Monday, November 21, 2016

MEL STA. MARIA | Holding the Supreme Court accountable for the Marcos-Burial Decision

See - MEL STA. MARIA | Holding the Supreme Court accountable for the Marcos-Burial Decision

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Atty. Mel Sta.Maria is the Dean of the Far Eastern University Institute of Law and Professor at the Ateneo de Manila School of Law.

If one thinks that the Marcos-Libingan ng mga Bayani (LNMB)-decision is wrong, then he/she must not be inhibited/prevented from expressing that it is wrong. Supreme Court decisions though final must not be immune from critical debate. And that debate can go on and on even to the point of annoyance and of saying that the decision ignores the foundation upon which the Constitution was built.

As citizens, we will accept decisions as a legal development (whether negative or positive) but just because it is a promulgated-ruling does not mean that we should stop those who believe that it is a horrible decision from expressing and explaining that it is a horrible one.

Supreme Court Justices are high public officials with no direct mandate from the sovereign people. They are not elected and yet they have the most secure tenure with high-paying salaries and very generous pensions funded by taxpayers' money. They are granted great power to determine important cases ranging from individual private concerns to interest involving the whole nation and our democratic way of life. So much privileges are given to these magistrates and yet no direct means are given to the people to immediately put them to task on decisions which, at least perceivably, are horrendous.

The notion of a cloistered judiciary beyond critical scrutiny belongs to a bygone era. Then US Supreme Court Associate Justice, Mr. Justice Brewer said:

"It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its justices should be the objects of constant watchfulness by all, and its judgments subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The moving waters are full of life and health; only in the still waters is stagnation and death." (Government by Injunction, 15 Nat'l Corp. Rep. 848,849)

So for me, this Supreme Court Marcos-LNMB-decision is only the start of the second stage of the narrative. And that second part is the holding of the Supreme Court, its members or at least nine (9) of them accountable for their decision – even if only via public opinion. We must not forget that justices are men and women who are fallible just like all of us. They too can commit mistakes – and because of their highly sensitive positions – mistakes that are far-reaching, damaging, disgusting, and embarrassing.

Most of all, these magistrates are still public servants. The Constitution provides that they "must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives."

Did this Marcos-LNMB-decision do justice to the thousands of human rights victims of the regime of the dictator Ferdinand Marcos? Was the decision, though, in fact, presenting an issue of whether or not the President acted with grave abuse of discretion, in effect, a case of determining whether or not to honor the memory of the ruthless dictator in a most sacred place reserved for heroes? There is no doubt in my mind and, I am sure, in many others that it is the latter. And if it were indeed so, was it an act of patriotism to allow that burial? Did the decision affirm and enhance the quality of national pride uplifting us all ? Or did it usher in a disgraceful revival of impunity?

What is so abhorring in the decision was for it to declare that the ouster of the dictator Marcos by the "so-called EDSA Revolution" was a political act that "should not be automatically given a particular legal meaning other than its obvious consequence – that of ousting him as president." It appears to me that this statement, intentionally or not, seriously condescends one of the nation's greatest achievements – the unceremonial ouster of a dictator – which was hailed around the world.

Also, the statement is offensive to the sensibilities of all those who sacrificed so much resisting the Marcos autocratic regime.

And, contrary to such condescending declaration, however and whenever a President has ceased to be in office, whether by resignation, impeachment, death, non-re-election, or, in the Marcos-burial case, forced ouster, is by itself an occurrence loaded with legal meaning and consequences. The issues of succession, legitimacy or illegitimacy of an administration, form of government, and liabilities come into play. Such cessation necessarily involves legalities or issues thereof of enormous national importance. That is not hard to see.

Justice Oliver Wendell Holmes said in his masterpiece article "Path of the Law": "The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know." Simply stated, historical facts precede and are embedded in the law. National developments, especially highly significant ones, such as a President's ouster, will always have significant legal impact – affecting, as they do, the direction of the nation and its government. Chief Justice Maria Lourdes Sereno succinctly said it best: "For the Court to pretend that the present dispute is a simple question of the entitlement of a soldier to a military burial is to take a regrettably myopic view of the controversy. It would be to disregard historical truths and legal principles that persist after death."

And the "historical truths" leading to the flight of Ferdinand Marcos to Hawaii are uncontroverted. His regime looted our national treasury. The PCGG already recovered billions of dollars of ill-gotten wealth and, as many said, they are only the "tip of the iceberg." Summary executions, tortures, enforced or involuntary disappearances and other gross violations of human rights victimized so many as determined and recognized by a declared public policy statement enshrined in a law, Republic Act No. 10368 or the Reparation of Human Rights Victims Law. The massive acts of fraud during the 1986 snap election and all elections during that era were unprecedented. The evidence are just compelling.

The ouster of Marcos, therefore, as President was not precipitated by some form of national and political whim. It was the legal result of Marcos' own illegal and criminal acts. For so long the people endured these atrocities in silence until they decided Marcos had to go. To bury him in a public and sacred place desecrates the people's collective decision rejecting Marcos' gross misdeeds that inflicted so much damage to the nation. It is reinstatement of impunity – a dreadful notion full of legal significance.

Justice Leonen said in his dissent: "The burial of Ferdinand E. Marcos at the Libingan ng mga Bayani is not an act of national healing. It is an effort to forget our collective shame, to bury our inaction for many years. It is to contribute to the impunity against human rights abuses and the plunder of our public trust."

Those who believe that the Supreme Court decision is unjust must continue to make known their animadversions. There is nothing wrong about that. Expressing antagonistic views, no matter how robustly loud, is not a condemnation of the Supreme Court but, a form of legitimate petition for the redress of grievance pursuant to the Constitution.

Democracy involves varying degrees of legitimate and intelligent advocacies even if they appear to be hopeless against the powers of great institutions, such as the Supreme Court and the Office of the President. But as Baron de Monstesquieu said: "If in the interior of a state you do not hear the noise of any conflict, you can be sure that freedom is not there." Indeed, when the time comes that, in a state, there is no more opposition providing clashing observations and vocal criticisms, then democracy is diminished. Government cannot make the citizens accountable for believing and voicing-out that its policies, promulgations and determinations are trash.

In this Marcos-LNMB-burial case, I believe the Supreme Court, or nine (9) of its members constituting the majority – Justices Peralta, Bersamin, Velasco, Brion, De Castro, Bernabe, Del Castillo, Mendoza and Perez – got it wrong.

On the other hand, the five (5) dissenters and their minority opinions – those who opposed the burial – Chief Justices Lourdes Sereno and Justices Antonio Carpio, Marvic Leonen, Alfredo Caguioa, and Francis Jardeleza – make many of us proud as Filipinos.

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