Column: The Supreme Court vs the Marcoses

Published on October 18, 2016.

If the Supreme Court did not exist, an Inquirer editorial once argued, it would be necessary to invent it. We can add a corollary: If an occasion demanded its invention, it would be the series of legal issues arising from the Marcos dictatorship. Ferdinand Marcos rose to power through skillful use of the means of democracy—the same democracy he and his wife then subverted when he imposed military rule and assumed absolute power.

The Marcoses, to steal one of Philip Larkin’s unforgettable opening lines, “they f*ck you up.”

I use the present tense, because even though Marcos himself died a quarter-century ago, many parts of the legal and political and cultural edifice he built persist to this day. So yes, the Marcoses continue to mess with our mind—and proof lies in President Duterte’s unrepentantly legalistic view that nothing bars him from ordering the burial of the dictator’s remains at the Libingan ng mga Bayani (and honoring his campaign promises).

It’s a narrow interpretation of a tenuous legal principle, against the whole weight of history. This is Marcosian in both inspiration and execution, a privileging of the created legal order at the expense of national experience and the public interest.

As I have argued before, the Marcoses masterminded what we can consider the fourth occupation of the Philippines; can we imagine, will President Duterte countenance, burying an official of the Spanish, the American, or the Japanese colonial regimes in the national heroes’ cemetery?

It is eminently the role of the Supreme Court to untangle the many and messy bonds of the Marcosian brand of constitutional authoritarianism, to impose clarity on the deliberate chaos the dictator created—and to mete out justice. By and large, the Supreme Court has overcome its unfortunate history under the Marcos dictatorship by ruling repeatedly against the dictator. It has the duty, and the capacity, to speak clearly on the burial issue.

What a tragedy if the high court, through a failure of will or a perverted sense of consensus, decides the Marcos burial case using Marcos’ own kind of reductionist legalism.

* * *

Over lunch at the University of Hong Kong yesterday, a forum of lawyers and journalists heard a retired Hong Kong appellate justice speak on his experience. Everything was off the record, but at one point, answering a question about political pressure on judges, he spoke about the privilege of working in a truly independent judiciary. Then he said—and I trust he will not mind if I quote him: “The difference is, we know the institutions of civil society, including the press, will back us.”

I thought that was a telling affirmation. When I heard him, I thought of our Supreme Court, and the rumors circulating of a 7-7 ruling on the Marcos burial issue, and wondered whether the justices have done all they could to agree on a consensus that will find the backing, not merely of a single powerful individual, but all the institutions of civil society, including the press.

The retired appellate justice also said something else that struck me: “I have always been able to say what I like. If the judgment is wrong, it will be overturned on appeal, so there’s a safety net.” If the Supreme Court turns the Holmes dictum on its head, and privileges narrow logic over national experience, who will overturn it?

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Filed under Newsstand: Column, Readings in History, Readings in Politics

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