In honor of the dead

By Atty. Eduardo T. Reyes III

Since the lockdowns were handed down, we have yet to see people trooping to the cemeteries to visit their dead during this time of the year. This year, we await whether restrictions would be eased up.

The All Saint’s Day (Nov. 1) and All Soul’s Day (Nov. 2) celebrations are, for obvious reasons, always associated with themes of mortality and morbidity even as only Nov. 1 is a non-working holiday.

In law, honoring the dead is also being emphasized.

First, as a rule, a human corpse is not considered “property”.  Simple reasons of decency dictate this rule. Pursuant to the ruling in the en banc case of Valino v. Adriano (G.R. No. 182894, April 22, 2014), a dead person’s body is outside the commerce of man. It cannot be the subject of contracts or agreements as no person can “own” a cadaver and decide on its disposition uninhibitedly. Nevertheless, there may be some quasi-property rights that may be exercised over the body of a dead person. This quasi-property right involves the duty of those obliged to bury the dead that allows them to take possession of the body for burial purposes and decide where it will be laid to rest to be fondly remembered, or to move it to another where the memory of the dead person may forever be better cherished. The Supreme Court had emphasized that “this is a family right. There can be no doubt that persons having this right may recover the corpse from third persons”.

Too, R.A. No. 7170, as amended by R.A. No. 7885, or the “Organ Donation Act of 1991”, allows a person who is at least eighteen (18) years of age and of sound mind, to give by way of legacy, which is to take effect after their death, all or part of his/ her body for such purposes as medical or dental education, research, advancement of medical or dental science, therapy or transplantation, among others. Consequently, the legatees or donees of human bodies or parts thereof may, in effect, be considered as owners and/or possessors of the same pursuant to this law. In a sense, the Organ Donation Act somehow considers human bodies or parts thereof as susceptible to appropriation (through donation or by way of legacy in a will) but only in the instances specified in the law.

Second, to provide guidelines on who among the dead person’s relatives must be given preference in deciding for the funeral, Article 305 of the New Civil Code provides for “the duty and the right to make arrangements for the funeral of a relative”.  This “shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall be preferred”.

The order of priority as to who can decide on the details of the wake and burial arrangements of a relative devolves on the following persons and in the order laid down in Article 199 of the Family Code in tandem with Article 305 of the Civil Code:

• Spouse of the deceased (must be a legally married spouse, not just a live-in partner);
• Descendants in the nearest degree (children or grandchildren) of the dead;
• Ascendants in the nearest degree of the dead; and,
• Brothers and sisters of the deceased.

Among brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have the right.

Third and equally important, Article 309 of the Civil Code protects the sensitivities of the grieving family during their period of mourning by stating that: “Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral”. 
Relatedly, it was concluded that “The Civil Code provision under Article 309 on showing ‘disrespect to the dead’ as a ground for the family of the deceased to recover moral and material damages, being under the title of Funerals, obviously envisions the commission of the disrespect during the period of mourning over the demise of the deceased or on the occasion of the funeral of the mortal remains of the deceased”. (Tabuada et al., v. Tabuada et. al, G.R. No. 196510, September 12, 2018). 

Thus, honoring a dead person during the wake and funeral necessarily means showing respect to the life that he or she once lived. It is also a way of sympathizing with the family members who are left behind to deal with a gaping hole in their life caused by the loss of their loved one. But not for long, as everyone has the same final destination no matter how many legs one’s journey in this lifetime may have.

In the end, according to Hemingway, for whom is it that the bell tolls?

It tolls for everyone.

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).