolent and contrived reasons to perpetuate himself in power even as he transgressed the sovereign will. He masterminded this power grab which lasted for 14 ignominious years

In a privilege speech on September 13, 1972, 10 days before

martial law was declared, then Senator Benigno Aquino, Jr. exposed “Oplan Sagittarius” wherein Marcos would place Metro Manila and outlying areas under the control of the Philippine Constabulary preparatory to the declaration of martial law. Series of bombings would erupt in Metro Manila which would be used to justify Marcos’ complete takeover of the government and usher in authoritarian rule.

On the night of September 22, 1972, then Defense Secretary Juan Ponce Enrile claimed that as they were driving out of Camp Aguinaldo, gunshots were fired from a speeding car at his convoy. This incident was used by Marcos as one of the pretexts for the martial law imposition.

In 1986, when Enrile turned against Marcos, he disclosed that the ambush was staged to justify martial law. (Official Gazette website).

(b) He padlocked the Congress and arrogated the role of sole legislator, and in the process negated popular representation in the enactment of laws and adoption of national policies.

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(c) To further stifle dissent, he incarcerated titans in the political opposition like the relentless human rights advocate Senator Jose W. Diokno; the venerable nationalist Lorenzo Tañada; the staunch oppositionist Senator Benigno Aquino, who was perceived as a presidential contender; the great libertarian Senator Jovito Salonga; the then promising Senator Ramon Mitra, Jr.; and human rights lawyer Joker Arroyo.

(d) He emasculated the judiciary and virtually derogated

judicial independence.

Marcos promulgated General Order No. 2 dated 22 September 1972 which implemented the Arrest, Search and Seizure Order (ASSO). Through ASSO, he, not the courts, ordered the arrest of prominent members of the opposition, leftist personalities and even ordinary citizens.

A week later on September 29, 1972, he issued Letter of

Instruction No. 11 (LOI 11) which commanded that, “all officers of the national government whose appointments are vested in the President of the Philippines submit their resignations from office, through their Department Heads, not later than October 15, 1972”, including members of the judiciary, except for the Supreme Court Justices and Chairmen and Members of the Constitutional Commissions.

Marcos was so influential over certain Justices of the Supreme

Court then, that when leaders of the opposition challenged the validity of the “ratification” of the 1973 Constitution by mere acclamation of “Citizens’ Assemblies”, and not through a requisite plebiscite, the High Court shockingly upheld the so-called raising-of-hands “ratification”.

Through the PCO (Presidential Commitment Order) and the PDA (Preventive Detention Action), Marcos arrested and detained alleged “enemies of the State” indefinitely and denied them the rights to bail and trial. This indubitably depreciated the role of the judiciary.

(e) He wantonly violated the people’s economic, social and

cultural rights as well as their civil and political rights. (Acknowledged in Mijares vs. Ranada, G.R. No. 139325, April 12, 2005).

In the guise of fighting communism, numerous political

dissenters and critics of the Marcos regime were harassed, arrested, detained, jailed, tortured, and/or summarily executed/massacred or involuntarily disappeared. Villages or communities were dislocated as

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bombings and strafing, forced evacuations and hamletting were dreadfully practiced in war zones when the government implemented the total war policy against the insurgents. Notwithstanding the difficulty of gathering data and documenting human rights violations amidst the repressive martial law regime, from September to December 1972, Task Force Detainees of the Philippines recorded 6,295 unwarranted arrests. These rose to 29,500 at the end of 1973. At the end of the Marcos regime, these arrests totaled 92,607. Partial listing of torture cases over the same period (September 1972 to February 1986) reached 5,531 and summary executions totaled 2,537. Petitioner Families of Victims of Enforced Disappearances (FIND) painstakingly documented 856 victims of enforced disappearances during the martial law regime, although there are much more unreported victims of involuntary disappearances. Desaparecidos are the most tragic victims of human rights violations because not even crude crosses mark their unknown graves.

(f) He forcibly closed media outlets and detained Joaquin

“Chino” Roces, the founder of Manila Times and the Associated Broadcasting Company, and other prominent journalists. He suppressed the freedom of expression and of the press. He closed 292 radio stations all over the country; 66 community newspapers; 11 English weekly magazines; 7 major English dailies; 7 television stations; 4 Chinese dailies; 3 Filipino dailies; 1 English-Filipino daily; and 1 Spanish daily. (philstar.com, “By the numbers: What happened during martial law” by Rosette Adel, updated 23 September 2016).

