Reparation for Martial Law Victims - Failure of State Duty Continues
Volume 20 Number 3
Saturday, 30 September 2006 00:00

by Daniel Conejar

Waiting in vain sadly describes the more than ten thousand martial law victims of whom majority suffer from poverty, disability, trauma, and old age.  In fact, some lead plaintiffs in the historic class suit have already died. In 1995, they won a class suit against the late dictator Ferdinand Marcos. The dictator was found guilty of   summary executions, torture, arrest & detention and disappearances (STADDs) of dissidents and mostly innocent civilians during his more than 20 years reign of terror under martial law (ML).

For a background, the Marcoses and their cohorts were extricated from Malacanang when millions of Filipinos rose up in a peaceful revolution known as People Power in 1986. Accompanied by US troops, they fled to Hawaii with their ill-gotten loot. For that reason, they were sued, invoking the Aliens Tort Act under US civil law. Thus,  on April 7, 1986,  a class suit was filed against Marcos in the Federal District Court of Honolulu,  Hawaii with Atty. Robert Swift as lead counsel. Prior to filing, the Task Force Detainees of the Philippines (TFDP), painstakingly, sought for the human rights violation victims, convinced them and documented their cases. When the case was heard Marcos was already dead but frozen and unburied because his wife Imelda wanted him to be interred in the “Libingan ng mga Bayani” among other presidents and heroes of the Republic. The case was won in the Honolulu court which awarded some $US1.9 billion damages to the human rights victims and ordered a worldwide freeze on Marcos assets so that they could be located and recovered. However, the Swiss banks held most of the Marcos deposits until the mid 1990s when a deal was reached with the Philippines government to release only the amount of more than $US350 million. The said amount was then transferred to an escrow account in the Philippine National Bank until now.

Two decades after - protracted litigation hemmed in by splintering groups of claimants, squabbling of interest groups, dilly-dally in congress to enact a compensation bill, breakdown of the peace talk and now, overcome by events that once again bring back the shadow of martial law - the state duty to reparation remains a vital issue to appease the claimants and move the country forward free from the horrors of its past.

After all, the class suit is a landmark on human rights jurisprudence since it convicted a notorious human rights violator and awarded compensation to the victims, albeit, it was won in a foreign court.  The result has inspired various regional and international movements for human rights to invoke such precedent-setting case and set up justice mechanisms whereby anybody could be tried for human rights violations.

The compensation for the victims is now more than “US $4 billion with interest as appeals drag on. None of the plaintiffs have received money, and no other lawsuits have yielded payout awards ” 2To know that the victims who filed the class suit are but few  compared to the actual number of victims of human rights during the period of martial law and the growing number of summary executions (Human rights groups list some 700 political executions) and torture in the country, one can easily be swayed to believe, seeking justice and reparations for victims are far off and maybe impossible to attain in the country.

In July 2006, Congress was able to approve, on its third and final reading, a bill granting P10 billion in compensation for human rights victims during the martial law years while the rest of the remaining amount will be set aside for the Comprehensive Agrarian Reform Program.   However, implementing rules and regulation such as categorization for exact amount of compensation for claimants  may again take some time to be realized. Claimants cling hopefully on this legislation for their compensation but doubt whether they can receive it or it would be used up for their lawyers who, acting timely with Congress (contrary to what was agreed before of only 10% lawyers' fee) demanded in advance 30% of the total amount to be awarded ahead of the actual distribution of whatever is due the class suit claimants. This concern is contained in a motion entitled “Opposition to Counsel's Motion for Interim Award of 30% of the Fund” submitted to District Court in Hawaii last June 15, 2006 by many of the claimants.

While the debate lingers on whether a decision inked on foreign soil can be implemented in its country of origin, intermediate NGOs' intervention and  various controversy led many to doubt if the recovered money for compensation are indeed still available.

The present administration has been blamed that part of it, if not most, was used  in  the 2004 Election. We have the fertilizer scam which source is believed to come from the compensation fund. Until now, the alleged mastermind, the former undersecretary of agriculture, Jocelyn “Jocjoc” Bolante is not yet even under prosecution.  If the allegation of this sort is true, the compensation fund is not only denied for the claimants but again used to perpetrate human rights violations.

And there are various consenting opinions on how the funds will be spent such as to shell out some for other victims of human rights which were not included or failed the deadline for the case filing, and maybe to include those victims of the succeeding administrations after the dictator.  And finally, how much will go to the Commission on Human Rights to augment its meager budget for the documentation of human rights violations.

Some may have already lost hope that they have totally abandoned the idea of being compensated in the end while many remain hopeful especially those with much of the stigma and suffering with disability.

Too much focus on compensation

One obligation of the state that follows from acts of human rights violation is to provide compensation to the victims.  It must ensure that it can enforce awards such as compensation for the victims irrespective of where justice is obtained in any proper court of law. Section 18 (6) of the Constitution under the powers of the Commission on Human Rights states that “effective measures to promote human rights and to provide for compensation of victims of violations of human rights, or their families” shall be recommended to Congress by the Commission. Section 12, paragraph 4 of the Bill Rights provides “compensation to and rehabilitation of victims of torture or similar practices, and their families”.

