Hero’s burial for a hero-maker

“WE LIVE by symbols.” We make meaning through them—we are homo significans.

The battle for the public meaning of the Libingan ng mga Bayani has now reached Padre Faura, threatening to become the first confrontation between the Duterte administration and the Supreme Court.

The challenge for the various petitioners in these cases is how to couch their moral and political outrage into legal arguments so the Court can avoid making pure value judgments and decide on the basis of legal principles. It is how to translate the national cognitive dissonance created by the administration’s decision to bury and, therefore, consecrate Marcos as a public, official hero into a legal wrong cognizable by courts.

At bottom, the case against Marcos’ burial at the Libingan may be framed into an apparent conflict between rules, on one hand, and standards, on the other. Ordinarily, rights- or benefits-conferring statutes provide an enumeration of who qualifies (rules) and the conditions for their qualifications (standards). Rules are generally objective, whereas standards require some exercise of discretion.

The statutory basis for the creation of the Libingan is found in Republic Act No. 268 which seeks “[t]o perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn…” This proviso simultaneously incorporates a rule and a standard.

The case for the administration rests on a straightforward application of the rule allowing all presidents burial access to the Libingan. While there is no denying that Marcos is a former president, that is only half of the analysis.

The balance of the law requires compliance with the standard: “for the inspiration and emulation of this generation and of generations still unborn.” This standard is legally enforceable. In plain terms, the law never envisioned the burial of a president who is not worth emulating. The Libingan is the Republic’s holy grounds for its secular gods; it is not for those who make martyrs out of them—it is for heroes, not hero-makers.

One might think that the legal standard is vague or purely hortatory. After all, one’s capacity to inspire is subjective and people can have legitimate disagreement about their idols. This may be true, but this is also incontrovertibly not the case when it comes to Marcos.

The assertions that Marcos plundered the nation and violated the most basic rights of his citizens are not mere claims made on Facebook or over dinner conversations. They are, under the law of evidence, legislative facts that courts of law must accept as true, regardless of politics or even one’s preferred version of history. What this means is that given the status of our laws with respect to Marcos, there can be no debate that he plundered the nation and violated human rights on a scale that required remedial action from the state.

First. The laws creating the Presidential Commission on Good Government (PCGG) and the Sandiganbayan set up an administrative and judicial mechanism for recovering moneys stolen by Marcos and his cohorts. The fact that billions of pesos have been recovered here and abroad validates the decades-long effort to recover the Marcos loot. The PCGG is still going after the Marcos billions and the Sandiganbayan is still trying ill-gotten wealth cases. The Supreme Court itself, in various decisions, has recognized the thievery of the Marcos regime, characterizing it as a “well-entrenched plundering regime of twenty years.”

Second. Congress also passed RA 10368 or An Act Providing For Reparation and Recognition of Victims of Human Rights Violations During the Marcos Regime. The state, in recognition of the horrors of martial law, has enacted a policy of using public funds to pay for Marcos’ use of state machinery to inflict violence on Filipinos. We can complain about human rights abuses under any presidency, but it is only with respect to the Marcos regime that the state has owned up to the scale and intensity of abuses during that period by offering reparations.

Thus, regardless of the administration’s views about the meaning of “moving on,” or any citizen’s (including President Duterte’s) views about Marcos, the Court, as a matter of law, must take judicial notice of these laws which incorporate a legislative determination of facts—that Marcos plundered and murdered. To question these legislative facts is to consider the recovery of the Marcoses’ ill-gotten wealth as nothing less than state-sponsored robbery of the Marcos family’s legitimate wealth, and the payment of public funds to martial law victims as mere state-sponsored scheme to divert such funds into private hands.

The point here is that if the question is whether Marcos, as a dead president, is compliant with the standard that he be inspiring and worthy of emulation, then the clear answer is that it has been the consistent policy of the state—through legislation, executive action, and judicial enforcement—that he is not. This makes the decision to bury him at the Libingan an act that can be legally prohibited by the courts.

And lest we forget, our constitutional framework rests on a backdrop of rejection of almost everything Marcos was infamous for. It is no exaggeration to declare that the 1987 Constitution is our country’s most powerful symbol against the evils of his regime.

The day we bury Marcos at the Libingan will be the day he rises as a hero. If that happens, we might as well bury the Constitution with him.

Florin T. Hilbay is a former solicitor general. He teaches at the UP College of Law.