(g) He either closed or took over the management, control, and

operation of public utilities like the Manila Electric Company, Philippine Long Distance Telephone Company, National Waterworks and Sewerage Authority, Philippine National Railways, Philippine Airlines, Air Manila, and Filipinas Orient Airways, (LOI No. 2, s. 1972) and private enterprises, i.e., Iligan Integrated Steel Mills, Inc. and the Elizalde Rolling Mills, Inc. (LOI No. 27, s. 1972).

(h) He plundered the economy and inordinately amassed ill-

gotten hoards. The Freedom from Debt Coalition (FDC) estimates that the Marcos’ ill-gotten wealth ranged from a low of US$5 billion to as high as US$30 billion. A fair estimate of his ill-gotten hoard amounts to no less than US$10 billion. (a portion of the ill-gotten hoard of Marcos was validated in Republic vs. Sandiganbayan, G.R. No. 152154, July 15, 2003).

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(i) He allowed cronies to inordinately and criminally enrich

themselves through errant contracts, government-guaranteed behest loans, and skewed projects as well as discriminatory and flawed polices in various industries: coconut, banana, tobacco, logging, mining, offshore gaming, pharmaceuticals, construction, and of course, nuclear energy. (Garcia, M.A. 2016) Reports have it that 33% of Marcos regime’s loans, equivalent to US$8 billion, went to Marcos and his cronies’ pockets. (FDC; PCGG vs. Peña, G.R. No. 77663, April 12, 1988; and Marcos vs. Manglapus, G.R. No. 88211, September 15, 1989 recognized Marcos as a plunderer).

(j) He ballooned the foreign debt, much of the proceeds of

which funded projects and programs which did not benefit the Filipino people.

The Marcos regime’s insatiable appetite for foreign loans jacked up the Philippine foreign debt from US$1 billion at the start of his presidency in 1965 to US$28 billion by the time he was ousted in 1986. (FDC; also documented in PCGG vs. Peña, supra). For decades after Martial Law, foreign debt servicing, including for Marcos’ behest loans, gobbled up nearly half of the national budget, effectively dislodging critical economic and social services. (Acknowledged in Marcos vs. Manglapus, G.R. No. 88211, September 15, 1989). The Bataan Nuclear Power Plant (BNPP) is a monstrous monument of Marcos’ corrupt dictatorship. It represents the single biggest tainted foreign loan during martial law. From a P650 million nuclear facility, the BNPP’s defective construction was completed sometime in 1984 with the cost ballooning out of proportion. Debt service payments amounted to $4.2 billion, although the country is still spending millions of pesos annually for the “preservation” of the BNPP. In fact, more than P50 million is appropriated for 2017.

However, the country’s benefit from the nuclear power plant continues to be zero. It has never been operated because of multiple hazardous defects. It was reported that, through a crony, Marcos received an $80 million payoff. The project was initiated and pursued with little or no regard for actual energy generation and the attendant safety factors. The overriding concern centered on the windfall commissions.

(k) He submerged the economy to below zero. Standing out

was its record of having been the only administration to register a

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negative GDP growth. The economy decelerated at -7% in 1984.

(Solon, O. and Floro, M., 1993. The Philippines in the 1980s: A Review of National and Urban Level Economic Reforms. Retrieved from http://siteresources.worldbank.org/INTURBANDEVELOPMENT/

Resources/336387-1169585750379/twurdwp1.pdf)

Also standing out was its horrific inflation record. After posting a high inflation rate of almost 40% in 1976, the regime topped its own record with 50.3% inflation rate in 1984, again the highest among all administrations.

Even conservative government statistics reveal 59.3% of

Filipino families to have fallen below the poverty line toward the end of the Marcos regime in 1985.

65. For Marcos’ grievous sins against the Filipino people, he was ousted and discharged as President and Commander-in-Chief by popular action of the sovereign people on 25 February 1986.

66. A President deposed for grievous sins against the Filipino people cannot be honored with a burial in the Cemetery of Heroes. V. WHEN THE TOTALITY OF MARCOS AS A MAN IS WEIGHED IN THE BALANCE, WHATEVER ACHIEVEMENTS HE HAS DONE FOR THE COUNTRY ARE COMPLETELY NULLIFIED BY HIS CARDINAL SINS AGAINST THE NATION, FOR WHICH HE IS NOT ENTITLED TO BE BURIED IN THE LNMB.

67. The LNMB is not just a cemetery. The name Libingan ng mga Bayani is not a mere figurative description. It is truly an ennobling name for a final resting place for good men who have made the country proud and have rendered patriotic service to the nation.

68. In justifying the interment of Marcos in the Cemetery of

Heroes, the majority decision pronounced that, “We agree with the proposition that Marcos should be viewed and judged in his totality as a person. While he was not all good, he was not pure evil either. Certainly, just a human who erred like us.

