SC orals day 2: How justices pursued issues on Marcos burial

MANILA, Philippines – The Supreme Court justices focused on 3 major issues during the second round of oral arguments over the burial at the Libingan ng mga Bayani of the late president Ferdinand Marcos. 

The respondents, through Solicitor General Jose Calida and lawyer Hyacinth Rafael-Antonio, had argued why the High Court should allow the burial despite protests from petitioners composed of activists and Martial Law victims.

Calida explained on Wednesday, September 7, that the wisdom behind President Rodrigo Duterte’s support for Marcos’ interment at the Libingan ng mga Bayani is “beyond the ambit of judicial review.”

During the oral arguments, the SC justices gave significant attention to the human rights violations committed during Marcos’ 21-year rule; whether or not public funds should be used to fulfill Duterte’s campaign promise; and the totality of laws that should be applied in deciding for or against the burial. 

‘Retraumatization’ for Martial Law victims

In his opening statement, Calida said that the 14,195,344 votes that former Senator Bongbong Marcos garnered in the last vice presidential elections show "that there is no more national trauma as regards the Martial Law regime.”

Bongbong Marcos is the sole son of the elder Marcos.

Justice Alfredo Benjamin Caguioa, however, cited Republic Act (RA) Number 10368 or the Human Rights Victims Reparations Act. (WATCH: Highlights: 1st day of SC orals on Marcos burial)

It recognizes the horrific ordeal of Martial Law victims by compensating them for the damages they suffered. The law also mandates the establishment of memorials for the victims.

Caguioa then asked the Solicitor General if allowing a hero’s burial for Marcos would be a form of “retraumatization” for the victims.

The justice recalled the argument of Commission on Human Rights chair Chito Gascon, who said that reparation does not only involve giving money for the victims’ pain but also ensuring that what they suffered through will not happen again. 

Caguioa then asked Calida: “The pain that they feel do not reflect the national psyche today?”

Calida said that as a human being, he feels their pain, but a court of law is not the venue for them to express it. 

He also said that when the SC asked some women Martial Law victims to recount their experiences before the court on August 31, that is a form of retraumatization. 

Spending public funds to fulfill Duterte’s promise

Giving a hero’s burial for Marcos was a campaign promise of Duterte, who had won by more than 16 million votes. The President, however, said he would respect the SC’s decision on the matter.

Calida said Duterte only wants to bury Marcos at the Libingan ng mga Bayani to bring about national healing.

Still, Chief Justice Maria Lourdes Sereno said that public money cannot be spent to fulfill a political promise. Her line of questioning was similar to that of Senior Associate Justice Antonio Carpio last week.

Carpio appeared then to imply that because Marcos was dishonorably discharged as commander-in-chief, public funds cannot be used for his burial.

Sereno asked on Wednesday if the rights and feelings of 75,000 recognized Martial Law victims and their families should be set aside just to achieve national healing.

The Chief Justice also said that Filipino taxpayers are the ones shouldering the financial reparation for the victims, not the Marcos family. 

“Where is the reparation, where is the acknowledgment, where is the confession, where is the penalty on the part of the Marcoses?” asked Sereno.

Calida argued that a hero’s burial for Marcos will not get in the way of the reparation for the victims.  

He also urged the SC justices to look beyond the needs of the Martial Law victims because “there are also other provinces, tribes who want reconciliation by burying Marcos at Libingan.”

Totality of laws to consider 

Supreme Court Associate Justice Marvic Leonen asked Calida about the government’s so-called “selective” portrayal of Marcos in arguing in favor of his hero’s burial. 

"Why is it that the government wishes to take only part of the life of Marcos and highlight it to use it as a justification to bury him in the Libingan ng mga Bayani, but tones down the other portions of this individual?” said Leonen, who once again referred to RA Number 10368. 

Leonen said the law recognizes that Marcos, as former president, had “provided the atmosphere for at least 75,000  human rights violations during Martial Law.”

Calida then reiterated the respondents’ position that based on the rules of the Armed Forces of the Philippines (AFP), Marcos is qualified to be buried at the Libingan ng mga Bayani as former president, commander-in-chief, soldier, and war veteran. 

Leonen also grilled Antonio on the same matter. He cited the International Covenant of Civil and Political Rights (ICCPR), which the petitioners say, will be violated if the government allows Marcos’ burial. 

The ICCPR mandates the state to ensure that a person whose rights are violated must be recognized and be given “effective remedy.”

Leonen asked Antonio about the “hierarchy of law” that the SC justices can consider with regard to the case involving Marcos’ remains. Antonio replied that the 1987 Constitution, statutes, and treaties are all above rules and regulations like that of the AFP.

“My question is, if there is a conflict between the AFP regulation and a statute or a treaty, which shall govern?” said Leonen.

Antonio then replied that treaties and statutes will govern over administrative issuances. 

At the end of the oral arguments, both parties to the case were asked to submit their respective memoranda within 20 days. Resource persons were ordered to submit their position papers should they wish to do so.

The SC also decided to extend the status quo ante order on Marcos’ remains to October 18, thereby stopping the government from making any preparations to bury the late dictator at the Libingan ng mga Bayani on the originally planned date on September 18. – Rappler.com

Mara Cepeda

Mara Cepeda writes about politics and women’s rights for Rappler. She covers the House of Representatives and the Office of the Vice President. Got tips? Send her an email at mara.cepeda@rappler.com or shoot her a tweet @maracepeda.

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