Monday, August 15, 2016

Petition against Ferdinand Marcos burial at LNMB will fail on pure legal grounds


Good that there is now a petition for certiorari against the Marcos Burial with the SC so that this issue will now be decided on the basis of the law.

And in my analysis, this attempt has a good chance of failing.

Let me explain.

Right now there are three relevant laws/regulations.

*RA 289
*RA 10368
*AFP Guidelines

Now, let us take these one by one.

RA 289 is the law that provided for the construction of a national pantheon for presidents of the Philippines, national heroes and patriots of the country.  Its pertinent provision would be Section 1, which reads:

Section 1.    To perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn, there shall be constructed a National Pantheon which shall be the burial place of their mortal remains. 

Now, the main argument of the petition is that Marcos, while a President, is not worthy of inspiration and emulation for his alleged crimes and human rights violations.

This is an issue of moral judgment, and is a matter of opinion, and for it to have legal valence, it has to be supported by clear judicial determination of guilt of something that would result to Marcos not being worthy of inspiration and emulation.

RA 289 does not in its own provide that.

Of course, the petition raises as an argument the fact that he declared Martial Law and was subsequently ousted by a popular uprising in 1986.

But these arguments will meet legal roadblocks.

On the first, declaring Martial Law is a constitutionally-guaranteed power vested on the President under the 1935 Constitution.

And on being ousted, this is a political process that in itself may be insufficient to serve as legal basis.

The petitiion has another recourse, which is to point to the human rights violations under Martial Law.

The oppositors are therefore banking on RA 10368, which is an act passed in 2013 which provided for reparation and recognition of victims of human rights violations during the Marcos regime, documentation of said violations, appropriating funds therefor and for other purposes.

The main argument of the petition is that RA 10368 is a law that recognizes the existence of human rights violations during Martial Law, and these are acts that incriminate Mr. Marcos.

But this would be met by a fundamental legal roadblock that can boomerang and even prove lethal to the human rights victims themselves.  Any attempt to equate RA 10368 with a conviction of Marcos for the crimes during martial law will amount to a Bill of Attainder, a law that declares the guilt of a person without going through the judicial process.  The 1987 Constitution prohibits Bills of Attainder.   There is the risk that RA 10368 will even be declared unconstitutional. 

RA 10368 therefore appears to be a potential check-mate.

And the petition could not even seek refuge with the AFP Guidelines on who are qualified to be interred at the Libingan ng mga Bayani, which include the following:

*Medal of Valor awardees
*Presidents or commander-in-chief, AFP
*Secretaries of national defense
*AFP chiefs of staff
*Generals/flag officers of the AFP
*Active and retired military personnel of the AFP (including active draftees and trainees who died in line of duty, and active reservists and CAFGU Active Auxiliary who died in combat-related activities)
*Former members of the AFP who laterally entered or joined the Philippine Coast Guard and the Philippine National Police
*Veterans of Philippine Revolution of 1890, World War I, World War II, and recognized guerrillas
*Government dignitaries, statesmen, national artist and other deceased persons whose interment and re-interment has been approved by the commander-in-chief, Congress or the secretary of national defense
*Former presidents, secretaries of defense, dignitaries, statesmen, national artists, widows of former presidents, secretaries of national defense and chief of staff

Under this enumeration, Marcos clearly qualifies.

Now, the final argument of the petition is to rely on the provision that those who have been dishonorably discharged from service, or personnel convicted of an offense involving moral turpitude, do not qualify for interment at the cemetery.

Here, the petition will be facing an uphill battle once again.

Marcos is not just a personnel.  He was the President of the Republic.

And if the petitioners would like to treat him as a personnel, and since it is clear in the wordings that this applies to members of the AFP, they have to first agree that Marcos indeed was a soldier.

The problem is, and granting without agreeing that we can treat him like an ordinary military personnel, there is no record of him being dishonorably discharged from service, service referring to the Military, or that there is no record of him being convicted of an offense involving moral turpitude.

Petitioners raise the issue that his ouster from the Presidency by virtue of a revolt amounted to a dishonorable discharge, except that this creative attempt will not fly for the simple reason that there is a clear legal definition for a "dishonorable discharge," which is the dismissal of someone from the armed forces as a result of criminal or morally unacceptable actions.  And this does not apply to a President.

The burial of Marcos at the Libingan ng mga Bayani, in the end, will be decided on the basis of it being a political and moral question.  And in this province, the Court has always ruled to stay away and leave the political process alone.

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Antonio Contreras as posted on Facebook:
https://m.facebook.com/story.php?story_fbid=10205940332741606&id=1658231410

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