Tomorrow, Sept. 11, 2016, marks the 99th birth anniversary of President Ferdinand Marcos.
Almost to the date, the Supreme Court ruled that the plan of President Rodolfo Duterte to have the remains of the late strongman buried at the Libingan ng mga Bayani may not be carried out—for the month of September, at least. That temporary edict could not have come at a more unsettling time for the Marcos family. Two dates in September are important in the Marcos timeline, namely, September 11, and September 21, the day President Marcos signed Proclamation No. 1081 which placed the entire country under martial law.
It will be recalled that many weeks earlier, several anti-Marcos personalities filed petitions in the Supreme Court for the purpose of stopping the Marcos burial at the Libingan. As expected, stories of human rights abuses allegedly committed during the authoritarian regime were cited by the anti-Marcos petitioners and invoked as grounds for their proposition that Marcos is not a hero and, being so, he cannot be buried at the heroes cemetery.
Several non-lawyers brought along by the anti-Marcos petitioners spoke in the Supreme Court about the crimes allegedly committed against them by the martial law regime. Why those particular witnesses were chosen to testify for the petitioners was not disclosed by the anti-Marcos camp.
For their part, the Marcos family and supporters of the late strongman argued that there is no judicial pronouncement categorically convicting Marcos of the crimes attributed to him by the petitioners.
Marcos’ lawyers also stressed that the late president was a decorated soldier who saw action in Bataan in 1942 when the Japanese invaded the Philippines in the Pacific theatre of World War II. After Bataan fell to the Japanese, Marcos was among the many prisoners of war forced by the enemy to join the infamous Bataan Death March. Inasmuch as Marcos was a war hero, the Marcos camp maintained, Marcos is entitled to be buried at the Libingan.
Be that as it may, the parties are expected to submit to the Supreme Court their respective written summations within the month. In the meantime, the planned burial remains enjoined.
A few observations have been made regarding the developments in this controversy.
It is most unusual that the supposed witnesses brought along by the anti-Marcos petitioners were allowed to testify before the Supreme Court. The Supreme Court itself has repeatedly asserted in numerous pronouncements that it is not a trier of facts, which means that testimonies from witnesses are received by trial courts, and on some occasions by the Court of Appeals, but not by the Supreme Court.
At any rate, under the rules governing court procedure, a witness who testifies in court must be subjected to cross examination by the opposing party, Unless the cross examination is waived by the opposing party, the testimony of a witness who is not subjected to cross examination is considered hearsay and treated as inexistent. The witnesses relied upon by the anti-Marcos petitioners were not subjected to cross examination. What weight the Supreme Court will give to their testimonies without the requisite cross examination is anybody’s guess.
Likewise, the rules provide that a testimony must be reduced to a judicial affidavit, and properly served on the adverse party. It is not clear if that rule was followed in the proceedings.
The anti-Marcos petitioners want the Supreme Court to decide if Marcos is deserving of a hero’s burial. That being said, the question must be asked—Does the Supreme Court have the constitutional power to decide who is deserving to be called a hero in the first place?
Marcos was a military veteran who saw action in World War II, and he received at least one medal for valor in that bloody war. Can alleged abuses during the martial law dispensation erase the fact that Marcos was a World War II veteran? For that matter, can heroism be quantified in the first place? If heroism cannot be quantified, the Supreme Court may have a tough time deciding when one is and is not deserving of a hero’s burial.
From all indications, therefore, the issue about the Marcos burial is a political one, and one attended with military considerations inasmuch as Marcos was a war veteran. Being so, that issue ought to be left to the sound judgment and discretion of the President, as commander-in-chief of the military establishment.
Considering that President Duterte has already decided to allow the burial at the Libingan, perhaps the only ostensible issue for the Supreme Court to resolve is whether or not President Duterte committed a grave abuse of discretion in allowing the burial. Inevitably, therefore, it must be established that President Duterte committed such grave abuse of discretion before the judiciary may step in and disallow the exercise of the exclusive presidential prerogative to decide who gets buried at the heroes cemetery.
Grave abuse of discretion is characterized as a whimsical, capricious and arbitrary exercise of a prerogative. Accordingly, the applicable standard is not whether President Duterte acted correctly, but whether he acted arbitrarily, in allowing the remains of the late strongman to be buried at the Libingan.
When he was campaigning for the presidency earlier this year, President Duterte said that the country must move on from its political past, and that progress cannot be realized if the nation remains politically divided. Towards this end, Duterte told the voters that if he wins in the May 2016 polls, he will allow Marcos to be buried at the Libingan. Duterte won by an overwhelming, unprecedented mandate from the electorate.
By allowing the burial, President Duterte kept his campaign promise to the sovereign Filipino people who elected him. How then can his decision allowing President Marcos to be buried at the Libingan be tainted with grave abuse of discretion? (To be continued)