Cowardly and shameful

A year ago this week the Supreme Court promulgated its ruling in Ocampo vs Enriquez: the Marcos burial cases. A year on, the country continues to suffer the consequences of that cowardly and shameful decision.

The most visible consequence is that the Marcos family—responsible for wholesale plunder and the ruin of the economy, the killing of thousands of dissenters and the torture of tens of thousands more, the systematic corruption of the political system and the military—is acting as if it has been fully rehabilitated. A recent party had all the hallmarks of Imeldific extravaganza. The 100th birth anniversary of Ferdinand Marcos was observed right at the Libingan ng mga Bayani, with the
family sending out invitations to high government officials and the diplomatic corps. And heir apparent Ferdinand Marcos Jr. and his subalterns are now acting as if they expect the Supreme Court, sitting as the Presidential Electoral Tribunal, to favor his electoral protest against Vice President Leni Robredo.

The more insidious consequence, because less visible but potentially more harmful, is the damage to the reputation of the Court itself. To the observant public, the decision to allow the burial of the remains of the dictator in a public memorial park which the majority of nine justices themselves called a national shrine did not—does not—compute. The eruption of protests in different cities across the country in November 2016, many of them led by the millennial generation, was a clear signal; many people learned to explain the decision’s manifest unfairness as a mere game of numbers between two kinds of justices: the practical-minded versus the idealistic.

The most important consequence, however, is the ruling’s impact, not only on the Supreme Court’s previous jurisprudence and its understanding of the role it plays under the 1987 Constitution, but also and especially on the exercise of power by the President himself.

Essentially, the Court in Ocampo vs Enriquez declined to use the new great power the Constitution assigned to it after the ouster of Marcos, and decreed that the issue of President Duterte’s campaign promise to bury Marcos in the Libingan ng mga Bayani was a political question
and out of its ambit. But the new power to determine “grave abuse of discretion amounting to lack or excess of jurisdiction” was granted by the Constitution precisely as a response to Marcos’ abuses of presidential power. The new provision drastically limits the scope of the “political question” defense.

Out of sheer cowardice, the nine-person majority ruled that assailing President Duterte’s determination to implement his campaign promise was a political question beyond the reach of the Court. This cannot be correct. What if the campaign pledge in question was a promise to cede Philippine maritime claims in the West Philippine Sea to China, as a way to buy peace in the region? This amounts to surrendering both Philippine sovereignty and territory; will the Court watch idly as the new president proceeds to implement an obviously unconstitutional promise?

So the mere fact that an election grants a new president the mandate to make good on his campaign promises does not place such promises beyond the reach of the Supreme Court. Each one may be challenged precisely on constitutional grounds. In Ocampo vs Enriquez, the Court severely limited the meaning of the popular will that drove the Marcoses out of Malacañang in February 1986, and a year later overwhelmingly ratified the new Constitution; in contrast, it grants President Duterte’s election, with only 38 percent of the vote, with the widest possible latitude. This, again, cannot be correct.

Unfortunately, the undue deference that an intimidated Court showed President Duterte in the Marcos burial cases proved to be an omen. The same undue deference was the motive force behind the decision validating the President’s imposition of martial law in the entirety of Mindanao. We expect the Supreme Court to be the first defender and last bastion of the Constitution. Its decision in Ocampo vs Enriquez showed us a Court that failed its duty and betrayed the public’s highest interest.