Roundup: Dissenting opinions of SC justices on Marcos burial

MANILA, Philippines – Five magistrates of the Supreme Court voted against granting a hero's burial for former President Ferdinand Marcos.

The five justices who dissented against burying Marcos at the Libingan ng mga Bayano include Chief Justice Maria Lourdes Sereno and Associate Justices Alfredo Benjamin Caguioa, Antonio Carpio, Marvic Leonen and Francis Jardeleza.

The SC en banc voted 9-5-1 dismissing the consolidated petitions arguing that a hero's burial for Marcos would be a "grave injustice" for victims of human rights violations during Martial Law.

The SC Public Information Office released the dissenting opinions of Caguioa, Carpio, Leonen and Sereno on the Marcos burial cases.

Here's a summary of their main points.

Chief Justice Maria Lourdes Sereno

1. The court has the authority to resolve this controversy under the expanded concept of judicial review in the 1987 Constitution.

a. With the advent of the 1987 Constitution, respondents can no longer utilize the traditional political question doctrine to impede the power of judicial review.
b. In the exercise of its expanded judicial power, the Court has decided issues that were traditionally considered political questions.
c. The assertion that the burial is intended to implement an election renders the matter non-justiciable.

2. The president acted with grave abuse of discretion and in violation of his duty to faithfully execute the laws when he ordered the burial of Marcos in the Libingan ng mga Bayani.

a. Statutes and jurisprudence establish a clear policy to condemn the acts of Marcos and what he represents, which effectively prohibits the incumbent President from honoring him through a burial in the Libingan ng mga Bayani.
b. The AFP does not have the power to determine which persons are qualified for interment in the Libingan.
c. The burial cannot be justified by mere reference to the President's residual powers; it is not unfettered, and such power can only be exercised in conformity with the entire Constitution.

3. To allow Marcos to be buried in the Libingan ng mga Bayani would violate international human rights law ad an independent source of state obligations, and would negate the remedies provided by Republic Act 10368.

a. Under international law, the Philippines is obligated to provide effective remedies, including holistic reparations, to human rights victims.
b. The burial would contravene the duty of the Philippines to provide reparations to victims of human rights violations during the Marcos regime.
c. The burial would run counter to the duty of the state to combat impunity.

4. Public funds and property cannot be used for the burial as it serves no legitimate public purpose.

a. The burial would contravene the purpose of the Libingan ng mga Bayani.
b. Respondents have not explained how the burial would serve the avowed policy of national unity and healing.
c. The burial would promote only the private interest of the Marcos family.

Associate Justice Alfredo Benjamin Caguioa

• The burial of former President Marcos does not raise a political question beyond the ambit of judicial review.
• For the same reasons that the interment serves no legitimate public purpose, no use of public property or public funds can be made to support it.
• The President may validly order the interment of former President Marcos in the LNMB pursuant to his power of control and his duty to faithfully execute laws, provided that no contravention of the Constitution, laws, executive issuances, public policy, customs and international obligations arises therefrom or is committed.
• The Solicitor General failed to show any contingency for the valid exercise of the President's residual powers, and likewise failed to demonstrate sufficient factual basis to justify the interment of former President Marcos in the LNMB.
• The interment of former President Marcos constitutes a violation of the physical, historical and cultural integrity of the LNMB as a national shrine, which the State has the obligation to conserve.

Associate Justice Antonio Carpio

• Marcos is disqualified from being interred at the LNMB.
• Marcos was forcibly removed from the Presidency by what is now referred to as the People Power Revolution. This is the strongest form of dishonorable discharge from office since it is meted out by the direct act of the sovereign people.
• Marcos' interment at the LNMB is contrary to public policy.

Associate Justice Marvic Leonen

• The President's verbal order, which were the basis for the issuance of the questioned orders of public respondents are invalid because they violate Republic Act 289, which was never repealed.
• The President's verbal orders, the Lorenzana Memorandum, and the Enriquez Orders all violate the requirement in Section 1 of Republic Act No. 289 that those buried must have led lives worth of "inspiration and emulation."
• Public respondents gravely abused their discretion when they failed to show that there was an examination of the sufficiency of the facts that would reasonably lead them to believe that the burial of the remains of Ferdinand E. Marcos at the Libingan ng mga Bayani would be in accordance with Republic Act 289.
• The President's verbal orders were issued with grave abuse of discretion because they violate Republic Act 10368 or the Human Rights Victims Reparation and Recognition Act of 2013.
• The President's verbal orders cannot be justified even under the provisions of the Administrative Code of 1987.
• The actions of public respondents are contrary to the President's oath of office because they encourage impunity.