Sisyphus’ Lament

Why SC decision on Marcos burial is wrong

/ 12:09 AM November 21, 2016

Singapore—What was lambasted along with the hokage (ninja) burial of former president Ferdinand Marcos in the Libingan ng mga Bayani? A viral video of retired justice Angelina Sandoval-Gutierrez scolding a Supreme Court candidate to read her cases.

The candidate agreed with the Court’s decision on the burial and cited Republic Act No. 289 on the “national pantheon.” Sandoval-Gutierrez angrily explained this was not its basis.


The candidate only read news reports, which proved as accurate as the Mocha Uson Blog’s sources.

The justices’ voting is difficult to follow.


Curiously, Justice Jose Mendoza’s opinion is joined by five (Velasco, Leonardo-de Castro, Del Castillo, Perlas-Bernabe) and mirrored by two (Brion, Perez). Justice Diosdado Peralta’s main opinion is joined by five (Velasco, Leonardo-de Castro, Brion, Bersamin).

Mendoza’s 11-page opinion simply says no explicit rule prohibits the burial. It is a “political question” for the President, not judges.

He stresses that the Supreme Court is not deciding whether Marcos is a hero. It remains etched in victims’ minds that “Marcos was a heartless dictator and rapacious plunderer of our national economy and patrimony.”

Mendoza’s argument is straight from a freshman law book. It invokes, not “legal technicality,” but separation of powers, our democracy’s central foundation. While one is free to criticize it, critics must be careful not to be branded “temperamental brats refusing to concede to the outcome of regular processes.”

Former lawmaker Neri Colmenares publicly trumpeted the pantheon law as a sure win argument. Yet even dissenting justices agreed that the pantheon is a different cemetery. Only Justice Marvic Leonen disagreed, but surely the other 13 justices found the right cemetery.

Colmenares’ word games were not only a logical stretch; they also ended up framing even the dissents in literal interpretation (where the anti-Marcos side is weak) and blocking a common dissenting argument, thus strengthening the political-question argument.

Justice Benjamin Caguioa (joined by Justice Francis Jardeleza) argues that the burial violates the sanctity required by a law on national shrines. Senior Associate Justice Antonio Carpio argues that military regulations disallow it because Marcos’ ouster is the highest dishonorable discharge. Both add international law obligations to human rights victims.


Chief Justice Maria Lourdes Sereno focuses on a “holistic view” that the burial is not “consistent with the spirit” of our post-Marcos Constitution and laws and Supreme Court decisions documenting his abuses.

Justice Jose Perez counters: “The election [shows] there is no longer a national damnation of President Ferdinand E. Marcos; that the ‘constitutionalization’ of the sin and its personification is no longer of national acceptance.” Justice Arturo Brion adds that history is generally not basis for law.

Peralta’s main opinion also centrally cites the political question. But it adds potentially political commentary: The Edsa Revolution “should not be automatically given a particular legal meaning other than its obvious consequence—that of ousting [Marcos],” and he “was not pure evil either. Certainly, just a human who erred like us.”

Both Peralta and Mendoza ask the country to “move on”—a pro-Marcos refrain. Peralta even says the petitioners have no “standing” or right to even sue—a stunning procedural ruling for such a public issue.

However, the side comments do not affect the decision’s doctrine.

Critics might reiterate international obligations and the Constitution’s spirit, which received more attention in the hearings summarized in my past columns. But they cannot simply curse the decision as inherently wrong, especially not its textbook doctrine. It is wiser to use the decision’s own logic in possible counters, such as questioning why access to Marcos’ grave is restricted if it is in a public cemetery.

Idealism cannot be a crutch for ignorance. Critics must attack the decision without undermining the judicial institutions they will need in the future.

React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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TAGS: Commentary, Ferdinand Marcos, Libingan ng mga Bayani, opinion, SC
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