The Supreme Court (SC) hears starting this morning oral arguments on the burial of the late former President Ferdinand E. Marcos at the Libingan ng mga Bayani (LNMB) in Taguig City.
Six petitions have been filed against the burial ordered by President Duterte. The SC has issued a status quo ante order that stopped temporarily its implementation until Sept. 12.
The SC has invited as resource persons Chairperson Maria Serena Diokno of the National Historical Commission of the Philippines, former Local Government Secretary Rafael M. Alunan, and representatives from the Presidential Commission on Good Government, the Office of the Ombudsman, the Human Rights Claims Board, and the Commission on Human Rights.
Among the procedural concerns to be tackled by the parties are whether the issues presented in the petitions constitute a judicial controversy, whether the petitioners have legal standing to file the cases, whether administrative remedies were exhausted, and whether the petitions do not violate the hierarchy of courts.
On substantial issues, to be tackled are:
1. “Whether or not the Challenged Issuances allowing the burial of Marcos amounts to a denial of the history of authoritarian rule and a condonation of the abuses committed by the Marcos regime, thereby violating the ultimate raison d’etre of the 1987 Constitution as a post-dictatorship charter.
2. “Whether or not the Challenged Issuances violate Art. II, Sections 11, 13, 23, 26, 27, and 28, and Art. XIV, Section 3(2) of the 1987 Constitution.
3. “Whether or not the issuance and implementation of the Challenged Issuances amount to a violation of the equal protection clause.
4. “Whether or not the issuance and implementation of the Challenged Issuances amount to a violation of the Executive’s faithful execution clause in the Constitution.
5. “Whether or not attendant and supervening events, such as but not limited to historical facts and laws enacted to recover ill-gotten wealth from the Marcoses and their cronies (e.g., Executive Order Nos. 1, 2, and 14; Republic Act No. 10368) and the pronouncements of this Court on the Marcos regime have nullified Marcos’s entitlement as a soldier and former President to a hero’s burial at the LNMB.
6. “Whether or not the respondents are in violation of any domestic law in allowing the burial of Marcos.
7. “What is the statute, rule, or regulation applicable to the dispute, which shall include but shall not be limited to: the law granting the President the discretion to determine the persons with the right to be buried at the LNMB; and the law allowing the AFP to grant burial honors to the late former President Ferdinand E. Marcos.
8. “Whether or not Republic Act 10368, the ‘Human Rights Victims Reparation and Recognition Act of 2013’ constitutes a legislative and executive validation of the human rights’ atrocities committed by Marcos during the Martial Law regime for which the former strongman and dictator is accountable personally and by command responsibility.
9. “Whether or not RA No. 10368 amended and modified the AFP Burial Guidelines at the LNMB by implicitly disqualifying Marcos from being interred at the Heroes’ Cemetery.
10. “Whether or not the petitions should be dismissed on the ground that it is a valid exercise of the President’s power under the Administrative Code.
11. “Whether or not the burial of Marcos violates RA 289.
12. “Whether or not the burial of Marcos is contrary to public policy.
13. “Whether or not the burial of Marcos is contrary to morals.
14. “Whether or not the respondents are in violation of any international law in allowing the burial of Marcos at the LNMB.
15. “Whether or not a heroes’ burial for Marcos would violate the right to a remedy and reparation for victims of gross violations of International Human Rights Law.
16 “Whether or not the Challenged Issuances violate valid and binding international obligations pertaining to impunity, ‘full and effective reparation,’ and ‘guarantee of non-repetition’.
17. “Whether or not the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law which was proclaimed by the UN General Assembly on December 16, 2005, gives rise to rights in favor of the petitioners.
18. “Whether or not the ‘Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity’ from the UN Commission on Human Rights Economic and Social Council are executory and demandable from the State and gives rise to rights.
19. “Whether or not the burial of Marcos would violate the International Covenant on Civil and Political Rights because it would deny the victims of the Marcos regime the remedies awarded to them by competent authorities.
20. “Whether or not the issuance of the AFP Regulations G 161-373 was made in the exercise of rule-making/delegated legislative powers of the executive, and therefore subject to amendment by Congress.
21. “Whether or not the Marcos family is in estoppel as it has waived the burial of Marcos at the LNMB after they had agreed to the four conditions imposed by the government for allowing Marcos’ s remains to be brought back to the Philippines.
22. “Whether or not the interment of the remains of Marcos at the LNMB violates an existing and enforceable agreement between the Philippine government and the Marcos family.