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69. With due respect, the foregoing pronouncement utterly

failed to recognize the following:

a. Applying the totality doctrine on Marcos as a man, the weight of his misrule as a dictator, as plunderer of the economy and as a perpetrator of atrocities against human rights overwhelmingly outweigh his much ballyhooed infrastructure achievements which were pursued with corrupt underpinnings.

b. While Marcos was a soldier, albeit one who faked his war

exploits and medals, he has lamentably metamorphosed into a tormentor and oppressor of his own people, until the 1986 EDSA People Power Revolution ousted him as a tyrant.

c. The death of Marcos saved him from criminal conviction for his human rights atrocities and plunder. However, his demise did not give him a passage to heroic immortality. His burial in the LNMB can neither cleanse him of his sins nor consecrate his misdeeds.

d. A high wall cannot separate Marcos as a former soldier on one hand, and a despot and oppressor of a president on the other. We cannot say that here lie his remains as a soldier, while his remains as a dictator and authoritarian president lie elsewhere.

e. When Marcos became a grossly errant and notorious Chief Executive and Commander-in-Chief, any dichotomy of Marcos as a soldier and his having been President is completely blurred. The man in his totality must be assessed. Verily, the resulting assessment is that whatever good deeds he had done are completely invalidated by the evils he had committed.

f. He did not err as an ordinary human being. The magnitude of his transgressions permeated and ruined the very core of a democratic Philippine society as well as its then developing economy. Well-meaning economists empirically document that Marcos’ corrupt and flawed regime set back the country’s development by no less than two decades.

g. Post-martial law administrations had difficulty catching up

with Asian neighbors which have prospered during the martial law years while the Philippines was downgraded as the “sick man of Asia”.

70. With all of the foregoing irrefutable adverse

circumstances, it is strange why Marcos should be handled with kid

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gloves and rewarded with an undeserved interment in the Cemetery of Heroes.

71. In other countries, disgraced leaders’ monuments are

demolished, their replicas and artifacts erased and discarded, streets and public plazas in their honor are renamed, and in Pamplona, Spain, the mortal remains of two fascist generals are to be exhumed this month from a heroes’ cemetery, the Monumento a los Caidos (Monument to the Fallen) and will be returned to their respective families [“Spain is about to dig up the remains of Franco's generals”, The Local, 02 November 2016, http://www.thelocal.es/20160902/spain-is-digging-up-the-remains-of-francos-generals].

72. Yes, all humans err. But Marcos erred most

grievously. He sinned not only against a few, but against the multitude of Filipinos. His misrule and avarice led to the bankruptcy of the nation. He must not be rewarded with a burial in the Libingan ng mga Bayani.

VI. THE MARCOS FAMILY HAS WAIVED HIS BURIAL IN THE LNMB 24 YEARS AGO.

73. Former President Fidel V. Ramos, on behalf of the Republic of the Philippines, consented to the return to the Philippines of the mortal remains of Marcos sometime in September 1992 (the remains arrived on 07 September 1992 at the Laoag International Airport) subject to four overriding conditions, namely:

(a) The remains of the late dictator shall be flown directly to Laoag, Ilocos Norte;

(b) No stop-over or honors in Manila or elsewhere;

(c) He would be accorded honors in Ilocos Norte befitting a major of the Armed Forces, the highest rank he has attained; and

(d) He should be buried without undue delay in Batac, Ilocos

Norte.

74. The Marcos family agreed to the conditions. In fact, a Memorandum of Agreement was executed on 19 August 1992 between the Government of the Republic of the Philippines,

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represented by Department of the Interior and Local Government Secretary, Rafael M. Alunan III, and the family of the late President Marcos, represented by this widow, Mrs. Imelda R. Marcos.

75. The subject Memorandum of Agreement essentially

contained the abovementioned conditions, to wit:

(a) “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.”

(b) “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.”

(c) “That the remains shall be buried 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 of the Philippine Government taking into account the prevailing socio-political climate.”

(d) “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 hereto.”

76. A copy of the signed Memorandum of Agreement was

submitted by former DILG Secretary Alunan to the Honorable Court. Secretary Alunan informed the Honorable Supreme Court in open session that he objected and did not initial the handwritten intercalation of Mrs. Marcos reading “temporarily interred” between the phrase “That the remains shall be” and the word “buried” found under numeral IV of page 1 of the Memorandum of Agreement.

