Marcos burial: Will SC give ‘devil’ his due?

BLOCKING FORMER president Ferdinand Marcos’ Libingan ng mga Bayani burial hinges on former Akbayan representative Ibarra Gutierrez and Commission on Human Rights (CHR) Chair Chito Gascon.

Three arguments emerged during the Supreme Court hearings last Aug. 31 and Sept. 7.

First came the emotional appeal. Chief Justice Maria Lourdes Sereno asked petitioners to recount at length how they were raped, electrocuted through their nipples, and had objects inserted into their sexual organs. However, Sereno and other justices reminded petitioners to translate this into law.

The second, legalistic argument flopped. Some petitioners claim the burial will violate Republic Act No. 289, which created a “national pantheon” for former presidents “for the inspiration and emulation of… generations still unborn.”

But justices accepted that the pantheon is a different cemetery that was never built. President Elpidio Quirino reserved a lot in East Avenue, Quezon City, for it in 1953. Justice Presbitero Velasco called RA 289 a dead law.

Solicitor General Jose Calida stressed the burial is a “political question” within President Duterte’s sole discretion. The legalistic argument backfired, instead highlighting that no law explicitly prohibits it.

Calida also stressed that Armed Forces Regulation No. 161-375 allows any president, soldier or Medal of Valor awardee to be buried in the Libingan, like Marcos. Imelda Marcos still receives a Medal of Valor awardee widow’s pension.

Senior Associate Justice Antonio Carpio, the master of strict, textual arguments, argued that this regulation disqualifies one dishonorably separated from service, and the revolt ousting Marcos must be treated as dishonorable separation of the commander in chief by the people themselves.

Calida countered that the service must be military. Carpio raised the regulation covers civilians such as national artists.

Nevertheless, Carpio noted the president may change the regulation anytime, and the legalistic argument fails unless one can argue that the president does not have unlimited discretion.

Gutierrez, representing former CHR chair Etta Rosales’ group, crafted this third, broader argument. Instead of stretching laws, Gutierrez argued that our Constitution is indisputably a rejection of Marcos’ abuses. Although history is not a legal issue, this particular fact was constitutionalized.

Gutierrez thus argued that public land may not be used to bury Marcos. This can have no valid public purpose given the constitutionalized fact.

Gascon, a resource speaker, added that the burial would violate international law principles on reparation. He stressed that reparation, beyond money, must acknowledge violations and stop victims’ reexposure to trauma. The burial undermines both.

Multiple justices echoed this. Calida downplayed that Gascon raised a “soft law” not yet considered international law principles. Sereno emphatically countered that the principles were recognized in the congressional deliberations on the law on reparations for martial law victims.

Justice Francis Jardeleza, the master of progressive theories, completed Carpio’s, Gutierrez’s and Gascon’s arguments. The burial must be “grave abuse of discretion” given how the Constitution and so many laws and Supreme Court decisions strongly condemn Marcos. The Constitution empowers the high court to nullify even a legal act if it is abusive, a power specifically added after the Marcos dictatorship.

Jardeleza said he did not want to debate who a hero is.

Justice Marvic Leonen surprisingly opined that every word in the Constitution must be “self-executing.” He admitted this exceeds current doctrine, where many phrases must be implemented by specific laws. This would favor Gutierrez’s broader argument, but Leonen posited that this allows Marcos’ burial because the Constitution “values the dignity of every human,” even a dictator.

Leonen had fun toying with Calida by asking whether AFR 161-375 violates equal protection, because it qualifies for burial in the Libingan the widow of a president but not the widow of a Medal of Valor awardee.

Calida should have replied that the discrimination doctrine cannot be strictly applied outside contexts like racial and religious persecution. Equal protection challenges why atheists might be disallowed from being buried in the Libingan, not why a general’s plot is larger or why national artists are qualified for burial but Ramon Magsaysay awardees are not.

Misusing equal protection has shocking results, such as the tainted 2010 Biraogo decision that struck down the Truth Commission to investigate corruption in President Gloria Macapagal-Arroyo’s administration, because it would not investigate Emilio Aguinaldo.

Lawyer Jesus Falcis III filed an outlandish 21-page petition, representing four University of the Philippines students. This argued that burying Marcos violates equal protection by discriminating against soldiers who are dishonorably discharged and disqualified from a Libingan burial, even if Marcos committed worse crimes. This is as bizarre as the 2013 argument that pork barrel discriminates against legislators who got less.

Falcis did not get to speak, unlike the other five petitioners’ lawyers.

Law must give even the devil his due and let the devil quote the Scripture. Is it law to block the burial as contrary to our Constitution’s broader principles, or must the lack of an explicit law leave it as a political decision?

If one accepts the broader argument, one must accept it in all other cases—such as nullifying the Reproductive Health Act as antifamily and antilife, or a defense agreement with the United States as undermining sovereignty—and then not accuse justices of making up law.

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