The SC said: “In view of the complexity of the issues material to the present consolidated cases which may require some technical clarification during the oral arguments, the Adjutant General 1 of the AFP is directed to attend the Oral Arguments. When called upon, they are expected to be able to competently and completely answer the questions related to, among others, their processes and procedures on the applications for burial at the LNMB.”
The six petitions against the LNMB burial of Marcos were filed by the groups of Saturnino C. Ocampo and members of the Bagong Alyansang Makabayan (Bayan) and the Samahan ng Ex-Detainees Laban sa Detention at Aresto (SELDA); Rep. Edcel Lagman and the Families of Victims of Involuntary Disappearance (FIND); former human rights commissioner Loretta Ann P. Rosales and members of the Coalition against Marcos Burial; former Senator Heherson T. Alvarez and former government officials and members of the academe and the entertainment industry; and separate petitions of the groups of Zaira Patricia Baniaga and Algamar A. Latiph.
The SQAO issued by the SC was addressed to Executive Secretary Salvador C. Medialdea, Rear Admiral Ernesto C. Enriquez (in his capacity as the Deputy Chief of Staff for Reservist and Retiree Affairs, Armed Forces of the Philippines], the Grave Services Unit (Philippine Army), General Ricardo R. Visaya (in his capacity as the Chief of Staff, AFP), Defense Secretary Delfin Lorenzana, and Philippine Veterans Affairs Office Administrator Lt. Gen. (ret.) Ernesto G. Carolina, who are the respondents in the six petitions.
DISMISS PETITIONS – SOLGEN
Earlier, the Office of the Solicitor General (OSG) representing the respondents had asked the SC to dismiss the petitions.
On top of other procedural and substantive arguments contained in its comment, the OSG said the challenge against the decision of President Duterte to bury the remains of Marcos at the LNMB is a political question that cannot be resolved by the SC.
It said the petitioners’ arguments “readily reveals the political, and, hence, non-justiciable nature of the petitions.”
“In essence, petitioners assail the wisdom behind President Duterte’s decision to inter the remains of a former President at the LNMB, made pursuant to the Constitution, laws, rules, and regulations,” the OSG said.
It pointed out that the “term political question connotes a question of policy. It refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or Executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.”
“In the exercise of his powers under the Constitution and the Administrative Code, President Duterte, in his wisdom, deems it appropriate to inter the remains of former President Marcos in a parcel of land of the public domain devoted for the purpose of being a military shrine…,” it stressed.
“It should likewise be emphasized that President Duterte’s order to allow former President Marcos’ interment at the LNMB is based on his determination that it shall promote national healing and forgiveness, and redound to the benefit of the Filipino people. Surely, this is an exercise of his executive prerogative beyond the ambit of judicial review,” the OSG pointed out.
MARCOS HEIRS’ COMMENT
In their comment, the Marcos heirs supported the government’s justifications in the interment of the late former President at the LNMB.
They told the SC the petitioners in the cases failed to point out clear and unmistakable rights or grave injury that they would suffer as a result of the interment.
“Allegations of violations of human rights personally experienced by petitioners and of others, in general, after declaration of martial law on Sept. 21, 1972, are denied. Apart from being irrelevant to the issue at hand, the allegations may not be assumed as facts but needs to be established with competent evidence,” they stressed.
They also said that the “allegations of the arrest and torture of many people, among whom are allegedly the petitioners, and their arrest and torture imputed to the President may not be assumed.”
They joined the OSG in asking the SC to dismiss the petitions for lack of merit.
PETITIONERS’ STAND
Some of the petitioners told the SC that “the interment of the remains of Marcos at the LNMB with the honors that supposedly befit only Filipino heroes with overall unblemished integrity and dignity is contrary to the Constitution.”
The petitioners told the SC that the respondents abused their discretion in allowing the burial of the late president at the LNMB through a memorandum issued on Aug. 7, 2016, by Defense Secretary Lorenzana. They said the memorandum that was an offshoot of a verbal order by President Duterte, is illegal and contrary to public policy.
They said that AFP Regulations G 161-373 provides that “those who have been dishonorably discharged from service, or personnel convicted of an offense involving moral turpitude, do not qualify for interment.”
The petitioners pointed out that Republic Act No. 289 provides the LNMB was constructed “to perpetuate the memory of all Presidents of the Philippines, national heroes, and patriots for the inspiration and emulation of this generation and of generations still unborn.”
They said Marcos’ burial at the LNMB violates Republic Act 10368, the Human Rights Victims Reparation and Recognition Act of 2013, which enshrines into law the recognition of the human rights violations committed during the Marcos regime and the moral and legal obligation of the State to recognize and provide reparation to the victims.