77. All of the conditions were complied with by the Marcos

family, except the condition that the remains of Marcos be buried at the Marcos family burial grounds in Batac, Ilocos Norte. Instead of an underground interment, the purported remains of Marcos were displayed in a refrigerated crypt at the mausoleum of the Marcos family in Batac, Ilocos Norte for the past 24 years or almost a quarter of a century.

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78. Under the subject Memorandum of Agreement, the Marcos family has irrevocably waived any “entitlement” of Marcos to be buried in the Libingan ng mga Bayani. In fact, there is no mention whatsoever of the LNMB.

79. Moreover, after almost a quarter of a century, the Marcos family is in estoppel or guilty of laches which bars the enforcement of a stale demand. They have not instituted any formal demand or action for the past 24 years for Marcos’ remains to be buried in the Libingan ng mga Bayani.

80. In Catholic Bishop of Balanga vs. Court of Appeals (G.R. No. 112519, November 14, 1996), it was ruled that:

“Laches means the failure or neglect for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting the presumption that the party entitled to assert it either has abandoned or declined to assert it. It has also been defined as such neglect or omission to assert a right taken in conjunction with the lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a bar in equity.

x x x x x x x x x

“The doctrine of laches or of stale demands is

based upon grounds of public policy which requires, for the peace of society, the discouragement of stale claims and . . . is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted.

“The time-honored rule anchored on public policy is that relief will be denied to a litigant whose claim or demand has become "stale", or who has acquiesced for an unreasonable length of time, or who has not been vigilant or who has slept on his rights either by negligence, folly or inattention. In other words, public policy requires, for the peace of society, the discouragement of claims grown stale for non-assertion; thus laches is an impediment to the assertion or enforcement of a right which has become, under the circumstances, inequitable or unfair to permit.”

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81. Consequently, granting arguendo that Marcos was

entitled to be interred in the LNMB, said “right” has been waived and is barred by estoppel and laches.

82. After openly defying the condition that Marcos be buried

(underground interment) in Batac, Ilocos Norte, the Marcos family cannot be heard now to seek transfer to another burial ground under the Memorandum of Agreement. One who violates a major stipulation in an agreement cannot seek the enforcement of another stipulation. A party who breaks a contract cannot be rewarded with an option to demand the enforcement of another contractual condition. It is a truism that one must come to a forum with clean hands.

83. Since the subject Memorandum of Agreement is not against the law or public policy, it subsists and is effective. It was binding on the administrations of President Joseph Estrada, President Gloria Macapagal-Arroyo and President Benigno Aquino III. It is also binding with the same legal efficacy on President Rodrigo Duterte.

84. Moreover, it is not mandatory that all past Presidents be buried in the Libingan ng mga Bayani. In fact, only three former Presidents – President Elpidio Quirino, President Carlos Garcia and President Diosdado Macapagal – are interred in the Libingan ng mga Bayani.

85. On the issues alone of waiver and estoppel, the entitlement of a Marcos burial in the LNMB is irretrievably foreclosed. To recapitulate, the following are incontrovertible:

a. The subject Memorandum of Agreement between the Republic of the Philippines and the Marcos family is a valid contract. It is verily binding on both parties.

b. Being a valid contract, it cannot be impugned or

abandoned by the supervening Duterte administration.

c. The prescriptive period of ten (10) years within which to challenge the validity of a contract or seek the enforcement of a stipulation has long prescribed. The Memorandum of Agreement is now unassailable.

d. The Memorandum of Agreement or contract constitutes a valid waiver on the part of the Marcos family, and they are now

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estopped from claiming any entitlement of a Marcos burial in the Cemetery of Heroes.

e. Having breached the contract for not burying the mortal remains of Marcos underground in Batac, Ilocos Norte, the Marcos heirs have no right to claim the enforcement of any provision in the Memorandum of Agreement which they have violated.

86. The majority decision ruled that “President Duterte is not

bound by the alleged 1992 agreement” (Memorandum of Agreement between the Republic of the Philippines and the Marcos family). It also opined that “As the incumbent President, he is free to amend, revoke or rescind political agreements entered into by his predecessors, and to determine policies which he considers, based on informed judgment and presumed wisdom, will be most effective in carrying out his mandate.”

87. Petitioners beg to disagree. The subject Memorandum of

Agreement is not a mere political agreement. It is a State contract entered into on behalf of the Republic of the Philippines. It is a valid and enforceable government contract. Its validity has never been impugned. It cannot be amended, revoked or rescinded by the mere say-so of a subsequent incumbent President in order to honor a personal campaign promise.

