Why the proposed ‘Marcos Day’ is in conflict with the law

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Why should a proposed law commemorating the birth of a former president be at issue now? The simple answer is that it is complicated by historical facts and existing law.

Editor’s note: Ross Tugade is a lawyer with the Commission on Human Rights and a law professor. She was a former Head Executive Assistant to the Chairperson of the Human Rights Victims’ Claims Board. Her body of research includes transitional justice on the martial law era. The opinions expressed in this commentary are the author’s.

Metro Manila (CNN Philippines Life) — As the COVID-19 crisis continues to ravage the Philippines, the House of Representatives approved House Bill No. 7317 on third reading last September 2, 2020. The proposed legislation — carried by an overwhelming majority — seeks to declare September 11 as “President Ferdinand Edralin Marcos Day” in Ilocos Norte. While the bill only has a localized effect, its potential consequences are far and wide: it would serve as an effective State-sanctioned rehabilitation of the devastating Marcosian legacy.

Many examples of memorialization by way of Congressional legislation or executive imprimatur are found throughout Philippine history. The commemoration of Jose Rizal’s death anniversary, for instance, was first instituted through a decree issued by Emilio Aguinaldo in 1898. In the early post-war years, RA 229 was enacted to further regulate the observance of Rizal Day.

So why should a proposed law commemorating the birth of a former president be at issue now? The simple answer is that the matter with HB 7317 is complicated by historical facts and existing law.

The numbers on record

In terms of numbers, there are existing historical estimates of the extent of human rights violations during the Marcos regime. Alfred McCoy, in his article “Dark Legacy: Human Rights Under the Marcos Regime” projects these figures: 3,257 were killed, 35,000 tortured, and 70,000 incarcerated.

Meanwhile, during the historic work of the Human Rights Victims Claims Board (HRVCB), a quasi-judicial body established by Republic Act No. 10368, the now-functus officio government office processed over 75,000 claims for monetary and non-monetary reparations. Before the HRVCB’s operations terminated by virtue of the law’s sunset provision, it adjudged 11,103 successful claims of human rights violations that took place from September 21, 1972 to February 25, 1986.

Almost 21% of these claims are cases of killings and enforced disappearances. Other categories of violation include torture, rape and sexual assault, arbitrary detention, unlawful arrest, and destruction of property or livelihood. The names of the successful claimants are set in a Roll of Victims and have been published in newspapers of general circulation.

The number of successful claims before the HRVCB reflect, at the very least, a portion of historical fact. The actual number of victims could be higher. This, assuming that not every victim was able to file a claim for reasons such as death, the lack of legally recognized representatives, or filing claims beyond the period set by law. These incidents have been acknowledged under the process of law as human rights violations committed by the State under the rule of President Marcos.

On the aspect of financial-related offenses, no less than the Supreme Court, in Republic vs. Sandiganbayan declared that the Republic “was able to establish the prima facie presumption that the assets and properties acquired by the Marcoses were manifestly and patently disproportionate to their aggregate salaries as public officials.” In the end, the court forfeited in favor of the Republic of the Philippines “the estimated aggregate amount of US$658,175,373.60 as of January 31, 2002, plus interest.”

Legal acknowledgment of the dictatorship

The 1987 Constitution, which serves as the legal bedrock of the Philippines, is in so many ways a response to historical experience during the Marcos dictatorship. During the deliberations of the Constitutional Commission of 1986, former senator Ambrosio Padilla said this about the work of writing the new constitution: “it is a task that will place our nation, long derailed by 14 years of martial misrule, back on the tracks of constitutional democracy, which is the key to political stability and economic recovery.”

The records of the Commission are filled with such statements, reflecting the framers’ intent. One of the declared State Policies in the charter itself is the respect for human rights. It also contains various legal safeguards against abuse.

Legal acknowledgement of the Marcoses’ historical legacy is also found outside the confines of the constitution. Executive Order No. 1, s. 1986, which had the effect of legislation, created the Presidential Commission on Good Government to assist in the recovery of ill-gotten wealth. In 1999, President Ramos, by virtue of his ordinance powers, issued Executive Order No. 82, which created an EDSA People Power Commission. President Rodrigo Duterte, in 2017, issued Executive Order No. 47, which amended the Ramos-era E.O. to further integrate EDSA People Power commemoration with the work of the National Historical Commission of the Philippines.

Perhaps the centerpiece legislation that effectively galvanized State recognition of the legacy of the martial law years is R.A. No. 10368. The law cites, as a legal basis, the 1987 Constitution as well as the Philippines’ various obligations under international law. Beyond its legal framework, the Philippines, through this act of Congress, cited a “moral obligation” to “recognize and/or provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they suffered under the Marcos regime.”

Cumulatively, these laws are animated with the spirit of historical reflection.

Historical revisionism in increments

HB 7317 would not be the first legal path towards Marcosian rehabilitation. In 2016, the Supreme Court decided Ocampo v. Enriquez — more infamously known as the Marcos burial case — where now-Chief Justice Diosdado Peralta stated in the majority opinion that the President’s decision was a “political question” beyond the Court’s review.

The social and political effect of the Ocampo case cannot be understated. Together with HB 7317 that is looming in the shadows, the legal architecture built around rejecting the legacy of dictatorship is slowly being chipped away, eroded beyond recognition.

All of this points to the shortcomings of a narrow response to a deep historical wound. Historical transitions must involve all aspects and institutions of social and political life, not just the toolbox of the law. Dealing with the past also means keeping promises to the future.