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Testing Constitutional Waters VIII: Coming Full Circle with the Application of Executive Power and Judicial Consistency in Marcos V

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Testing Constitutional Waters VIII: Coming Full Circle with the Application of Executive Power and Judicial Consistency in Marcos V Testing Constitutional Waters VIII: Coming Full Circle with the Application of Executive Power and Judicial Consistency in Marcos v. Manglapus and Ocampo v. Enriquez Sedfrey M. Candelaria* Angelo Francesco F. Herbosa** * ’90 LL.M., University of British Columbia; ’84 LL.B., Ateneo de Manila University School of Law. The Author is currently the Dean of the Ateneo de Manila University School of Law and is a professorial lecturer on Constitutional Law, Public International Law, Political Law Review, International Economic Law, Children’s Rights Law, and Indigenous Peoples’ Rights Law for the same university. He is a former member of the Government of the Republic of the Philppines (GRP) Negotiationg Panel for talks with the Communist Party of the Philippines/New People’s Army/National Democratic Front (CPP/NPA/NDF), former Chief Legal Consultant to the GRP Negotiating Panel for talks with the Moro Islamic Liberation Front, head of Research, Publication, and Linkages Office and the Department of Special Areas of Concern of the Philippine Judicial Academy of the Supreme Court of the Philippines, former head of the Indigenous Peoples’ Desk of the Ateneo Human Rights Center, and President of the Court Appointed Special Advocates for Children/Guardians Ad Litem Foundation of the Philippines, Inc. The Author’s previous works published in the Journal include Testing Constitutional Waters IV: Power of the Purse in Light of the Araullo and Belgica Rulings, 59 ATENEO L.J. 317 (2014); Postscript to the Supreme Court MOA-AD Judgment: No Other Way but to Move Forward, 54 ATENEO L.J. 269 (2009); Introducing the Indigenous Peoples’ Rights Act, 47 ATENEO L.J. 571 (2002); The Rights of Indigenous Communities in International Law, 46 ATENEO L.J. 273 (2001); The Legal Characterization of the Asia- Pacific Economic Conference (APEC) and the Individual Action Plans in International Law, 44 ATENEO L.J. 405 (2000); & The IMF and the Philippines: Anatomy of a Third World Debt, 36 ATENEO L.J. 18 (1992). He is also the co-author of Testing Constitutional Waters VII: Nationality, Citizenship, and Foundlings as Pronounced in Poe-Llamanzares v. Commission on Elections, 61 ATENEO L.J. 29 (2016); Testing Constitutional Waters VI: Developments in Treaty-Making and the Enhanced Defense Cooperation Agreement, 61 ATENEO L.J. 1 (2016); Testing Constitutional Waters V: The Proposed Bangsamoro Basic Law and the Primacy of the Sovereign Power of the State, 59 ATENEO L.J. 1027 (2015); Walking the Line: The Philippine Approach to Church-State Conflict, 58 ATENEO L.J. 842 (2014); Testing Constitutional Waters III: Areas for Constitutional Reform in the System of Checks and Balances — Making Sense of P-Noy’s Tuwid Na Landas, 57 ATENEO L.J. (2012), A Review of Legal Education in the Philippines, 55 ATENEO L.J. 567 (2010); Testing Constitutional Waters II: Political and Social Legitimacy of Judicial Decisions, 55 ATENEO L.J. 1 (2010); Consultation and the Courts: Reconfiguring the 2 ateneo law journal [vol. 62:1 I. INTRODUCTION ............................................................................. 2 II. THE CASES ...................................................................................... 5 A. Marcos v. Manglapus B. Ocampo v. Enriquez C. Executive Power III. CONSISTENCY OF THE APPLICATION OF EXECUTIVE POWER . 1 9 A. The Majority Decisions B. The Dissents C. Appointing Influence? D. “Cold neutrality of an impartial judge” IV. CONCLUSION ............................................................................... 29 I. INTRODUCTION Carved onto a hill in a lush valley in the outskirts of Spain’s capital, Madrid, a towering cross sits atop a basilica-cum-mausoleum commissioned by Spain’s former fascist dictator, Generalissimo Francisco Franco, to commemorate all the souls lost during the Spanish Civil War and to serve as their burial grounds. Named the Valle de los Caídos, or the Valley of the Fallen, it also serves as Franco’s final resting place. Ever since its commission, Philippine Peace Process, 54 ATENEO L.J. 59 (2009); An Overview of the International Legal Concept of Peace Agreements as Applied to Current Philippine Peace Processes, 53 ATENEO L.J. 263 (2008); The Juvenile Justice and Welfare Act of 2006: Changing Patterns and Responses for Juvenile Offending, 52 ATENEO L.J. 293 (2007); Legal Concept of Terrorism Under International Law and Its Application to Philippine Municipal Law, 51 ATENEO L.J. 823 (2007); Testing Constitutional Waters: Balancing State Power, Economic Development, and Respect for Human Rights, 51 ATENEO. L.J. 1 (2006); Courts and Social Context Theory; Philippine Judicial Reform as Applied to Vulnerable Sectors, 50 ATENEO L.J. 823 (2006); & The Philippines and the Convention on the Rights of a Child: Evaluating Compliance with Respect to International Standards for Procedural Rules Involving Children, 49 ATENEO L.J. 1016 (2004). ** ’19 J.D. cand., Ateneo de Manila University School of Law. The Author is a Member of the Board of Editors of the Ateneo Law Journal. He was Associate Lead Editor of the third Issue of the Journal’s 61st Volume. The Author would like to express his utmost gratitude to Ambassador Manuel A.J. Teehankee for his guidance in the conceptualization of the Article. Cite as 62 ATENEO L.J. 1 (2017). 