History and law go against Marcos burial at Libingan ng mga Bayani

In fact, the Supreme Court already ruled in 1989 that the return of Marcos from exile in Hawaii was no ordinary case. In Marcos v Manglapus, the court, speaking through Justice Irene Cortes, held that it was not about a regular Juan battling an unconstitutional infringement of his right to travel and to return to his homeland, but was the “case of a dictator forced out of office and into exile after causing 20 years of political, economic, and social havoc in the country, and who, within the short space of 3 years, seeks to return.”

A generation later, Philippine society must look at the issue of Marcos’ entitlement to a Libingan plot with the same incredulity and heightened skepticism, no matter how simply President Rody Duterte puts it. The High Court as the final arbiter of democratic and republican ideals must be on guard precisely because the President would want it to look disarmingly simple. 

The issue is as complicated as the 75,730 claims of human rights violations under the Marcos regime currently being processed by the Human Rights Victims Claims Board or HRVCB, which was established under Republic Act 10368. As envisioned by its authors, the law was passed to recognize the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance, and other gross human rights violations from September 21, 1972, to February 25, 1986; to restore their honor and dignity; and most importantly, for the State to recognize its moral and legal obligation provide reparation for the deaths, injuries, sufferings, deprivations, and damages they suffered under the Marcos regime.

In short, RA 10368 is supposed to provide victims with a full measure of justice in line with the definition of reparation in the Chorzow Factory case. In that case, the Permanent Court of Arbitration ruled, “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.” 

Accordingly, RA 10368 promises to wipe out the effect of the Marcos’ sins against the people. It also serves as a plain and painful reminder that the Philippines is just starting to fulfill its obligation under international law to provide reparation for victims of human rights violations under the Marcos regime. Now, we are faced with the situation where the claimants – a sizeable number of whom are from Mindanao – are awaiting the HRVCB’s decision on their claims, even as Marcos’ impending burial at the Libingan threatens to water down the legal and historical significance of any potential award.  

Bearing in mind the overriding evidentiary character of the NHCP’s historical determination and the human rights implications of the ongoing reparations process, the question arises whether the President’s headstrong determination to bury Marcos at the Libingan is nothing short of arbitrary and whimsical, and therefore illegal. To accord the man whose regime had perpetrated massive violations is to deprive the victims of their due measure of justice.

For the President to argue that his was only a decision to bury Marcos the soldier, and not Marcos the arch-violator of human rights, is to belittle the heroism and oblation of the women and men resting at the Libingan whose merits have been tried, tested and proven in accordance with law. In our constitutional framework, not even the strongest electoral mandate in history, should exempt the President and his subordinates, particularly the Secretary of Defense, from the scrupulous application of established legal standards. 

Incidentally, the Supreme Court’s power to correct any public official when the latter gravely abuses his or her discretion was made explicit in the present Constitution at the insistence of Chief Justice Roberto Concepcion, as a safeguard, a guaranty if you will, that the Court would not – as it had done decades ago in Javellana v Executive Secretary – wager the country’s future and shirk from its solemn duty to prevent it from sliding into another dictatorship. – Rappler.com 

Marc Titus D. Cebreros is a lawyer and former executive director of the Commission on Human Rights. He is currently Chevening scholar doing a masters in human rights law at Queen Mary, University of London.