The Supreme Court has remained undecided on the issue of whether or not ex-President Ferdinand Marcos may be buried at the Libingan ng mga Bayani. News reports disclose that the justices are deeply divided on the issue.
President Rodrigo Duterte made the overture two months ago by permitting the burial of the late strongman at the Libingan. Duterte wanted the nation to move on from its divisive discussions about martial law. For Duterte, the burial will provide closure to a controversial chapter in Philippine history that is largely unknown to the present generation of Filipinos. Duterte also believes that the closure itself will push the country out of the wilderness of political bickering and finger-pointing and back to the path towards progress and development.
Although the Marcos burial was planned for August 2016, activities in that direction will have to wait. Seven petitions opposing the intended burial at the Libingan were filed in the Supreme Court by parties opposed to the idea of President Marcos resting in a cemetery reserved for heroes.
Only a few of the petitioners were anti-Marcos partisans during their time. One petition was filed by a group of college students whose awareness of what actually happened during the martial law regime is hearsay, second-hand, or based solely on what historians aligned with the family of ex-President Benigno Aquino III have said.
Senator Leila de Lima is also a petitioner. Whether or not De Lima was at the forefront of the anti-Marcos campaigns of the 1970s and 1980s is debatable because she does not seem to be among those who were openly fighting President Marcos. Critics say that De Lima filed the petition in her capacity as a loyal follower of the previous president and his family.
Since a temporary restraining order against the Marcos burial was issued by the Supreme Court, everyone interested in the outcome of this case will simply have to wait. Considering, in turn, that most of the justices have more or less made up their minds on the matter, it will not hurt to reiterate an earlier discourse on this issue.
First, the petitions pending in the Supreme Court allege grave abuse of discretion on the part of President Duterte for his decision to push through with the Marcos burial. Jurisprudence, in turn, defines grave abuse of discretion as arbitrariness, capriciousness, and whim.
Second, in cases where the exercise of executive power is allegedly tainted with grave abuse of discretion, the prevailing jurisprudence in Constitutional Law posits that the question the Supreme Court must ask is not whether the president acted correctly, but whether the president acted arbitrarily. Thus, the issue before the Supreme Court is not whether President Marcos deserves to be buried in the Libingan, but whether President Duterte acted with grave abuse of discretion in allowing the Marcos burial to proceed.
Third, the Supreme Court is composed of justices who are unelected public officials. Therefore, if it is established that the president did not act arbitrarily, then the Supreme Court must give the president the benefit of the doubt and refrain from getting in the way of executive action and discretion. To hold otherwise is to allow an unelected branch of the government to substitute its own judgment for that rendered by an elected branch of the government, without any compelling reasons to warrant the same. That will be antagonistic to the essence of a democratic and republican government operating under the rule of law.
Fourth, the Constitution explicitly provides that sovereignty resides in the people, and all government authority emanates from them. During the 2016 presidential campaign, then candidate Rodrigo Duterte promised the voters that if he is elected president, he will have the Marcos remains buried at the Libingan. Duterte won convincingly and overwhelmingly, and by a majority unprecedented in Philippine election history. That mandate requires Duterte to keep his end of the bargain by, among others, allowing the Marcos burial at the Libingan.
Fifth, complying with the mandate of the Filipino people who elected him, Duterte decided to allow, once and for all, the Marcos burial at the Libingan. Complying with a directive from the people who elected him can hardly be considered as an arbitrary act on the part of President Duterte. In fact, it is anything except being arbitrary.
Finally, the Libingan ng mga Bayani is a military cemetery. As such, the final word as to who gets to be buried there, and who does not, belongs not to the judiciary but to the President as the commander-in-chief of the Armed Forces of the Philippines.
Therefore, unless the petitioners are able to show very good reasons to warrant a judicial incursion into matters which belong to the exclusive realm of the military, and the prevailing jurisprudence frowns against such judicial incursions, the Supreme Court has no choice but to accord due respect to the decision of President Duterte to bury ex-President Marcos at the Libingan. To view the situation otherwise is to countenance a judicial usurpation of the powers which the commander-in-chief clause of the Constitution exclusively vests in the president.
The final decision of the Supreme Court in the Marcos burial case will have tremendous consequences on the separation of powers principle that underlies the existing constitutional government of the Philippines. While the power of the Supreme Court to say what the law means is conceded, Congress has the power to unseat justices of the Supreme Court for culpable violation of the Constitution or for betrayal of the public trust. The exercise of that power was instigated by a sitting president back in 2011, and demonstrated to the people in 2012 by the televised ouster of Chief Justice Renato Corona.
In the event that the Supreme Court dismisses the petitions, that ruling should not be interpreted to mean that the Supreme Court sided with the executive department. It means the Supreme Court simply upheld what the Constitution mandates—nothing more, nothing less.
