Filed 28 Nov.

2016
at 9:46 AM

Republic of the Philippines

SUPREME COURT
Manila

REP. EDCEL C. LAGMAN, et al.,

PETITIONERS

- versus - G.R. No. 225984

(Petition for Prohibition with
EXECUTIVE SECRETARY Prayer for the Issuance of a
SALVADOR C. MEDIALDEA, et Temporary Restraining Order
al., or Writ of Preliminary
Injunction)
RESPONDENTS.
x----------------------------------------x

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.”
 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
2
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.

3
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.

4
 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

5
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
6
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.

7
 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.

8
 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.
9
 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).
10
 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
11
 any manner that the arrest, detention or
deprivation, of liberty was effected;

xxx xxx xxx

“(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
12
 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
13
 public office and/or using their powers, authority,
influence, connections or relationship."

xxx xxx xxx

“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…”

xxx xxx xxx

“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
14
 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.”

xxx xxx xxx

“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

15
 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.

16
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
17
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
18
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.

19
 (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
20
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).
21
 (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
22
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.
23
 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
24
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,

25
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.

26
 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.

xxx xxx xxx

“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.”
27
 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

28
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
29
 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
30
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
31
 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

32
 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
33
 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
34
 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

35
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
36
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.

37
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.

38
 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.
39
 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

40
 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

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

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.

41
Copy furnished by registered mail:

SOLICITOR GENERAL JOSE C. CALIDA Manila Post Office, Ermita

Counsel for the Public Respondents Registry Receipt No. ____
OSG Building, 134 Amorsolo St., Legaspi Village, 28 November 2016
Makati City

ATTY. HYACINTH E. RAFAEL-ANTONIO Manila Post Office, Ermita

Counsel for the Heirs of Ferdinand E. Marcos Registry Receipt No. ____
Suite A, 18th Floor, Tower 6798 28 November 2016
6789 Ayala Avenue, Makati City

ATTYS. EDRE U. OLALIA, JULIAN F. OLIVA, Manila Post Office, Ermita

JR., EPHRAIM B. CORTEZ, MINERVA F. Registry Receipt No. ____
LOPEZ, MARIA AGATHA A. MIJARES, 28 November 2016
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

ATTYS. IBBARA M. GUTIERREZ III, MARIA Manila Post Office, Ermita

CONCEPCION B. MENDOZA-BALDUEZA, Registry Receipt No. ____
DARWIN P. ANGELES 28 November 2016
Counsel for Petitioners Loretta Ann Rosales, et al.
9/F Filgarcia Bldg., Kalayaan Avenue corner
Mayaman St., Quezon City

ATTY. REODY ANTHONY M. BALISI Manila Post Office, Ermita

Counsel for Petitioners Heherson Alvarez, et al. Registry Receipt No. ____
4/F S and L Building, de la Rosa corner Esteban 28 November 2016
Sts., Legaspi Village, Makati City

ATTY. ALGAMAR A. LATIPH Manila Post Office, Ermita

Malayang and Latiph Law Office Registry Receipt No. ____
Counsel for Petitioners in G.R. No. 226120 28 November 2016
G/F ICC Bldg., NIA Compound, EDSA
Diliman, Quezon City

42