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Sisyphus’ Lament

Why the anti-Marcos burial case failed

/ 12:08 AM December 12, 2016

Singapore—No one rebutted Presidential Communications Secretary Martin Andanar’s actual point: Those objecting to a Supreme Court decision are “undermining institutions” and are “temperamental brats refusing to concede to the outcome of regular processes.” Someone criticizing a court must give a clear reason, not scream at the ref.

Ralliers cursed the nine justices behind the Supreme Court decision on deposed president Ferdinand Marcos’ state burial. But what did they actually say?

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First, the Supreme Court ruled that President Duterte had the power to order the burial. The Supreme Court did not itself order the burial.

Mixing this up is disastrous.

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The Supreme Court accepted the “political question” argument. It found no explicit legal rule to stop the President.

Petitioners now posit that Armed Forces Regulation 161-1375, on who may be buried in the Libingan ng mga Bayani, was never properly registered and thus void.

But this is a brilliant pro-Marcos argument!

The petitioners, not the President, need to show a rule. This undermines not the majority decision, but the powerful 11-page dissent of Senior Associate Justice Antonio Carpio. He argued that being ousted by the people is the ultimate dishonorable discharge—a disqualification from the regulation.

Second, not all nine justices joined Justice Diosdado Peralta’s majority opinion.

Inquirer columnists Randy David and John Nery rightly criticized its many questionable phrases. David lamented its “revisionist” assertion that the “so-called Edsa Revolution” has no meaning beyond ending Marcos’ presidency. He could only write, “Wow!”

But download the decision and scroll down to the confusing signature page. Only five joined it. Check Justice Jose Mendoza’s simple 11-page opinion. The other four stress the Supreme Court had no authority to rule but avoided Peralta’s loaded comments.

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Would you still curse all nine equally?

Third, the loaded phrases are all side comments, albeit highly symbolic ones. Everything after political question was one long mema (may masabi, or just to have something to say).

Another left field theory cites obscure 1935 convictions for Marcos, another disqualification in the regulation. This is irrelevant and does not attack the political question. And the President, as commander in chief, can change the regulation anytime.

Fourth, how can one praise all the dissents as powerful? Five dissenters wrote four dissents with four approaches. A normal student would identify with one or two; gushing over all four hints he never read them.

Fifth, public opinion focused on the weakest arguments. News reports kept emphasizing the law on a “national pantheon.”

But these glaringly omitted that during the Supreme Court hearings, multiple justices raised that the pantheon is a different cemetery. This argument proved so silly that it was explicitly rejected by the dissent of Justice Benjamin Caguioa.

The misinformation was so bad that even after Caguioa’s dissent, anti-Supreme Court manifestos were still citing the pantheon argument. And in a viral video, retired justice Angelina Sandoval-Gutierrez publicly scolded a Supreme Court candidate who cited the pantheon argument and did not read the actual decision.

Worst of all, why is no one arguing that deeper principles of our Constitution and international law should prohibit the burial even if there is no explicit law?

Former Akbayan representative Barry Gutierrez and Commission on Human Rights Chair Chito Gascon argued this brilliantly during the hearings. But public opinion focused on the stupid pantheon argument.

A viral letter by our Constitution’s 10 living authors powerfully proclaimed: “The overthrow of the Marcos dictatorship is the backdrop to the drafting of the 1987 Constitution.”

This might have helped before the decision!

Some now posit that the Supreme Court will uphold the electoral protest of Ferdinand Marcos Jr. and make him vice president. Given recent gaffes and misinformation, one hopes this conversation features real law. We need to stop reading Supreme Court decisions like greeting cards or profound nonsense on Twitter, and trying to fight historical revisionism with legal revisionism.

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

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TAGS: EDSA, Ferdinand Marcos, Marcos burial, opinion, Supreme Court
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