88. If the sanctity of private contracts are protected by the “non-impairment clause” provided for in the Bill of Rights, with more reason valid State contracts shall be inviolable. The President has no authority to breach binding government contracts under his Executive powers. VII. THE INSTANT CASES DO NOT INVOLVE A POLITICAL QUESTION, WHICH IS AN ALMOST EXTINCT INVOCATION.

89. In ruling that the petitions at bar involve a “political question” which is not justiciable controversy, the majority decision held that:

“The Court agrees with the OSG that President Duterte's decision to have the remains of Marcos interred at the LNMB involves a political question that is not a justiciable controversy. In the exercise of his powers under the Constitution and the Executive Order (E.O.) No. 292 (otherwise

30

known as the Administrative Code of 1987) to allow the interment of Marcos at the LNMB, which is a land of the public domain devoted for national military cemetery and military shrine purposes, President Duterte decided a question of policy based on his wisdom that it shall promote national healing and forgiveness. There being no taint of grave abuse in the exercise of such discretion, as discussed below, President Duterte's decision on that political question is outside the ambit of judicial review.”

90. The foregoing pronouncement is summarized as follows: a. President Duterte under the Constitution and the

Administrative Code of 1987 has the power to allocate a portion of the public domain for national military cemetery and military shrine purposes;

b. President Duterte’s allowing the interment of Marcos in

the LNMB was a policy decision “based on his wisdom that it shall promote national healing and forgiveness”; and

c. There is no taint of grave abuse in the exercise of such discretion, for which reason President Duterte’s decision on such political question is outside the ambit of judicial review.

91. We again respectfully beg to disagree for the following

reasons: a. The burial of Marcos in the LNMB is justiciable because it

would resolve the justice and legality of such an undeserved interment which honors a tyrant, pillager and human rights oppressor.

b. President Duterte’s claim that the burial of Marcos in the LNMB will “promote national healing and forgiveness” has been completely debunked by the escalating nationwide protests and continuing cogent commentaries against the interment of the so-called “mortal remains” of Marcos in the LNMB. There can never be healing and forgiveness if such is pursued at the expense of the victims of martial law. Definitely, “healing and forgiveness” cannot be attained without justice to the victims of martial rule.

c. The burial of Marcos in the LNMB cannot be justified by citing the power of the President under the Constitution and the

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Administrative Code to reserve a portion of the public domain for the construction and maintenance of memorial grounds or cemeteries for public purposes. While such power is not denied, the question is who are entitled to be interred in such a memorial cemetery. Marcos is not entitled as he is a despot, plunderer and transgressor of human rights.

d. Granting arguendo that the burial of Marcos in the LNMB is a policy decision of President Duterte, which is sought to be implemented by the public respondents, the formulation and exercise of such policy is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction because the extant laws and jurisprudence militate against and effectively prevent such an undeserved burial.

e. In support of the position that the petitions at bar do not involve a “political question” the Preliminary Statement which prefaced this motion for reconsideration is repleaded:

“7. It is not hard to comprehend that the interment of Marcos in the Cemetery of Heroes is inextricably intertwined with the late dictator’s imposition of martial law which spawned inordinate oppression, corruption and plunder for 14 ignominious years and even beyond.

“8. It is not hard to understand that

allowing his burial in the Libingan ng mga Bayani is a veritable honor accorded to a disgraced President and Commander-in-Chief who was deposed by the sovereign people for having committed grievous sins against the Filipino people as acknowledged by no less than the Honorable Supreme Court in a number of landmark decisions and validated by foreign judicial tribunals.

“9. His burial in the memorial of good men

impedes on the continuing quest for illusive justice for the victims of martial law, perpetuates the impunity of his transgressions and mocks the unfinished task of recovering his hoard of ill-gotten wealth.

“10. These are the very reasons why the

Marcos burial in LNMB transcends politics. These are the very reasons why President Duterte’s policy

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on burying Marcos in the LNMB is not a political question which is beyond the judicial scalpel to excise.

“11. These are the very reasons why such a

policy is flawed and its implementation is tainted with gross abuse of discretion amounting to lack or excess of jurisdiction because it violates the Constitution, relevant statues and pertinent decisions of the Honorable Supreme Court, all of which are justiciable.

“12. It is not remote to realize that the

Marcos burial in the Libingan ng mga Bayani is a gross distortion, a malevolent revision and a wanton derogation of Philippine history.”

92. Suffice it to say that the instant Petitions are justiciable

and outside the ambit of the doctrine of “political question” which is becoming almost extinct in view of the expanded judicial review power of the Honorable Supreme Court under Section 1 of Article VIII of the Constitution.

93. The following rulings of the Honorable Supreme Court are

pertinent and instructive:

(a) In the case of Marcos vs. Manglapus (G.R. No. 88211, September 15, 1989), it was held that: “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.”

