a.

OCAMPO v ENRIQUEZ (LNMB CASE) CONCURRING OPINIONS

BERSAMIN
1. Discretion of Duterte as Chief Executive (control over AFP which in turn
has control over LNMB), hence beyond review by the Court (political
question)
a. Different facts from Marcos v. Manglapus: imminent impact then
(return of the Marcos could put to danger the nations peace
and security), no longer imminent today
2. Laws cited by petitioners not relevant to LNMB
a. LNMB is not the National Pantheon because Proc.431
mandated that the National Pantheon will be in East Ave., QC
while LNMB (then called the Republic Memorial Cemetery) is in
Fort William McKinley, Rizal
b. Relevance of RA10368 (on reparations for HRVV) not
persuasively shown
c. No Consti provision or existing law prohibits interment of
Marcos in LNMB
3. None of the disqualifications in the AFP Regulations G 161-375 apply to
Marcos
a. People power revolution not the same as dishonorable
discharge must be discharged from military service, not
ousted from presidency
BRION
1. Issued presented by petitioners are outside judicial authority, thus no
actual case or controversy
a. Emotions and beliefs of HRVV should not influence the faithful
discharge of duties of the Court
b. Symbol of Justice: blindfolded lady carrying scales = decisions
based not on who litigants are (and their political, emotional,
financial clout) but on law and evidence
2. On Courts expanded jurisdiction
a. Alternative approach: there must first be prima facie showing of
grave abuse of discretion on the part of the government in
cases involving constitutional violations
b. If violations of statutes only, recourse should be in other
judicial remedies or proceedings, subject only to review of the
SC.
c. Doctrines that conflict with direct recourse to SC for violations
of statutes:
i. Hierarchy of courts
ii. Primary jurisdiction
iii. Exhaustion of administrative remedies
3. Faithful execution clause does not allow the constitutionalization of
issues that, if proven to be true, would amount to violation of statutes

4.

5.

6.

faithfully standard = vague, not-easily determinable; may

amount to the Court placing itself in a higher plane, and can
paralyze executive discretion on how it implements/executes
laws
b. faithfulness should not be the standard to test the legality of
the Presidents acts
c. Faithful execution clause = take-care clause in US Constitution
adopted in our 1935 Constitution in US jurisprudence, the
take-care clause has never been used to question the manner
by which the Presidents executive power is exercised
The burial does not violate international obligations
a. Principles do not create legally binding obligations
b. The burial order does not rewrite jurisprudence and excuse the
ills of the Marcos admin nor amend RA10368
c. Provisions of RA10368, although critical of Marcos regime do
not amount to a prohibition barring the interment of his remains
in a resting place duly reserved by law for soldiers
Divining the spirit of the constitution is acceptable only to clarify
ambiguities in its provisions, and not to create entirely new provisions
a. Constitutional intent does not embody a right and by itself is not
a basis for the enforcement of a right. Neither does it provide a
standard on how the President should act and enforce the laws,
without prior reference to specific provisions or legislations
applying the intent of the Constitution.
i. Art.II Sec.27 and Art.XI Sec.1 (not self-executing)
enshrine values but cannot be claimed as basis, in the
absence of clear and concrete legislation embodying
actionable standards, for the petitioners claims. They
only describe our aspirations for our government but do
not dilute the Presidents political moves.
b. No express constitutional bar to the interment
c. The Court is not a judge of history; it a judge of the
interpretation and application of the terms of the Constitution
d. The Court is not a Court of public opinion but of law. On matters
of policy, it cannot substitute its wisdom over that of political
branches
When Duterte promised Marcos burial during his campaign, people
voted for him despite or because of this plan

MENDOZA
1. Issues involved are truly political questions which are non-justiciable
a. Truly-political questions are still recognized despite expanded
judicial power
i. lies in the answer to the question of whether there are
constitutionally imposed limits on powers or
functions conferred upon political bodies (Francisco v
HRET) a.k.a if with limit on powers, court review ok; if
none, no court review

b.

2.

3.

