Making sense of the SC, Marcos burial, and the democratic process

On the one hand, the majority’s decision in Ocampo is a fine example of the limits of the judiciary under our tripartite system of government, particularly as regards its power of judicial review. Some have described this as the “counter majoritarian difficulty”: that by exercising its power to nullify the acts of co-equal branches of government (that is, the executive and the legislature), an unelected court could substitute its will for what would effectively be the will of the majority, who have acted through their duly-elected representatives. And this, perhaps, is what the majority in the Ocampo decision is saying: “There are certain things that are better left for history - not this Court - to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime, the country must move on and let this issue rest.”

In other words, the “correctness” of the burial of President Marcos is now a matter to be decided through the democratic process - that is, politically, and not judicially: the remedy, therefore, is now no longer through the courts, but through the legislature, the ballot box, or through the parliament of the streets. Whether that process will be successful for those who decry Marcos’s burial is, unfortunately, a numbers game. And that numbers game has so far tilted towards the 16 million Filipinos who voted President Duterte into power. Without sounding facetious, though: as they say in basketball – bilog ang bola (the ball is round) – and the 16 million today may not be the same million tomorrow, or in one month, or in one year. The legislators who are silent on this issue today, may not be silent on this or other similar issues tomorrow, or in one month, or in one year. Who knows – the President may even change his mind. The wheels of democracy grind slowly in this way but, like history, it grinds (or bends) toward justice. Therefore: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. [Art. III, Sec. 4, Phil. Const.]

Do I agree that former President Marcos should be buried in the Libingan ng mga Bayani? I do not. To bury him there would be the first step down the slippery slope that will end with a revision of Philippine history: that former president Marcos was anything other than a dictator and a thief. It is not only I who says this, but the Supreme Court also: This case is unique. It should not create a precedent, for 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, is in a class by itself [Marcos v. Manglapus].

Jefferson says that the price of democracy is vigilance. And in this time of great national divide on what, only 30 years previous in 1986, seemed to be as settled as the triumph of good versus evil, or of the light versus the darkness, the call goes out again to the heroes of EDSA to guard against the dying of that light – or perhaps, more crucially, to pass on that light to the younger generation. By what we have seen of them over the last days – and thankfully - they have accepted this call willingly, and with brave and defiant hands. There may perhaps still be hope, after all.  –

PJ Bernardo is a parter at a Singapore-based law firm and practices finance and foreign investment law. He was a member of the faculty of the Ateneo Law School, where he also received is law degree in 2005.  He pursued post-graduate studies in international finance at Harvard Law School in 2012. He hopes to return to teaching, his first love, in the very near future.