Can a Hero’s Burial for Marcos be Legally Stopped?

The Philippine Supreme Court tackles this week three petitions which aim to stop the burial of the late dictator Ferdinand Marcos in a cemetery for heroes. The petitions, filed by victims of martial law, argue that giving the deposed strongman a hero’s burial is a dishonor to those who suffered under his 20-year regime.

The legal row is the latest chapter in an issue that has deeply divided the country. President Rodrigo Duterte, an ally and a friend of the Marcoses, has ordered the burial of the Marcos patriarch at the national shrine on Sept. 18. The controversial president says he wants Marcos buried there because he was a soldier and a former president.

That vow is just one factor in making Duterte one of the most controversial people ever to lead the Philippines. Over the weekend, he offered to lead the Philippines out of the United Nations and to start a new club of nations along with China and others, accused Sen. Leila de Lima, the former head of the Philippine Human Rights Commission, of having an affair with her drug-running driver, fired thousands of appointed civil servants on suspicion of corruption and continued to justify his bloody war on drug dealers.

Fake WWII guerilla unit

Subsequent records have found Marcos to have falsified his military record and claims of recognition by the US. Marcos claimed to have led a guerilla unit called “Ang Maharlika” during World War II. The unit was later found out to be fictitious. He said he has received war medals, an assertion that was debunked by the National Historical Commission as lies.

What made Duterte’s order divisive ultimately, however, is that it endows Marcos with an honor which – according to the families of the victims of Martial Law and human rights activists – he doesn’t deserve. Marcos placed the Philippines under martial law from 1972-1981. The era was defined by the reported abduction, torture and killings of thousands of people who opposed the regime and the theft of billions of US dollars. The Marcoses have denied that they had a hand in the atrocities.

This isn’t the first time that the placement of Marcos’s remains resulted in a legal tussle. In 1989, the country was caught in a heated debate on whether Marcos’s body should be brought back to Manila from the United States. Marcos died on Sept. 28, 1989, three years after he and his family fled to Hawaii amid calls for his removal in what is known as the 1986 EDSA revolution.

The High Court ruled on Oct. 27, 1989 that then President Corazon Aquino had “residual powers” not expressly stated in the 1987 Constitution which allowed her to bar the return of Marcos’s body to Manila.

Thirty years later, another case involves the remains of the man who even in death continues to divide the nation. The petitioners in both cases invoked the pursuit of justice. This time however, the legal quest to block the burial of Marcos in the cemetery for heroes has been described as shaky and weak by some legal experts.

No categorical ban

Dante Gatmaytan, a law professor at the University of the Philippines, said that the petitions relied more on the “spirit of the law” instead of directly showing the legal loopholes in Duterte’s order.

The petitioners argue that giving Marcos a hero’s burial violates the spirit of Republic Act, the law that grants reparations to the victims of martial law. Gatmaytan said this argument does not have a strong legal footing.

“There are no provisions directly addressing the issue with Marcos’ burial. I think the petition’s relying more on the spirit of the law which inherently is a weak argument,” he said.

Attacking the Republic Actitself, which created the national pantheon for heroes plus the guidelines of the Armed Forces of the Philippines (AFP) which specify who can be buried at the national cemetery for heroes, stands as a difficult challenge.

The AFP guidelines state the following can be interred in the national shrine:

a.) Medal of Valor Awardees;

b.) Presidents or Commanders-in-Chief, AFP;

c.) Secretaries of National Defense;

d.) AFP Chiefs of Staff;

e.) Generals/Flag Officers of the AFP;

f.) active and retired military personnel of the AFP, to include active draftees and trainees who died in line of duty, and active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat-related activities;

g.) former members of the AFP who laterally entered or joined the Philippine Coast Guard (PCG) and the Philippine National Police (PNP);

h.) Veterans of Philippine Revolution of 1890, World War I, World War II, and recognized guerillas;

i.) 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, and

j.) former Presidents, Secretaries of Defense, dignitaries, statesmen, national artists, widows of former Presidents, Secretaries of National Defense and Chief of Staff.

It disallows “personnel who were dishonorably separated/ reverted/ discharged from the service and personnel who were convicted by final judgment of an offense involving moral turpitude” from being buried there.

Gatmaytan pointed out that the above grounds for prohibition do not apply to Marcos. “There is nothing in the law that prohibits the burial of Mr. Marcos.”

Oscar Franklin Tan, a lawyer and Harvard alumnus, said the same. In a column at the Philippine Daily Inquirer, said that Marcos was not convicted of anything.

But what about the agreement?

The remains of Marcos have been preserved in a museum in Batac at the northern province of Ilocos Norte, his bailiwick. It was placed there following an agreement between then president Fidel Ramos and the Marcoses in 1992. Ramos and the Marcoses agreed that since his body would buried at llocos Norte, no burial at the national pantheon for heroes would take place.

Tan said however that even if a “binding legal agreement exists, the parties can change agreements anytime.”

Did that mean that the presidential legal adviser, Salvador Panelo, was correct in saying that Duterte’s order had superseded the agreement under Ramos?

No one has seen the agreement,” Tan said. But if it does exist in black and white, the lawyer said, the parties can still dictate and modify its terms. “Assuming that it is with the Philippine president and Marcos family and it is really a legal contract, don’t you think that president and the family can agree to change it?”

If changes have indeed been made in the agreement to pave the way for Marcos’s possible burial in the national cemetery, shouldn’t the amendment be done in a formal and official manner, however? This agreement, after all – even if it only involves two parties – has repercussions for the rest of country.

Tan, however, says it can be a simple marriage of politics and pragmatism. “If both parties agree as a practical matter, who will stop them? It’s really hard to overthink that agreement as a legal document.”

Win-win for Duterte

Duterte has released a statement saying that he will respect the decision of the high tribunal, whatever it may be.

Lisandro Claudio, a professor of political science from the Ateneo de Manila University, said that even if the Supreme Court (SC) stops Marcos’s burial, it will hardly make a dent on Duterte’s political currency, adding that on the contrary, the “ramifications might be good for Duterte.”

“He gets to claim to the Marcos supporters that he did what he could to allow the burial. On the other hand, the ire of the anti-Marcos groups will be muted since the SC will prevent the burial.”

Duterte thus gets to appease the Marcoses that he did his part, while those who have been critical of his move will stop attacking him. The political division is still there, but it will be buried to a certain extent – depending on what the SC says.