If grave abuse is not established, the Court will not

substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter
alone to decide (Marcos v Manglapus)
i. Ex. Court cannot question Pres recognition of foreign
govt (even if it appears premature), presidential pardon
(even if beneficiary is undeserving), or amend Consti to
resolve disputes (power reserved to people)
Interment of President Marcos in LNMB is a discretionary act of
President Duterte
a. Any act pursuant to the faithful execution clause (Sec 17 Art VII
1987C) should be deemed a political question because it relies
not on legality but on wisdom/propriety of act of President
b. Discretionary vs Ministerial Act (Spouses Marquez v Spouses
Alindog)
i. Ministerial = duty performed by official in a given state
of facts and prescribed manner w/o need of his own
judgment
ii. Discretionary = duty imposed on an official and gives
him right to decide how or when to perform it
c. Discretionary applies in Pres exercise of judgment as long as
he faithfully executes the law
d. Authority also derived from residual powers (Pres task to
attend to maintenance of peace, order and domestic tranquility),
Presidents reason being for national healing, reconciliation, and
forgiveness. (ugh)
No GAD
a. No violation of any constitutional provision or law, and in fact
complies with it (AFP Regulation G 161-375 as sole legal basis
in determining who are qualified to be buried in LNMB)
b. Constitution neither expressly nor impliedly prohibits Marcos
interment in LNMB
c. Not contrary to RA289 and RA10368
i. National Pantheon referred to in RA289 is different
from LNMB, hence not applicable
ii. RA10368 neither expressly nor impliedly prohibits
Marcos interment in LNMB; burial not incongruous with
honoring HRVVs because it doesnt intend to confer
upon him the title of hero; State can continue provide
recognition and reparation to HRVVs notwithstanding
his burial in LNMB

Lest it be misunderstood, the Court is not passing judgment on whether

President Marcos truly deserves to be buried in the LNMB. It is merely exercising
judicial restraint as the issues at hand are truly political in nature and, therefore,
are best left to the discretion of the President. ()

PEREZ
1. NO GAD. A Libingan Burial for Marcos was a promise made by
President Duterte, which promise was opposed by petitioners, in spite of
which opposition, candidate Duterte was elected President.
a. As judicial admissions in their petition, petitioners state as fact
that the burial of Marcos at LNMB is a matter about which the
Filipino public was consulted as a campaign promise of Duterte
b. Issue was made public and resolved upon Dutertes election as
President juxtaposition of two concepts: people and suffrage.
Sovereign political power in a democratic state remains with
the people. (aka it is the people who will decide and here the
majority of the people decided to vote for Duterte)
c. By word and deed, petitioners have accepted that the issue they
now, losing the vote, present before the Court is a political
issue.
i. This gives the Court right away to dismiss the petition
because clearly the petitioners did not prevail in the
political exercise that was the National Elections 2016
ii. Their prayers are no different from those publicly
debated proceeding to a conclusion unacceptable to
them; just that now their cause has legal clothing (???)
d. Argument regarding this view:
i. Not all of those who voted for Duterte did so because
they favored Marcos burial at LNBM!: that may be
plausible, but what cannot be questions is that Duterte
did not lose because of his burial pronouncement.
2. RA10368 is a complete law. The definition of what their rights are in this
law limits any further inclusions except perhaps through the same
legislative action. The Court cannot allow the collected petitions at bar to
interfere with that wisdom.
a. SolGen during oral argument did not agree that Marcos burial in
LNMB will retraumatize HRVVs. He defended the Presidents
policy of reconciliation and national healing and assumed that
the President, in taking every matter into consideration,
considered the pain and sufferings of HRVs too.
Whether the policy of healing and reconciliation over and above the pain and
suffering of HRV is in grave abuse of executive discretion or not is answered by
the evidently substantial Marcos vote during the fresh and immediately preceding
national elections of 2016. The election result is a showing that, while there may
have once been, there is no longer a national damnation of President Ferdinand
E. Marcos; that the constitutionalization of the sin and its personification is no
longer of national acceptance. A Marcos vote came out of the elections,
substantial enough to be a legitimate consideration in the executive policy
formulation. (!!!!!!!!!!!!!)