These provisions in the Constitution, when interpreted plainly, include government responsibility and accountability in the truest meaning of reparation for victims arising from disability and traumatic experiences of victims.

But even with compensation alone our government has failed to act unlike in Chile, Argentina, Egypt and India where hundreds of rights victims especially victims of torture have been compensated by their governments for the past decade. Unfortunately a drawback in India is the agreement between the National Human Rights Commission and the government that monetary compensation for victims must be the sole obligation of individual/s responsible. This kind of ruling is what we don't want our government to follow.

The compensation for the ML victims in the Philippines is long overdue.  The fact that the commission of the violations is not at present does not forfeit the duty of the present administration to compensate the ML victims as “the duty to provide reparations rests with the state, not a particular government”.

As early as the first administration after Marcos, a separate trust fund for the ML victims should have been put up for compensation rather than wait for an act of Congress on how compensation fund should be appropriated. Year after year if the trust fund was considered in the general budget, one could only speculate how it could appease the ML victims and demonstrate the sincerity of the government.

The right course should have been -

Foreign courts need to supplement local courts if attainment of justice is impossible in the latter. This is what happened in the case of the martial law victims that was promulgated in Hawaii. But as soon as our justice system recovered after the EDSA revolution from its co-optation during the martial law years, it should have taken in cases, aside from Marcos, against other known perpetrators during the martial law who have evaded justice. The defection of some from the dictatorship should have not been considered a safe passage to the transitional government and immunity from justice but at least, a demand for some kind of truth-telling and atonement. However, some even ran and won for president in the case of Fidel V. Ramos and others like Enrile and Lacson occupied lofty positions in the government service. There was a failure in prosecution of the henchmen of Marcos and in the case of the class suit failure to comply with a court decision.

Impunity has never been addressed seriously in the country. The Philippine Commission on Human Rights has been too reserve to proclaim that the late dictator has indeed committed human rights violations and continues to be constrained by its mandate and timorousness. “Pursuing justice through the legal processes even in the face of extra-judicial killings and various harassments deserves solidarity from the Commission on Human Rights till the resolution of such cases. It is hard enough for poor, aggrieved parties to file charges against military or police personnel, but shortcomings of CHR officers and personnel can both erode the courage of people and human rights defenders, and deepen the roots of impunity.” 3 These circumstances discourage many to file complaints of human rights violations to the CHR. This is further supplemented by the PCGG failure to advance cases against the Marcoses for ill-gotten wealth and to recover, freeze or forfeit their properties and deposits. As a result, the Marcoses, literally, can do whatever they want in the country enjoying the best of privileges and escape culpability by the lackluster performance of the CHR and other concerned government agencies.    

The Right to Reparation

Article 8 of the Universal Declaration of Human Rights (UDHR) that states “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law” has been interpreted more clearly below:

“Each State party to the present Covenant undertakes: a) To ensure that any person whose rights and freedoms are herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.” 4

A complete package of reparation (see illustration), as many fail to grasp, does not only concern compensation alone, it includes  individual and general measures that will guarantee truth, justice and non-recurrence of the act of violations. Individually, victims, remaining dependents or relatives are entitled to, other than compensation, restitution and rehabilitation.

Compensation encompasses the duty of the perpetrator and of the present state to satisfy the monetary reward for the victim due to mental or physical injury and legal aid costs. Restitution means reinstatement of the victim to his or her previous position or status in society before the act of violation was committed. “In cases where the government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.”5 While rehabilitation should take on the victim's medical needs, psychological and psychiatric treatment.  

On the other hand, general measures should first be premised on the principles and concepts of state accountability and responsibility for finding and preserving the truth and non-repetition of crimes committed.

Prime importance is on the inalienable right to truth: What really happened? Why is it committed? How do the victim and perpetrator feel about it? Then and only when healing and deeper understanding of the past event can allow us to move on to the right course of development.

Everyone has the inalienable right to know the truth about past events and the circumstances and reasons whereby systematic and gross violations of human rights are committed. Commemoration activities and establishment of landmarks, preservation and access to archives bearing witness to violations are essential to freshen up memories to avoid any recurrence of violations in the future. 6

In the situation wherein the state is incapable of ensuring the right to the truth, extra-judicial Commissions for Truth or Inquiry is necessary as prerequisite, supposedly, to democratic transition. “There are many goals that maybe attached to these truth bodies - from national reconciliation to advancing healing for individual victims, from ending impunity to putting in place protections to prevent the repetition of abuses in the future”.7 Other countries such as Chile, South Africa, Uruguay, Zimbabwe , etc.,  have put up truth commissions to understand the dictatorship that brought suffering to their people. Argentina and South Korea even imprisoned their dictators and in the case of Romania put hers to execution.