(b) In Daza vs. Singson (G.R. No. 86344, December

21, 1989) it was also held that: “In the case now before us, the

jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VIII, Section 1, of

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the Constitution clearly provides:

‘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.”

(c) In Coseteng vs. Mitra, Jr. (G.R. No. 86649, July

12, 1990), it further held that:

“The ‘political question’ issue was settled in Daza vs. Singson, G.R. No. 86344, December 21, 1989, where this Court ruled that ‘the legality, and not the wisdom, of the manner of filling the Commission on Appointments as prescribed by the Constitution’ is justiciable, and, "even if the question were political in nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII, Section 1, of the Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government.’”

(d) In Estrada vs. Disierto (G.R. No. 146710-15,

March 2, 2001) it was pronounced that: “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

34

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.

xxx xxx xxx

“Needless to state, the cases at bar pose legal

and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II, and section 8 of Article VII, and the allocation of governmental powers under section 11 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison, the doctrine has been laid down that ‘it is emphatically the province and duty of the judicial department to say what the law is . . .’ Thus, respondent's invocation of the doctrine of political question is but a foray in the dark.”

(e) In Belgica et al. vs. Hon. Executive Secretary,

et al. (G.R. No. 208566, November 19, 2013) the Supreme Court reiterated that:

“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

35

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.”

(f) In the Diocese of Bacolod, et. al vs. COMELEC

(G.R. No. 205728, January 21, 2015) it was also enunciated that:

“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. Even assuming arguendo that the COMELEC did have the discretion to choose the manner of regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

xxx xxx xxx

“To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new Constitution which expanded the definition of judicial power as including ‘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.’ As well observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably constricted the scope of political question. He opined that the language luminously suggests that this duty (and power) is available even against the executive and legislative departments including the President and the Congress, in the exercise of their discretionary powers.”

94. Verily, the invocation of “political question” against the petitions at bar is quixotic. The challenged “policy decision” to bury

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Marcos in the LNMB vitiates the Constitution, international covenants, relevant decisions of no less than the Honorable Supreme Court and statutes, more particularly R.A. No. 289 or the “National Pantheon Act”, R.A. No. 10368 or the “Human Rights Victims Recognition and Reparation Act of 2013”, and R.A. No. 10353 or the “Anti-Enforced or Involuntary Disappearance Act of 2012”. VIII. RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRE-TION AMOUNTING TO LACK OR EXCESS OF JURIS-DICTION.

95. No less than the majority decision opined, by citing Almario, et al. vs. Executive Secretary et al. (714 Phil. 127, 169 [2013]), that “There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill-will or personal bias.”

96. In the petitions at bar, the foregoing alternative characterizations of grave abuse of discretion obtain.

97. The adoption of the policy to bury Marcos in the LNMB and the acts of the public respondents seeking to implement such policy are contrary to the Constitution and international covenants, to which the Philippines is a state party, wherein the Republic of the Philippines adheres to the promotion and protection of human rights.

98. The interment of Marcos in the Cemetery of Heroes is a violation of the said constitutional and international commitment and adherence to human rights because Marcos is a violator of human rights as acknowledged by the Honorable Supreme Court as well as by foreign judicial tribunals. This ground will be more extensively discussed in the motions for reconsideration of the other petitioners in the allied cases.

99. The challenged policy and its implementation also contravene extant laws and jurisprudence as amply discussed above.

100. The writ of certiorari or prohibition will be granted whenever necessary to prevent a substantial wrong or to do substantial justice as averred and prayed for by the petitioners (Gutib vs. Court of Appeals, G.R. No. 131209, August 13, 1999). In Gutib, it was also held that “it is better on balance that we look beyond procedural requirements and overcome ordinary disinclination

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to exercise our supervisory powers. And this, to the end that the orders issued below may be controlled to make them conformable to law and justice.”

101. Disregarding rules the respondents are bound to observe constitutes gross abuse of discretion. This is the ruling in Almario, et al. vs. Executive Secretary et al., supra, and Jardin, et al. vs. NLRC (G.R. No. 119268, February 23, 2000).

