Examining the SC Decision on the Burial of Marcos at the Libingan ng mga Bayani

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By Maria Makiling

The late President Ferdinand E. Marcos has held this nation hostage for 20 years. Now, 30 years after his ouster through the People Power Revolution, his burial at the Libingan ng mga Bayani (LNMB) still holds this country hostage. Some 27 years after his death, it has haunted this nation and divided its people. This burial issue has become an election issue in every presidential election and a question for every new President on whether or not to allow the late dictator to be buried at the LNMB.

Tatay Digong at the start of the campaign did not hide his plan of burying Marcos in the LNMB not as a president but as a former soldier.  For Tatay Digong, this will finally put to a close to one of the most acrimoniously debated issues in the history of this country.  And eventually, bring healing to the land.

When Tatay Digong finally allowed the burial of Marcos in LNMB, it opened a floodgate of petitions at the Supreme Court to stop the burial of the late dictator.  No less than seven petitions were filed.  Initially a status quo ante order was issued.

On November 8, 2016, the Supreme Court voted 9-5-1 in favor of the denial of the petition to stop the Marcos burial in the LNMB and lifted the status quo ante order.

The nine justices who said that there is nothing in Philippine law that is stopping the Marcos burial were Peralta, Velasco, Leonardo-De Castro, Brion, Bersamin, Del Castillo, Perez, Mendoza, and Perlas-Bernabe. Dissenting from the majority Decision are Sereno, CJ., Carpio, Leonen, Jardeleza and Caguioa. Reyes inhibited from the cases.

The rationale of the majority decision penned by Justice Peralta as quoted in the Supreme Court media briefer provides:

“…(there is ) no clear constitutional or legal basis to hold that there was grave abuse of discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose its authority to check and override an act entrusted to the judgment of another branch. Truly, the President’s discretion is not totally unfettered. ‘Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic formulation, “discretion is not unconfined and vagrant” but “canalized within banks that keep it from overflowing.” At bar, President Duterte, through the public respondents acted within the bounds of law and jurisprudence. Notwithstanding the call of human rights advocates, the Court must uphold what is legal and just. And that is not to deny Marcos his rightful place at the (Libingan ng mga Bayani) LNMB. For even the Framers of our Constitution intend that full respect for human rights is available at any stage of a person’s development, from the time he or she becomes a person to the time he or she leaves this earth.

There are certain things that are better left for history—not this Court—to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime, the country must move on and let this issue rest.”

In the Supreme Court media briefer, it was said that the Court found that the President committed no grave abuse of discretion in ordering that the remains of Marcos be buried in the Libingan ng mga Bayani (LNMB) since it was in accordance with Article VII, section 17 of the 1987 Constitution which empowers the President to ensure the faithful execution of all laws.

Furthermore, the Supreme Court says that the President’s power of control over the Executive Branch is a self-executing provision not requiring legislative implementation. The majority also found that the President is not bound by the 1992 Agreement entered into between former President Fidel V. Ramos and the Marcos family to have the remains interred in Batac, Ilocos Norte.

As the incumbent, President Duterte 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.

The Court also found that under the Administrative Code, the President has the power to reserve for public use and for specific public purposes any of the lands of the public domain and that the reserved land shall remain subject to the specific public purpose indicated until otherwise provided by law or proclamation.

It found that there is no law or executive issuance at present that specifically excludes the land in which the LNMB is located from the use it was originally intended by the past Presidents. The nine justices found that the allotment of a cemetery plot at the LNMB for former President Marcos as a former President and Commander-in-Chief, a legislator, a Secretary of National Defense, a military personnel, a veteran, and a Medal of Valor awardee, whether recognizing his contributions or simply his status as such, satisfies the public use requirement.

According to the majority of nine, the disbursement of public funds to cover the expenses incidental to the burial is granted to compensate him for valuable public services rendered. In this regard, the majority also considered that the President’s determination to have Marcos’s remains interred at LNMB was inspired by his desire for national healing and reconciliation, stating that:

“Presumption of regularity in the performance of official duty prevails over petitioners’ highly disputed factual allegation that, in the guise of exercising a presidential prerogative, the Chief Executive is actually motivated by utang na loob (debt of gratitude)`and bayad utang (payback) to the Marcoses. As the purpose is not self-evident, petitioners have the burden of proof to establish the factual basis of their claim. They failed. Even so, this Court cannot take cognizance of factual issues since We are not a trier of facts.”

The Supreme Court further found that under AFP Regulations G 161-375, the Marcos remains could be interred at LNMB as Marcos possessed the qualifications and none of the disqualifications under the Regulations. The majority pointed further pointed at:

“Petitioners did not dispute that Marcos was a former President and Commander-in-Chief, a legislator, a Secretary of National Defense, a military personnel, a veteran, and a Medal of Valor awardee. For his alleged human rights abuses and corrupt practices, we may disregard Marcos as a President and Commander-in-Chief, but we cannot deny him the right to be acknowledged based on the other positions he held or the awards he received. In this sense, 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.”

