The unfortunate Justice Peralta

There is none so blind as he who refuses to see. Associate Justice Diosdado Peralta’s ponencia in the Marcos burial cases will go down in history as the cowardly rationalizations of a willfully blind man; he deserves the opprobrium coming his way. He still has six years to serve in the Supreme Court, but his legacy will be forever defined by this badly written, ill-thought-through, deliberately obtuse majority decision.

Peralta’s opinion begins: “In law, as much as in life, there is need to find closure. Issues that have lingered and festered for so long and which unnecessarily divide the people and slow the path to the future have to be interred. To move on is not to forget the past.” This New Age-speak is nonsense, misleadingly so, because closure does not come from any Court ruling but from a ruling that is truly just.

The opinion ends with a similar lame attempt at an overview: “There are certain things that are better left for history—not this Court—to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides.”

That squeaking you hear? That’s the sound of Peralta and the eight justices who joined the majority trying to fit their bottoms on the fence they’re sitting on. The people had already decided: They ousted Marcos, supported the restoration of democratic institutions, overwhelmingly ratified the Constitution. It takes an extra amount of determination to ignore history.

In between the beginning and the end is judicial hackwork. Incredibly, Peralta does not grant any of the points raised by the petitioners in Ocampo v Enriquez. Even the legal standing of Marcos’ own human rights victims to sue is not recognized. And in the rush to confirm judgment, Peralta runs roughshod over the very power granted the Court by the post-Marcos Constitution. Three quick points:

The heart of Peralta’s argument is that President Duterte did not commit a grave abuse of discretion when he issued his order; this reasoning depends on a labored and unconvincing argument that the order to honor a dictator (recognized as such by law and previous judgments) is not in fact contrary to the Constitution, law, or jurisprudence.

His secondary argument is that burial in the Libingan ng mga Bayani is not tantamount to hailing Marcos as a hero. We can disagree, but we can also note that his own reasoning proves that burial there will honor Marcos (emphases mine): “In fact, the privilege of interment at the LNMB has been loosen [sic] up through the years. Since 1986, the list of eligible [sic] includes not only those who rendered active military service or military-related activities but also non-military personnel who were recognized for their significant contributions to the [sic] Philippine society.” Why should the nation Marcos brutalized seek to honor him, in a place that the Court itself recognizes is a “national shrine”?

And while Peralta is at pains to argue the limits of Marcos’ ouster (“It is undeniable that former President Marcos was forced out of office by the people through the so-called EDSA Revolution. Said political act of the people should not be automatically given a particular legal meaning other than its obvious consequence—that of ousting him as president”), he is content to accept the Solicitor General’s argument that a mere election gives Mr. Duterte’s powers wide latitude.

Justice Peralta invokes history, but he does not understand it the way we do: For him, history is not so much the fruit of the ongoing and collective effort of a community of actors, including judges like him who have repeatedly pronounced on the perfidy of Marcos rule, as rather something distant, something inchoate, something he is gladly not a part of.

The judgment of history on the Marcoses is clear and has been clear for a generation. That he, an Ilokano like the late dictator, cannot bring himself to acknowledge it is proof, if more proof were needed, of moral and intellectual cowardice.

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