102. The grave abuse of discretion of the public respondents acting pursuant to the flawed order of President Duterte, and their personal bias, are clearly manifested by their defiance of the following:

(a) Cardinal sins of Marcos against the Filipino people which render him unfit to be buried in the Libingan ng mga Bayani; (b) Judicial pronouncements, both by the Honorable Supreme Court and foreign tribunals, recognizing and validating Marcos’ plunder of the economy and his human rights atrocities, which also bar him from interment in the Cemetery of Heroes; (c) Constitutional provisions and precepts, relevant international covenants and statutes, which would be transgressed by a Marcos burial in the LNMB; (d) Ineligibility of Marcos to be buried in the LNMB even under AFP Regulations G-161-373 which is not effective and enforceable for not being filed and registered with the ONAR; and (e) The Marcos family’s waiver and the ensuing estoppel and laches barring an abandoned, belated and stale claim for a Marcos interment in the LNMB.

103. The challenged acts of the respondent in pursuing the

burial of the “mortal remains” of Marcos in the Libingan ng mga Bayani in the face of incontrovertible grounds legally militating against and effectively barring such burial, border on censurable whim and caprice as well as ill-motive constituting grave abuse of discretion amounting to lack or excess of jurisdiction.

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IX. PETITIONERS HAVE LOCUS STANDI, DID NOT VIOLATE THE “HIERARCHY OF COURTS” DOCTRINE, AND DID NOT HAVE TO EXHAUST ADMINISTRATIVE REMEDIES.

Petitioners have Locus Standi

104. The victims of martial law and their aggrieved relatives, who are among the petitioners, are clothed with the legal personality to institute the petitions at bar.

105. They had been traumatized as victims of human rights violations during the martial law regime and the undeserved burial of their very oppressor in the LNMB will further immeasurably traumatize them.

106. The burial of Marcos in the Cemetery of Heroes would be a betrayal of history where the victims of martial law are the authentic heroes and Marcos was the transgressor. The honor to be accorded to an oppressor and tyrant in the Libingan ng mga Bayani would inflict irreparable damages to the herein petitioners whose quest for justice and campaign to end impunity will be debased.

107. They have locus standi because the interment of Marcos in the Libingan ng mga Bayani denigrates their extreme sufferings, while their tormentor is honored in the memorial of good men.

108. Moreover, the recognition of locus standi has been liberally bestowed. The following decisions of the Honorable Supreme Court are pertinent and instructive:

(a) In Aquino vs. COMELEC (G.R. No. 189793, April 7, 2010), it was ruled that the procedural rule requiring locus standi is relaxed whenever the Court is confronted with an important issue of overreaching significance to society; and

(b) In David vs. Macapagal-Arroyo (489 SCRA 160), it

was ruled that “Presence of a clear case of disregard to the Constitution” and under the doctrine of “Paramount Public Interest” or “Transcendental Importance”, the requirement of locus standi is likewise relaxed.

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Exception from “Hierarchy of Courts” Doctrine

109. The instant Petitions were interposed directly with the Honorable Supreme Court as an exception to the doctrine of hierarchy of courts since the Petitions are impressed with primacy of public interest and transcendental issues, consistent with the rulings of the Honorable Supreme Court in Enrile vs. Salazar (186 SCRA 217); Burgos, Sr. vs. Chief of Staff (133 SCRA 800); Yong Chan Kim vs. People (176 SCRA 277); Republic vs. Court of Appeals (107 SCRA 504); and Tatad vs. Secretary of the Department of Energy, (281 SCRA 330).

No Need for Exhaustion of Administrative Remedies

110. The filing for a motion for reconsideration or exhaustion of administrative remedies in the instant cases would have been an exercise in futility because the very alter egos of President Duterte, if not the President himself, would rule on the motion for reconsideration.

111. Moreover, the requirement of filing first a motion for reconsideration to exhaust administrative remedies is not mandatory and there are exceptions. In Acance vs. Court of Appeals (G.R. No. 159699, March 16, 2005), the following exceptions, among others, are recognized:

(a) When there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner;

(b) Where, under the circumstances, a motion for reconsideration would be useless;

(c) Where the petitioner was deprived due process and there is extreme urgency for relief; and

(d) Where the issue raised is one purely of law or public interest is involved. X. FERDINAND EDRALIN MARCOS DOES NOT DESERVE THE HONOR OF BEING INTERRED IN THE LIBINGAN NG MGA BAYANI EVEN AS A FORMER PRESIDENT AND SOLDIER PER SE.

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112. President Duterte, echoing the majority decision, has

challenged the protesters against the Marcos burial in the Libingan ng mga Bayani to answer in the affirmative two questions: (1) Whether Marcos was a former president and (2) Whether Marcos was a former soldier.

113. Of course he was a former President and soldier. But

having been a former President and soldier per se does not entitle him of the honor to be buried in the Cemetery of Heroes. At the very least, he should have been a good President and a noble soldier to deserve such honor. On both scores, he miserably fails.

