Once more, we knew the result first, because the Court’s spokesman announced the disposition, but not the reasons—because the ponencia and the dissents (as well as the concurring opinions) were only later to be released. I have my reservations about what was becoming a common practice, because a disposition is not self-justifying, and the malicious entertain the suspicion that the opinions are subsequently written (or rewritten) in response to the applause or the outrage that meets the announcement of the disposition.
I have been twice interviewed since the time Attorney Theodore Te faced the press, the latest, in an amiable exchange with the inimitable Alvin Elchico on the issue of the Supreme Court’s decision on the Marcos Burial.
Here is my position:
According to Baker v. Carr, when a court does not have the judicial tools by which to resolve an issue, the case is NOT justiciable. (You can call it “political”—an unfortunate appellation—or by some other term.)
You cannot ask courts to adjudge a beauty contest, or the winning rooster in a cockfight, or the valedictorian in a school. There are no judicial tools to resolve such issues. Similarly when you argue: “Marcos should not be buried at the Libingan because he is not a bayani.” The implied issue of fact is: Was he a bayani or not? Now, what judicial tools do you use to answer that question?
Even the position that he was “dishonorably discharged” from office by the Edsa revolution is one reading of events, but is by no means a settled interpretation. Did he leave of his own accord? Did he leave because he wanted to prevent mayhem and bloodshed? Did he leave with his tail between his legs? These questions are not for a court to answer, but for historians according to a method of which jurists are not necessarily experts.
It follows that in dismissing the petitions, the Court was not enshrining FM in the pantheon of heroes. It was merely saying: “There is no legal obstacle to his burial there.” Besides, bayani is not a univocal term. Not too long ago, I wrote precisely on the question of heroes: Was Bonifacio a hero? Was Aguinaldo? How about Laurel? One is drawn not only into a nasty debate on history. It is the more difficult hermeneutic inquiry into “hero” and what it takes to be one, and whether one act of courage makes one a hero, or whether one has to be consistently heroic throughout one’s life. Then, there is the nettlesome problem of whether an unpopular decision—though borne out of honest conviction—disqualifies one from being a hero.
If we believe in the rule of law—as we should— then since the high court has dismissed the petitions by a convincing margin (other cases were decided on very close calls, not this!), let us abide by the Court’s decision. But a visiting lecturer of the Philippine Judicial Academy, an expert on American constitutional law, had something very salutary to suggest: A Supreme Court compromises its own credibility when it wades into political waters and immerses itself in a partisan debate. This was a thoroughly partisan debate, really, and I would have preferred the Court to dismiss the petitions outright and to hold, as I have suggested, that what had been brought for its resolution was a non-jusiticable question.
Those who consider themselves victims of Martial Law have not been deprived of any of their remedies under the law, unless their claims have prescribed. A claim for damages may still be brought under the provisions of the Civil Code against the Marcos Estate. And the decision by no means forecloses further debate among historians, political scientists and theorists, lawyers and jurists. It merely says that the Supreme Court will not shut the cemetery gates to the funeral.
rannie_aquino@outlook.com
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph