Low ball in the high court

Will the justices of the Supreme Court be “liberal or literal”? Former chief justice Artemio Panganiban posed the question on the eve of the high court’s decision, already twice postponed, that the nation had breathlessly awaited. The mountain mightily labored, and produced a mouse.

Fate had given the justices the chance to write a judgment that might have resounded as a ringing affirmation of that moment in history when the world marveled at what the Filipinos had done—defy a dictator and overthrow, with a minimum of bloodshed, a regime built on blood. Invited to reap the recognition of posterity, 10 justices flinched and fled.

Justice Bienvenido Reyes recused himself from the case. He had served in a company established by Benigno Aquino III, who had also named him to the Supreme Court. He was also the fraternity brother who administered President Duterte’s oath of office. Links to both parties might have qualified him as ideal for the case, and recusal cause for unhappiness on both sides.

Nine justices carried the decision: Diosdado Peralta, Presbitero Velasco Jr., Teresita Leonardo-de Castro, Arturo Brion, Lucas Bersamin, Mariano del Castillo, Jose Perez, Jose Mendoza, and Estela Perlas-Bernabe. The initial brief on the decision evoked a gasp of incredulity, so breathtaking was its base, pedestrian character. The highest arbiter of the law set for a deposed president the lowest bar for posthumous honors.

They declared: that Mr. Duterte had complete power to decide how public lands should be used (the Libingan ng mga Bayani as pet cemetery?); that no law barred a Libingan burial for Ferdinand Marcos, who deserved it because of the offices he had occupied, regardless of how effectively and ethically he discharged their responsibilities; that the military rebellion against him did not constitute “dishonorable discharge” because he was not then in active service.

The cases against Marcos, decided with finality here and abroad, were irrelevant, the justices said, because these were “merely civil in nature [and] do not establish moral turpitude.” Consider the crimes judged “contrary to community standards of justice, honesty, or good morals” that moral turpitude encompassed. How could the plunder, torture and murder committed during martial law escape its ambit?

Rejection of Marcos’ burial in the Libingan could have reinforced the struggle for justice by the victims of martial law, the government’s efforts to recover plundered wealth, the Philippines’ sense of its history and identity. But, binding itself with “judicial restraint,” the Supreme Court dismissed the issue as a political matter beyond its purview. It thus sanctioned the President’s perfunctory treatment of the Marcos burial as a triviality that could be bartered for political favors.

Blind to the symbolic impact of Mr. Duterte’s decision, the justices issued a verdict seemingly based on a finger-in-the-air reading of the political wind. They interpreted the votes for Bongbong Marcos as proof that Filipinos had forgiven his father, and Mr. Duterte’s election as support for his Libingan decision.

People had hoped that the justices, in their collective wisdom, would see as simplistic or duplicitous the claim that a Libingan burial would bridge the sharp divide among Filipinos, bury the issue of martial law, and allow the nation to move forward. Protests against the decision, spontaneously erupting across the nation, disproved this view.

Evaluating Marcos “in his totality as a person,” the justices concluded that he deserved Libingan interment because “he was not pure evil … just a human who erred like us.” By this standard, who could be excluded from the Libingan? Even the most depraved serial killer must have sometimes shown kindness to his mother or his dog.

Facing a dangerous choice, the justices, perhaps, set a low-ball norm that might equally serve as the measure by which their decision would be judged. They also were not pure evil, just human beings, vulnerable to human frailties, fears and temptations.

Edilberto C. de Jesus ([email protected]) is professor emeritus at the Asian Institute of Management. Prof. Rofel Brion’s Tagalog translation of this column and others earlier published, together with other commentaries, are in https://secondthoughts.ph.