Not a good day for justice

Yesterday was a bad day for reconciliation with justice. The surprise burial in Libingan ng mga Bayani of former President Ferdinand E. Marcos, even before the motions for reconsideration of the Supreme Court decision could be filed and decided, was a foul and an unwarranted provocation by the Marcos family. It guarantees that there will be no closure soon on this issue. Court decisions are not final and not be executed until after 15 days precisely to give the litigants an opportunity to file motions for reconsideration and for courts to act accordingly. Aside from basic decency and courtesy, the rule of law lost yesterday. It is my hope that the Supreme Court act on this unprecedented contempt done to it and to do so immediately and motu propio.

 In the spirit of protesting yesterday’s travesty, I summarize in this column the dissents of the five justices that went against the majority opinion which allowed the burying of Marcos at the Libingan ng mga Bayani. They are Chief Justice Maria Lourdes Sereno and Associate Justices Alfredo Benjamin Caguioa, Antonio Carpio, Marvic Leonen and Francis Jardeleza.

 In brief, Chief Justice Maria Lourdes Sereno was of the view that the Court has the authority to resolve this controversy under the expanded concept of judicial review in the 1987 Constitution. However, diverting from the ruling by the majority, she was of the opinion that the President acted with grave abuse of discretion and in violation of his duty to faithfully execute the laws when he ordered the burial of Marcos in the LNMB. She argued that statutes and jurisprudence establish a clear policy to condemn the acts of Marcos and what he represents, which effectively prohibits the incumbent President from honoring him through a burial in the LNMB. Further, the AFP does not have the power to determine which persons are qualified for interment in the Libingan. Furthermore, she strongly objected that the burial cannot be justified by mere reference to the President’s residual powers; it is not unfettered, and such power can only be exercised in conformity with the entire Constitution. The Chief Justice warned that to allow Marcos to be buried in the LNMB would violate international human rights law and an independent source of state obligations, and would negate the remedies provided by Republic Act 10368. Clarifying her argument, she says that under international law, the Philippines is obligated to provide effective remedies, including holistic reparations, to human rights victims; the burial would contravene the duty of the Philippines to provide reparations to victims of human rights violations during the Marcos regime; and it would run counter to the duty of the state to combat impunity. Finally, Chief Justice Sereno pointed out that public funds and property cannot be used for the burial as it serves no legitimate public purpose.

 In explaining his vote, Justice Alfredo Caguioa (joined by Justice Jardeleza) was of the same opinion as the Chief Justice that the interment serves no legitimate public purpose, hence, no use of public property or public funds can be made to support it. In fine, he is of the opinion that the interment of former President Marcos constitutes a violation of the physical, historical and cultural integrity of the LNMB as a national shrine, which the State has the obligation to conserve. Caguioa argued that “burying (Marcos) at the LNMB does not make him a national hero, disregards the status of the LNMB as a national shrine, the public policy in treating national shrines, the standards set forth in these laws and executive issuances as well as in the AFP (Armed Forces of the Philippines) LNMB burial regulations.

Taking a different tack from the dissents of his four other colleagues, Justice Antonio Carpio said that Marcos is disqualified from being interred at the LNMB on the ground that he was forcibly removed from the Presidency by what is now referred to as the People Power Revolution. This is the strongest form of dishonorable discharge from office since it is meted out by the direct act of the sovereign people, Carpio said.

Justice Marvic Leonen, on the other hand, stated in a strong dissent that the President’s verbal orders, which were the basis for the issuance of the questioned orders of public respondents are invalid because they violate Republic Act 289, which was never repealed. He continued: “The President’s verbal orders, the Lorenzana Memorandum, and the Enriquez Orders all violate the requirement in Section 1 of Republic Act No. 289 that those buried must have led lives worth of “inspiration and emulation.” Further, Leonen points out that the public respondents gravely abused their discretion when they failed to show that there was an examination of the sufficiency of the facts that would reasonably lead them to believe that the burial of the remains of Ferdinand E. Marcos at the Libingan would be in accordance with Republic Act 289. As such, according to him, the President’s verbal orders were issued with grave abuse of discretion because they violate Republic Act 10368 or the Human Rights Victims Reparation and Recognition Act of 2013; further stating that the President’s verbal orders cannot be justified even under the provisions of the Administrative Code of 1987. By and large, according to the dissent, the actions of public respondents are contrary to the President’s oath of office because they encourage impunity. Leonen reasoned that it is “illegal” for the remains of Marcos to be buried at the LNMB. 

Justice Leonen ends his dissent powerfully and I make his words mine: “Marcos is no hero. He was not even an exemplary public officer. He is not worthy of emulation and inspiration by those who suffer poverty as a result of the opportunity lost during his administration, by those who continue to suffer the trauma of the violations to the human dignity of their persons and of their family.”

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