But this has not happened in the Philippines. To ferret out the truth from behind the Arroyo alleged cheating, former vice president, Teofisto Guingona's proposal for People's Tribunal has not even gained a ripple of support. We are a nation which easily forgets the past and thus cannot condemn strongly any resurgence of the past atrocities. Conrado de Quiros oft-repeated exhortation is instructive that “those that do not learn the lessons of history are condemned to repeat them”.

Above all these requirements to reparation, the Joinet Principle8 contains the following general principles on the right to reparation.

The Joinet Principles: the right to reparation

Principle 33: Rights and duties arising out of the obligation to make reparation. Any human right violation gives rise to reparation on the part of the victim or his/her beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to seek redress from the perpetrator.

Principle 34: Reparation procedures. All victims shall have access to a readily available, prompt and effective remedy in the form of criminal, civil, administrative or disciplinary proceedings...In exercising this right, they shall be afforded protection against intimidation and reprisals. Exercise of the right to reparation includes access to the applicable international procedures.

Principle 35: Publicizing reparation procedures. Ad hoc procedures enabling victims to exercise their rights to reparation should be given the widest possible publicity by private as well as public communication media. Such dissemination should take place both within and outside the country, including thorugh consular services, particularly in countries to which large numbers of victims have been forced into exile.

Principle 36: Scope of the right to reparation. The right to reparation shall cover alinjuries suffered by the victim; it shall include individual measures concerning the right to restitution, compensation and rehabilitation, and general measure of satisfaction...In the case of forced disappearances, when the fate of the disappeared person has become known, the person's family has the imprescriptible right to be informed thereof and, in any event of decease, the person's body must be returned to the family as soon as it has been identified, whether the perpetrators have been identified, prosecuted or tried or not.   

These principles are categorized into three, namely: “the right to know, containing principles on the inalienable right to know the truth about past human rights violation, principles on extra-judicial commissions of inquiry and principles on the preservation of and access to information regarding human rights violations; the right to justice, containing principles on the distribution of (criminal) jurisdiction between national, foreign and international courts; and the right to reparation containing principles on reparation procedures, the scope of the right to reparation and principles on non-recurrence of violations”9

To understand fully the widest range of reparation, compensation may come only  secondary or less as a concern.  What we need in order to move forward is truth, justice and freedom from the clutches of impunity.

State Challenge

The state which carries on the responsibility of reparation to victims must manifest its political will to seek for the truth, combat impunity, fight corruption and demonstrate sincerity for democratic reforms.         

Sadly, it has no interest for truth rather it maneuvers to hide the truth from the people using Congress and Executive orders as shields by playing protector to Garcillano's election scandal, Jocelyn Bolante charged in connection with the alleged use of P728 million in fertilizer funds and now PCGG officers who are involved in the recent Philcomsat Holdings Corporation anomaly. The truth is always swept under the rug to pave the way for urgent political and economic reforms.

During the last commemoration activity of the EDSA peaceful revolution, most of us  have become ambivalent in our attitude towards it. Our interpretation of its significance seems to drift away from each other and we tend to interpret it in our own way than one with everybody. This is one consequence of not knowing what was the real truth behind it and thus lacking national consciousness about it.  

More than thirty years after martial law the thirst for justice has remained a daunting quest. Since martial law not a single human rights violator has ever served sentence and worst not even one is made to admit or in a voluntary manner, admit publicly that he or she has committed crimes against the Filipino people. Without which there could be no effective remedy against the immobilizing effects of impunity. Victims of torture and summary execution continue to shy away from justice.  “The CHR should be more determined and thorough in its investigations and in following up the resolution of cases to break impunity. It could, for example, put up a Commission Task Force for Extrajudicial Executions which would sift through the cases of “salvagings” and concentrate on the few which promise a high percentage of prosecution and conviction of the perpetrators.” 10

Delaying the release of the compensation package for the martial law victims is plundering the Filipino people twice. As we all know the recovered wealth of the Marcoses is now again subject to corruption charges. Not only that a decision for the claimants is in a foreign land is a landmark, we recognize the same the character of the compensation bill recently passed by Congress. It is first whereby our legislative body formally recognizes its responsibility for human rights violations. We only hope, it would not be watered down or delayed any longer by the lack of political will of the executive for purpose other than what it is intended for. “This bill is long overdue. The victims have waited far too long and have endured extended legal battles so there is no more reason for the government to further delay their compensation”, said Etta Rosales.

Unfortunately, we have a very weak state as far as making the international human rights concepts and principles its framework in decision-making and in shaping up its development policies. we once against face the visage of martial rule with the present administration. Pre-emptive calibrated response (CPR), EO 464, EO 1017 and pending anti-terror bill bring back the memories of a repressive regime. Thus, we have a President who continues to rule behind the cloud of illegitimacy and wallows in the blood of the victims of human rights violations.

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