The majority of nine also disagreed that former President Marcos had been “dishonorably discharged” as this specific disqualification would pertain only to the military under the Articles of War and more specifically, those in the “active service.” On the contrary, the majority found that former President Marcos was honorably discharged from military service, with the Philippine Veterans Affairs Office (PVAO) expressly recognizing him as a retired veteran under RA 6948. The majority disagreed with the argument (in the separate dissenting opinion of Senior Associate Justice Antonio T. Carpio) that Marcos had been “dishonorably discharged” by his removal as President and Commander-in-Chief by a direct act of the people on February 25, 1986.

Justice Peralta’s majority opinion said that:

“Hence, it cannot be conveniently claimed that Marcos’ ouster from the presidency during the EDSA Revolution is tantamount to his dishonorable separation, reversion or discharge from the military service. The fact that the President is the Commander-in-Chief of the AFP under the 1987 Constitution only enshrines the principle of supremacy of civilian authority over the military. Not being a military person who may be prosecuted before the court martial, the President can hardly be deemed ‘dishonorably separated/reverted/discharged from the service’ as contemplated by AFP Regulations G 161-1375. Dishonorable discharge through a successful revolution is an extra-constitutional and direct sovereign act of the people, which is beyond the ambit of judicial review, let alone a mere administrative regulation.

It is undeniable that former President Marcos was forced out of office by the people through the so-called EDSA Revolution. Said political act of the people should not be automatically given a particular legal meaning other than its obvious political consequence—that of ousting him as president. To do otherwise would lead the Court to the treacherous and perilous path of having to make choices from multifarious inferences or theories arising from the various acts of the people. It is not the function of the Court, for instance, to divine the exact implications or significance of the number of votes obtained in elections, or the message from the number of participants in public assemblies. Worse, the Court may be misled by the noise of a boisterous crowd, drowning the message of the silent (or silenced) majority. If the Court is not to fall into the pitfalls of getting embroiled in political and oftentimes emotional, if not acrimonious, debates, it must remain steadfast in abiding by its recognized guiding starts—clear constitutional and legal rules—not by the uncertain, ambiguous and confusing messages from the actions of the people.”

The Supreme Court also disagreed with the argument that Marcos was disqualified to be buried at the LNMB because he had not been convicted of crimes involving moral turpitude. Relying on the presumption of innocence, the majority of 9 stated that: “(d)espite all these ostensibly persuasive arguments, the fact remains that Marcos was not convicted by final judgment of any offense involving moral turpitude.” The majority of 9 also stated that “(t)he various cases cited by petitioners, which were decided with finality by courts here and abroad, have no bearing in this case since they were merely civil in nature; hence, (they) cannot and do not establish moral turpitude.”

On the one hand, the majority of 9 decided on the basis of the strict construction of the law.  Lawyer friends would always have a Latin term for this: dura lex sed lex (the law may be hard but it is the law).

On the other hand, the five dissenting justices decided on the basis of morality and emotions.  They felt that a dictator, human rights violator, and plunderer has no place in the LMNB. To quote the dissent of Chief Justice Sereno, she says:

“Respondents may deny the implications of their actions today, but the symbolism of the burial will outlive even their most emphatic refutations. Long after the clarifications made by this administration have been forgotten, the gravesite at the LNMB will remain. That is the peculiar power of symbols in the public landscape—they are not only carriers of meaning but are repositories of public memory and ultimately, history.

For the Court to pretend that the present dispute is a simple question of the entitlement of a soldier to a military burial is to take a regrettably myopic view of the controversy. It would be to disregard historical truths and legal principles that persist after death. As important, it would be to degrade the State’s duty to recognize the pain of countless victims of Marcos and Martial Law. Regardless of the promised national unity that the proposed burial will bring, I cannot, in good conscience, support such an expedient and shortsighted view of Philippine history.”

The debate as to the morality of the Marcos burial can last for another three decades. However, the Supreme Court being the final arbiter of disputes in any democracy has given its final word.  It says that nothing in Philippine law stops Tatay Digong from burying Marcos in the LNMB.

The Marcos issue has divided the country long enough and the DDS is no exception.  Some of us love Marcos with passion; many of us think he does not deserve to be buried in LNMB because he is a plunderer and a human rights violator.  And the hate continues.  And this hate has to stop.

At this point, whether or not we agree with Tatay Digong and whether or not we agree with the Decision of the Supreme Court, four things are certain: we are all DDS, we are all Filipinos, we love this country, and we must move forward.

There are many other issues that are far more important and far more pressing matters than burying the late dictator in LNMB that this nation faces.  At this point, we should just agree to disagree but respect the Supreme Court and respect the rule of law.

Perhaps the words of one of the Justices favoring the burial, is an eye opener to all of us.  Justice Mendoza eloquently says:

 “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.

The Court sympathizes with the HRVVs and acknowledges the harrowing ordeals they suffered (at) the hands of government forces during martial law. The stigma left by the martial law regime will never be forgotten by the Filipino people and the burial of President Marcos (at) the LNMB will not re-write history.”

At the end of the day, the final question is whether or not Marcos is a hero.  This question will not be resolved by burying him in LNMB.  A hero is someone we consider one in our hearts and not simply one we accept because he or she is buried in a cemetery where presumably heroes lie.

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