It was reported last Sunday by another daily (not Manila Standard) that at least eight Supreme Court justices will vote to dismiss the petitions filed by Martial Law victims against President Duterte’s decision and order to bury President Ferdinand E. Marcos at the Libingan ng mga Bayani. Obviously, the reporter has inside information. But if I were the Marcoses, I would not celebrate yet. I never count the votes in the Supreme Court until the votes are actually cast. I am not even sure if that will happen today as the justices could always decide to postpone the decision again.
The Chief Justice and her fellow justices are all independent minded. They are good lawyers for sure but their diverse moral, political and personal views make it difficult to predict how each will vote. What we know is that the petitioners must garner a majority vote tomorrow—at least eight justices. A majority of justices for the burial or a tie will mean the Duterte decision will stand and the burial will follow shortly.
For sure, I will respect the Supreme Court decision. The fact that it will be a close vote (even a 9-5 or 9-6 vote would be a cliffhanger because that meant you only needed two votes swinging to the other side for a different result) consoles and assures me that the issues were well-deliberated and that the justices listened to all arguments.
If the President’s decision for burial is allowed to stand, it will be for a technicality—a classic application of the political question doctrine. This doctrine says that there is some decisions left for the political branches of government—usually the president and/or Congress—to decide. Congress here has passed a law on who should be buried in Libingan. The President has decided that Marcos deserves such burial under that law. In declining to overturn that, the Supreme Court is saying that it is the President who has the competence and authority to make this decision.
The political question doctrine is of course not absolute. The 1987 Constitution is very clear that if there is grave abuse of discretion on the part of the president or Congress, which amounts to excess or lack of jurisdiction, the Supreme Court may step in to reverse a presidential and/or legislative decision.
This is the core of the petitioners’ argument—that in fact such abuse of discretion exists in the Duterte decision to have Marcos buried in the cemetery of our national heroes. The preface of the Memorandum, filed in the Supreme Court, by counsel Barry Gutierrez and others on behalf of some of the petitioners against the burial argues this very well:
“The Libingan ng mga Bayani is no ordinary cemetery. By its very name and pursuant to the acts and laws that establish it, the Libingan is a national shrine established to honor those whom the nation holds in esteem and reverence. Interment in its ‘sacred and hallowed’ premises bestows a singular honor because it is, undeniably, a recognition of the deceased’s positive and exceptional contribution to the country. Because it was originally intended as a memorial to the nation’s war dead —those ‘gallant men who brought honor to the country and died for the sake of freedom and independence’—burial therein has potent symbolic power that burnishes with the patina of heroism the reputations and legacies of the dead who would rest there.
Thus, contrary to what the respondents would have this Court believe, the burial of Marcos at the Libingan is not a bland and neutral act bereft of any symbolic, historical or legal significance. It is not a mere returning to the soil. On the contrary, it is an insidious attempt to revise the historical foundation of our Constitution and discredit the fundamental policies lying at its core—that Marcos was a dictator guilty of horrendous abuses, whose like must never again be allowed to hold power over Filipinos.
Burying Marcos in the heroes’ cemetery critically weakens the recognition of his crimes that is institutionalized in our Constitution, laws, and jurisprudence. It diminishes and obfuscates the historical premises on which were purposely anchored significant aspects of our constitutional order. It ignores the laws that recognize his crimes and provide for mechanisms to mitigate the suffering they have caused. It holds in contempt a massive body of jurisprudential law that, over three decades, has powerfully articulated the profound villainy of Marcos and his regime.”
Legality aside, the moral arguments against the Marcos burial in Libingan stands out and will hopefully be taken into account as the justices cast their votes. My colleagues from Jesuit institutions—Institute of Social Order, John J. Carroll Institute on Church and Social Issues, and Simbahang Lingkod ng Bayan—have articulated this well:
“Burying the dictator in the Libingan ng mga Bayani buries human dignity by legitimizing the massive violations of human and civil rights, especially of the right to life, that took place under his regime.
Burying the dictator in the Libingan ng mga Bayani buries truth by perpetuating the myth of Marcos’ achievements as a leader, distorting the valuable lessons of history that we pass on to our young, and confusing them about what constitutes heroism.
Burying the dictator in the Libingan ng mga Bayani buries justice by justifying the shameless corruption of the dictator, his family, and the oligarchy of cronies he created. It violates the moral values we cherish as a nation by rewarding wrong and making it seem right.
Burying the dictator in the Libingan ng mga Bayani buries solidarity by denying the pain and anguish of the many victims of human rights violations and their families, the misery of the poor who suffered most under Marcos’ development policies, and the sacrifices of those who fought to restore the country’s fallen democratic institutions.
Burying the dictator in the Libingan ng mga Bayani buries peace by erasing the memory of the violence that his regime inflicted on our nation.
Burying the dictator in the Libingan ng mga Bayani buries genuine empowerment by legitimizing the concentration of power in a single leader and the suppression of democratic rights and participation under his regime, and by negating the triumph of the empowered popular movement that unseated him.
Burying the dictator in the Libingan ng mga Bayani will not heal our wounded country.”
Whatever the decision of the Court, whether that happens today or is postponed again, this I am sure of: history cannot be buried. We may have buried the bodies of those killed by the Marcos dictatorship. Some of the country’s treasure looted by that rapacious regime might be buried somewhere, to be recovered for use on future elections. But the people will never forget. Ironically, if the dictator is buried in Libingan, that’s the assurance that souls will not rest in peace and the country will continue to be divided.
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