114. He was a disgraced president who was deposed by the

sovereign people because he was a dictator, plunderer and transgressor of human rights. He destroyed the institutions of a democratic society even as he pillaged the economy.

115. He was a soldier who fabricated his wartime exploits and

faked his war medals. Even the United States military authorities had consistently found that his alleged “Maharlika” guerilla unit was inexistent. The legal maxim falsus in unos, falsus in omnibus applies to Marcos to a tee. The Libingan ng mga Bayani does not deserve his “mortal remains” even as a former president and soldier.

PRAYER ACCORDINGLY, it is respectfully prayed that the Honorable

Supreme Court: 1. Sets aside and reverses its Decision dated 08 November

2016 and enters a new Decision granting the petitions; 2. Orders the exhumation of whatever was interred as

Marcos “mortal remains” in the Libingan ng mga Bayani on 18 November 2016 since the burial was premature, precipitate, void and irregular considering that the Decision dated 08 November 2016, including its ancillary directive lifting the Status Quo Ante Order, was not final and executory;

3. Orders the conduct of a forensic examination on whatever is exhumed to determine what actually was buried in the Libingan ng mga Bayani on 18 November 2016; and

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4. Issues a Writ of Prohibition enjoining the public

respondents from implementing the order of President Rodrigo Duterte to bury the “mortal remains” of the late President Ferdinand E. Marcos in the Libingan ng mga Bayani;

Petitioners pray for other just and equitable reliefs. Quezon City, for Manila 28 November 2016

LAGMAN* LAGMAN & MONES LAW FIRM Counsel for the Petitioners 2/F Tempus Place Condominium Makatarungan cor. Matalino Sts., Brgy. Central, Diliman, Quezon City Telefax: 433-5354 lagmanlaw@gmail.com

EXPLANATION

The foregoing Motion for Reconsideration is filed personally with the Honorable Supreme Court and copies thereof served on the other parties, through counsel, by registered mail because of time and personnel constraints. Earnest efforts will be subsequently made to effect personal service.

EDCEL GRECO A. B. LAGMAN

----------------------- *Rep. Edcel C. Lagman is on leave for being a Member of the House of Representatives.

EDCEL GRECO A. B. LAGMAN Roll of Attorney’s No. 45738 24 May 2001 PTR No. 3309045/Quezon City/16 August 2016 IBP Lifetime No. 012364/16 January 2014/Albay Chapter MCLE Compliance No. V No. 000288

Mobile No. 09163324958

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Copy furnished by registered mail:

SOLICITOR GENERAL JOSE C. CALIDA Counsel for the Public Respondents OSG Building, 134 Amorsolo St., Legaspi Village, Makati City

Manila Post Office, Ermita Registry Receipt No. ____ 28 November 2016

ATTY. HYACINTH E. RAFAEL-ANTONIO Counsel for the Heirs of Ferdinand E. Marcos Suite A, 18th Floor, Tower 6798 6789 Ayala Avenue, Makati City

Manila Post Office, Ermita Registry Receipt No. ____ 28 November 2016

ATTYS. EDRE U. OLALIA, JULIAN F. OLIVA, JR., EPHRAIM B. CORTEZ, MINERVA F. LOPEZ, MARIA AGATHA A. MIJARES, JOSALEE S. DENILA, ODINA E. BATNAG AND FRANK LLOYD B. TIONGSON Counsel for Petitioners Saturnino Ocampo, et al. National Union of People’s Lawyers (NUPL) 3/F Erythrina Bldg., No. 1 Matatag corner Maaralin Sts., Central District, Quezon City

Manila Post Office, Ermita Registry Receipt No. ____ 28 November 2016

ATTYS. IBBARA M. GUTIERREZ III, MARIA CONCEPCION B. MENDOZA-BALDUEZA, DARWIN P. ANGELES Counsel for Petitioners Loretta Ann Rosales, et al. 9/F Filgarcia Bldg., Kalayaan Avenue corner Mayaman St., Quezon City

Manila Post Office, Ermita Registry Receipt No. ____ 28 November 2016

ATTY. REODY ANTHONY M. BALISI Counsel for Petitioners Heherson Alvarez, et al. 4/F S and L Building, de la Rosa corner Esteban Sts., Legaspi Village, Makati City

Manila Post Office, Ermita Registry Receipt No. ____ 28 November 2016

ATTY. ALGAMAR A. LATIPH Malayang and Latiph Law Office Counsel for Petitioners in G.R. No. 226120 G/F ICC Bldg., NIA Compound, EDSA Diliman, Quezon City

Manila Post Office, Ermita Registry Receipt No. ____ 28 November 2016