2017] executive power and judicial consistency 3 the monument has been the subject of controversy,1 especially over the fact that some political prisoners — who belonged to the losing Republican side — were forced to take part in its construction.2 Recently, bodies of Republican soldiers interred therein were exhumed through a ruling by a local court.3 This has since reignited a fierce debate about whether Franco’s remains should also be relocated.4 Franco is a polarizing figure in Spanish politics.5 Dictators of other States, such as Nicolae Ceauşescu of Romania or Pol Pot of Cambodia, are more or less objectively denounced. This can be seen by the way Ceauşescu’s remains were buried in a simple grave in Bucharest,6 and Pot’s cremated body is interred beneath a simple tin hut in rural Anlong Veng.7 With regard to Franco, however, there remain both avid supporters and staunch denouncers.8 “Some Spaniards come here to honor him; others come to make sure he is still dead,”9 is a striking line delivered in a documentary that featured Franco’s grave in Valle de los Caídos, and clearly illustrates the dichotomy in opinion regarding such a controversial leader. 1. See generally Guy Hedgecoe, Controversy over monument to fascism’s fallen, IRISH TIMES, Apr. 1, 2015, available at http://www.irishtimes.com /news/world/europe/controversy-over-monument-to-fascism-s-fallen- 1.2160494 (last accessed Aug. 10, 2017). 2. Id. 3. See Ciaran Giles, Spain court ruling reopens debate over dictator’s tomb site, SAN DIEGO UNION-TRIB., May 10, 2016, available at http://www.sandiegouniontribune.com/sdut-spain-court-ruling-reopens- debate-over-dictators-2016may10-story.html (last accessed Aug. 10, 2017). 4. Id. 5. See generally STANLEY G. PAYNE & JESÚS PALACIOS, FRANCO: A PERSONAL AND POLITICAL BIOGRAPHY xi (2014). 6. See Roger Boyes, Nicolae Ceausescu is gone — but his ghost still haunts Romania, TIMES, Dec. 19, 2009, available at https://www.thetimes.co.uk/article/nicolae- ceausescu-is-gone-but-his-ghost-still-haunts-romania-kl8xmj2r23f (last accessed Aug. 10, 2017). 7. See Seth Mydans, Anlong Veng Journal; Praying to Pol Pot, Seeking Health and Good Luck, N.Y. TIMES, June 23, 2001, available at http://www.nytimes.com/2001/06/23/world/anlong-veng-journal-praying- to-pol-pot-seeking-health-and-good-luck.html (last accessed Aug. 10, 2017). 8. See PAYNE & PALACIOS, supra note 5. 9. Rick Steves Europe, Video, The Majesty of Madrid, May 14, 2014, YOUTUBE, available at https://www.youtube.com/watch?v=hifYpfW4NjI (last accessed Aug. 10, 2017) (line begins at 17:47). 4 ateneo law journal [vol. 62:1 On the other side of the world, in what was the colony of New Spain, the remains of former Philippine President Ferdinand E. Marcos were buried in the Libingan ng mga Bayani (LNMB), or the Heroes’ Cemetery when translated to English, in Taguig City, Philippines, on 18 November 2016.10 This was met with both support and widespread outcry.11 Marcos was the President of the Philippines for 21 years, until he was peacefully overthrown by the 1987 EDSA People Power Revolution.12 He would later die in Honolulu, Hawaii from heart, lung, and kidney ailments.13 His body was then returned to the Philippines from the United States (U.S.) in 1991, and the same lay in state in a glass box from 1993 in his native province of Ilocos Norte.14 The circumstances surrounding his burial in the LNMB, however, are far from simple. It essentially served as a culmination of events that spanned almost two decades, and cases that involved Marcos, his relatives, and close associates. This Article will focus on two particular landmark cases that centered on Marcos, with around 27 years between them. Further, the facts surrounding the cases can be said to be in stark contrast to each other. However, the legal justifications employed by the Supreme Court seem to be the same — one 10. Felipe Villamor, Ferdinand Marcos Is Buried in Philippine National Cemetery, N.Y. TIMES, Nov. 18, 2016, available at https://www.nytimes.com/2016/11/ 18/world/asia/philippines-ferdinand-marcos-burial-duterte.html?_r=0 (last accessed Aug. 10, 2017). 11. Cris Larano, Burial of Philippines’ Ferdinand Marcos in Heroes’ Cemetery Draws Outrage, WALL ST. J., Nov. 18, 2016, available at https://www.wsj.com/articles/philippines-gives-dictator-marcos-heros-burial- despite-protests-1479449261 (last accessed Aug. 10, 2017) & Ariel Paolo Tejada, Caravan of loyalists heads for Manila to support Marcos burial, PHIL. STAR, Oct. 14, 2016, available at http://www.philstar.com/headlines/ 2016/10/14/1633562/caravan-loyalists-heads-manila-support-marcos-burial (last accessed Aug.
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