Is Marcos’ Libingan ng mga Bayani burial legal?

MOMENTS BEFORE THE FALL. President Ferdinand Marcos speaks from the Malacañang balcony shortly before his ouster, ending a 21-year rule, including 13 years of martial law. C. FERNANDEZ/CONTRIBUTOR

THIS IS not an essay telling you whether the late President Ferdinand Marcos Sr. should or should not be buried in the Libingan ng mga Bayani. Rather, it asks why you think lawyers should choose for you.

It is an understatement that this is a divisive, emotional issue. But why do many react by arguing it is illegal? Various groups have even floated plans to block it with a court order.

Presidential Legal Counsel Salvador Panelo rebutted: “It does not distinguish whether a president is good, bad, handsome or ugly. If you’re a president, you’re entitled to be buried there.” It is difficult to disagree.

It is too easy for us to be fixated on legalese even if it is beside the point. Yes, Armed Forces Regulation 161-375—not a law—issued in 2000 tells us who may be buried in the Libingan. But this is a broad enumeration that includes former presidents, government dignitaries, former AFP chiefs of staff and generals, World War II veterans, and other AFP personnel.

It is pointless to argue this regulation since the President may change it anytime. The regulation does not even say how to choose among the thousands it qualifies for burial in the Libingan.

Some argue that in 1992, President Fidel Ramos and the Marcos family already negotiated an agreement on Marcos’ burial in Ilocos with certain conditions. But even if this was a binding legal agreement, parties may change their agreements anytime.

Some argue that the law says more. For example, AFP Regulation 161-375 disqualifies those dishonorably discharged from service or convicted by final judgment of an offense involving moral turpitude. Although Marcos was not, some argue that laws such as Republic Act No. 10368 on reparations for martial law victims establish this analogously. Others argue the burial would violate the spirit of RA 10368 and laws on recovering ill-gotten wealth.

This supposedly deeper analysis creates many problems. The most immediate is that laws simply need to mean what they say. Yes, we have flowery, philosophical discussions about human rights and social justice. Most days, however, one simply needs to know when one has committed a crime, has to pay a tax or may cross the street.

It is tempting to stretch law and argue that we are bound by words in between the lines, uncovered in a stroke of genius that allows law to intervene and save one’s cause complete with cheesy action music.

If society does this each time it has a disagreement, however, then no one would be able to read a law. It would become useless, devoid of integrity and left to be reinterpreted each time like chicken entrails.

Worse, law could be dragooned into deciding any cause after a game of finding hidden messages. It could short-circuit democratic debate and tell dissenters that they have no choice but to follow what the law supposedly says.

If law can say today that it is illegal to bury Marcos in the Libingan, even without explicit language, then what might the hidden messages say tomorrow? Could some cryptic standard say the Reproductive Health Act is unconstitutional? Could some obscure phrase invalidate our defense agreements with the United States?

The ultimate problem is that law hijacked this way removes not only the debate, but all accountability for the debate. After an unwise choice, people are free to shrug their shoulders and disclaim responsibility because law made them do it. Law would become a society’s subconscious defense mechanism.

Illegal, immoral and unwise represent three very different planes. Again, this is not an essay telling you whether Marcos should or should not be buried in the Libingan. But it asks why it is so tempting for so many of us to categorize this as a legal issue instead of a political decision a majority of Filipinos must support.

Are we concerned that our mechanisms for measuring majority will are flawed? That congressmen and senators do not really speak on one’s behalf? That we need a scientific opinion poll or a formal referendum? Should we all just rally at the Libingan and see who attracts the larger—not the noisier—crowd?

One must be wary of telling oneself that a majority of Filipinos cannot possibly be right. This makes law an enticing tool to sidestep the majority and save them from themselves. What is popular, one believes, is not always what is right (including the definition of right).

After British voters narrowly, surprisingly voted to leave the European Union, their government was criticized for conducting a vote on such a critical issue with no safeguards, such as requiring a

75-percent supermajority or making provision for a second confirming vote. Interviews of voters expressing regret and confusion were aired, and some declared that they would vote differently if there were another vote. Reports of increased Google searches for “What is the European Union?” (in percentage, not absolute, terms) went viral.

Millions immediately signed a petition calling for a second vote. Nevertheless, British leaders made it clear that there would be no revote. More fundamental than any issue of the day, a democracy must be accountable for its choices, or it is not a democracy.

Again, this is not an essay telling you whether Marcos should or should not be buried in the Libingan. But it asks why you might think that it falls to lawyers to tell you who should.

Why might you be so afraid of the choice that you might even be relieved to think that some forgotten piece of paper has made it for you? Why might you be so afraid of finding out how your countrymen would choose or trying to ask them to change their minds?

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