By Buena Rilyne C. Bernal

History at center of legal debate on Marcos burial

Posted on September 08, 2016

HISTORY and how it is viewed became a matter of contention during the second day of oral arguments before the Supreme Court (SC) on the controversial move to provide the late strongman Ferdinand E. Marcos, Sr. an honorary burial.

Associate Justice Marvic F. Leonen highlighted Wednesday what seemed to be the Duterte administration’s selective memory of Mr. Marcos’s track record, in justifying the presidential directive to have the dictator’s remains interred at the Heroes’ Cemetery (Libingan Ng Mga Bayani) with military honors.

“Why is it that government wishes to take only part of Marcos’ life and highlight it and use it as a justification to bury him in the Libingan Ng Mga Bayani?” Mr. Leonen asked state counsel Jose C. Calida.

This line of questioning comes after Solicitor-General Calida cited Mr. Marcos’s supposed qualifications as “a former president, commander in chief, and soldier” for burial at the state cemetery.

Despite contentions by the National Historical Commission of the Philippines (NHCP) that Mr. Marcos faked his wartime record, Mr. Calida said Mr. Marcos’s widow, now Ilocos Norte Representative, Imelda R. Marcos has been receiving from the Philippine Veterans Affairs Office a monthly pension of P5,000 as a surviving spouse of a deceased veteran and another P20,000 from the Armed Forces of the Philippines (AFP) as a surviving spouse of a Medal of Valor awardee.

Mr. Marcos’s 14-year dictatorship was marred by unresolved murders and the torture of thousands of dissidents. Mr. Marcos in 1972 declared martial law, effectively suspending civil liberties on the watch of a then ruthless military and law-enforcement apparatus.

Mr. Calida said the planned honorary burial will not erase or rewrite history and will not confer hero status on the late Mr. Marcos, as “history is within the hearts” of every Filipino.

Lawyer Hyacinth Rafael-Antonio, counsel for Mr. Marcos’s heirs, also argued that abuses during martial law or the ill-gotten wealth of the Marcoses are non-issues and therefore irrelevant to the debate on the interment of her clients’ patriarch.

The presidential directive to bury Mr. Marcos with full military honors was made official in an Aug. 7 memorandum by Defense Secretary Delfin N. Lorenzana ordering AFP Chief General Ricardo R. Visaya to prepare for the transfer of Mr. Marcos’s body at the family mausoleum in Ilocos Norte to the Taguig cemetery.

The SC’s earlier status quo ante order which stopped preparations for the burial was extended from until Sept. 13 to until Oct. 18, covering the planned burial initially set on Sept. 18.

Amid repeated questioning by SC justices, Mr. Calida stuck to his central argument in his opening statement that the wisdom behind ordering Mr. Marcos’s burial at the national shrine should not be subject to court adjudication, as it is a purely a political and not a legal matter.

He questioned why orders made by previous presidents on the matter of Mr. Marcos’s interment were never challenged in court. Former President Corazon C. Aquino, the democracy icon whose husband’s death sparked a revolution that ousted Mr. Marcos, had barred the return of Mr. Marcos’s body to the Philippines. President Fidel V. Ramos allowed its return but only for burial in Mr. Marcos’s hometown of Sarrat, Ilocos Norte.

The interpellation by other justices showed the other facets of the legal challenges which had numbered to eight petitions before the high court, including the issue of the effectiveness of reparations made to Marcos-era victims of human rights abuses.

Commission on Human Rights chairman Jose Luis Martin “Chito” C. Gascon, who was an invited resource person by the Court, said the honorary burial of Mr. Marcos “would in effect be in contravention of the spirit and effect” of the country’s reparations law in behalf of those victims.

The honorary burial of Mr. Marcos was a campaign promise by President Rodrigo R. Duterte, who won by a landslide of 16 million votes last May, presenting himself, like Mr. Marcos in his time, as anti-oligarch.

Mr. Calida argued that this promise was overwhelmingly endorsed by the Filipino people given Mr. Duterte’s electoral victory -- a “vox populi too deafening to be ignored.”

But Mr. Leonen stressed that 61% of the voters did not agree with the president, saying Mr. Duterte did not command a majority vote.

Chief Justice Maria Lourdes P.A. Sereno asked if a political promise constitutes a public purpose, as the president is entitled under the administrative code to allocate public funds and public property but only for a public purpose.

Despite other laws cited by petitioners in their pleadings and justices in their interpellation, Mr. Calida said there is no law barring Mr. Marcos’s burial at the Taguig cemetery.

“I will stick to my guns. I believe there is no law preventing the burial of Mr. Marcos at the Libingan,” he told the Court.

Mr. Calida stressed that AFP regulation 161-375 already sets the limitation as to who are qualified to be interred at the Heroes’ Cemetery.

The regulation disqualifies “personnel who were dishonorably separated/reverted/discharged from the service and personnel who were convicted by final judgment of an offense involving moral turpitude.”

Mr. Calida said Mr. Marcos’s 1986 ouster through a peaceful revolution is not considered a dishonorable discharge from military service, as he was not on active duty at that time.

He said Mr. Marcos had long been a civilian when he was ousted.

He also said Mr. Marcos was never convicted of moral turpitude, which he interpreted to mean a conviction by a military tribunal on the basis of violations of the articles of war.

Senior Associate Justice Antonio T. Carpio questioned the classification essentially made by Mr. Calida’s interpretation, saying Mr. Calida is interpreting the AFP regulation on the Heroes’ Cemetery as only applicable to soldiers and not civilians.

“Are you saying civilians are absolutely qualified to be interred at Heroes’ Cemetery?” Mr. Carpio asked.

“Don’t you see the discrimination, counsel?” Mr. Leonen also asked.

The Taguig burial grounds -- where the remains of Filipino war heroes and revered personalities are laid to rest -- was previously called the Republic Memorial Cemetery until a proclamation by former President Ramon dF. Magsaysay renaming it to Heroes’ Cemetery.

Apart from soldiers, there are civilians including national artists interred at the said state cemetery which is listed by the NHCP as a national shrine.

The AFP regulation which sets the qualifications for the individuals to be buried at the Heroes’ Cemetery must apply to both soldiers and civilians or it will violate the 1987 Charter’s equal protection clause, petitioners earlier argued.

Mr. Leonen highlighted the importance of a statutory basis for Mr. Calida’s argument on Mr. Marcos’s qualifications, instead of the state merely citing an AFP regulation.

Ms. Sereno also pressed Mr. Calida to explain how “one AFP regulation which to you does not disqualify” Mr. Marcos trumps all the laws and international norms cited by petitioners.

She cited the Human Rights Victims Reparation and Recognition Act of 2013, which declares as public policy the “rehabilitation of victims of torture or similar practices and their families.”

Petitioners had also cited the “inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations” under the Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity.

But Mr. Calida said the international instruments mentioned by petitioners are not customary international law and are therefore not legally binding.

He also assured the public that the compensation mechanisms of the state for human rights-abuses victims will continue to be in place.

Mr. Leonen in response spoke of “symbolic reparations” apart from “monetary reparation.”

Petitioners in this longstanding and divisive controversy have argued that burying Mr. Marcos at the state cemetery will associate him and his past actions to heroism, a narrative that will cause what they called “retraumatization” of martial law victims.