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Never Again, the limits of the law, and the demands of history

By Ross Tugade Published Sep 21, 2021 5:27 pm Updated Sep 22, 2021 9:41 am

When the Marcos regime fell from power, laws were recast in the mold of the then-triumphant atmosphere of People Power.

The way political forces shaped the legal order of 1986 and the years that followed was in part a way of dealing with the immediate authoritarian past. Law and lawmaking, in this sense, are contested fields. They help mediate the way we remember.

Throughout our history, the law served a crucial role in making regimes or unmaking them. 

At the height of the dictatorship of Ferdinand Marcos, there were hardly any checks on the unfettered presidential power to rule by decree. The Supreme Court later reflected on the power concentrated on Marcos himself in a 1990 decision“The trouble with presidential decrees is that they could be, and sometimes were, issued without previous public discussion or consultation, the promulgator heeding only his own counsel or those of his close advisers in their lofty pinnacle of power.”

Law, insofar as it prescribes individual conduct, is also a vessel for collective memory.

Part of the Marcosian legacy we are still grappling with is the way law has become a whip in the hands of the very few.

The legal order after Marcos was deliberately constituted to carry democratic values as the 1987 Constitution is markedly pro-human rights and espoused a democratic system of government. Aside from the fundamental law, we can find in various laws and issuances enacted much later the idea of resisting a return to authoritarian rule and the preservation of its accompanying historical narrative. 

Law, insofar as it prescribes individual conduct, is also a vessel for collective memory. For when the law asks us to remember, it also teaches us how to act. Public commemorations formalized through law or other issuances shape public rituals. However, a significant accomplishment after the fall of the Marcos dictatorship is not just to remind the Filipino people when and how to remember. These laws also tell us what and who to remember. 

Are laws the pinnacle of our call to say 'Never Again'?

We have in our statute books, for instance, the Human Rights Victims Reparation and Recognition Act, which declares as a State policy the recognition of “the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos.”

This particular law enabled victims of the Martial Law regime to file claims and be awarded with reparations for the violations they experienced. Legislating this scheme should have already sent out the strong message that the Marcos regime is a dark period of history marked by plunder and State violence. But this begs the question, are laws the pinnacle of our call to say Never Again

To say “Never Again!” in relation to the Marcos dictatorship is not—and should never be—a mere recitation of a preserved moment in time. It is a reference point for both remembrance and action, a form of active correction of historical injustices and their outcomes. When thought of this way, laws are but one of the starting points where to act. The law can be as meaningful as how justice is imagined. As historical experience teaches us, law is only one one aspect of our political lives. Education and culture play important roles as well.

When disinformation is actively peddled, or when those who had a direct hand in or benefitted from the injustice suffered by many are rehabilitated in a very public manner, it should not be too much to ask for consequences. In the first place, consequences should have met the perpetrators of plunder and human rights violations even before they had the chance to refurbish their reputation. One can argue the case that this is territory we landed on because enabling institutions and political actors exist. This is a multifaceted issue that goes beyond the existence of laws that regulate memory. 

We can navigate this difficult question, for instance, through the power of a vote.

In principle, while laws may be able to address historical lies and punish harmful conduct, a fractured country like ours would benefit from a fundamental reckoning with different forms of injustices that persist until today. We can ask ourselves what kind of politics we have to demand from our politicians. We can navigate this difficult question, for instance, through the power of a vote.

We must remember, though, that historical fact is being repudiated here and now. The urgency of the present requires us to hold those who distort matters of historical record and traffic lies accountable in the ways that are possible. While the justification of having memory laws can be debated perpetually, the crisis of our historical moment cannot wait.