I wrote many years back that, for the martial law torture victims, the “unkindest cut of all” is not in being forgotten but in being misunderstood. The other day, they suffered another legal setback, in yet another instance of foreign courts misunderstanding the role of the extraterritorial adjudication of human rights abuses.
The US court returned the case to us because it lay “within the province of Philippine national sovereignty.” Yet why did the victims turn to American courts in the first place? Because our local courts were loath to act on the victims’ desperate pleas.
In 1995, the human rights victims won $2 billion in damages in a Honolulu court. In that case, 9,500 human rights victims filed suit against the Marcos estate, citing a leading 1980 American case, Filartiga v. Peña Irala, wherein US courts were allowed to try human rights violations committed abroad even when both the torturer and the victim were foreigners (or in legalese, without any jurisdictional link to the forum). To this day, that judgment is largely unenforced.
That is why the victims recently tried to collect some $35 million held in a US bank in the name of a dummy Panamanian corporation formed by the Marcoses in 1972 (the year martial law was proclaimed). However, they were opposed by the Philippine government, which claimed the sum for itself. Our own Sandiganbayan had earlier found that the moneys were ill-gotten wealth purloined by the Marcoses, and declared them forfeited in favor of the Philippine government.
The Philippine Supreme Court has also declared that all the ill-gotten wealth “supposedly originated from the government itself [and to] all intents and purposes belong to the people [and] must be returned to the public treasury.” Thus we encounter the first irony: The human rights victims are pitted against the Filipino people and the government that represents them.
The second irony is that these funds, once recovered, are earmarked for agrarian reform. This will pit the human rights victims against the Filipino peasantry. Each group holds a powerful claim to justice: the peasants to the land they till, the torture victims to the monetary compensation for their suffering. Yet this tug-of-war is by no means inevitable or necessary. Indeed, the two groups should be natural allies because the activists are fighting anyway for peasants’ rights, among their many causes. What sets them against one another? It is actually Philippine law that forces them to claim against the same pot of money. In other words, we could have structured it differently so that it’s not a zero-sum game.
This was not the only time that the victims’ pleas were frustrated by the Philippine government. When the victims tried for “recognition and enforcement of foreign judgment” and tried to enforce the Honolulu award in a Philippine court, our local courts mechanically and unsympathetically levied a stiff filing fee; after all, the filing fee is computed on the basis of the award sought to be enforced, in this case, $2 billion. The martial law victims had to go all the way to the United Nations Human Rights Committee, which sustained the victims and held that the local courts had thereby denied them an effective remedy under Philippine law.
The third irony is that, the last time some $384 million was transferred by the Swiss to the Philippine government, it ended up being used in the 2004 “fertilizer fund scam” to fund the presidential campaign of Gloria Macapagal-Arroyo. The foreign court thought it was doing the right thing giving back the money to the Philippine government.
It is significant that today, the leader of the human rights claimants is no less than the chair of the Commission on Human Rights, Loretta Ann Rosales. She said: “I feel rather sad that a historical judgment won for victims of martial law … should be resisted by purely legal arguments, blind to the spirit of the historical judgment: Compensate those who fought for the freedom we enjoy today.”
The final irony for “those who fought for the freedom we enjoy today” is that it is that freedom that has allowed our courts to look the other way. Not a single Philippine court has ever dared hold Ferdinand Marcos liable for the disappearances, torture and arrests under his regime. This has forced his victims to turn to American courts for justice. It has taken a Honolulu court to render them the justice that Philippine courts have failed to give. And now our courts, called upon merely to enforce a judgment that foreign courts have done them the favor of making, have faltered and balked.
More than a quarter-century after the restoration of democracy, it is time for a political solution in the form of a compensation bill passed by Congress. Some have raised the issue of how to rectify injustices suffered in the distant past. Remember that victims of the wartime internment of Japanese-Americans in World War II were compensated only under President Bill Clinton, a good 50 years later. The passage of time should not be a problem.
Another “distant past” issue arises when the actual human rights victim has died and the claimant is usually another family member. To start with, a good number of the actual sufferers are still alive and indeed are precisely in the twilight of their years when they direly need the award. But even otherwise, the typical children of the human rights victims rightly deserve to partake of the award since they, too, have suffered a part of the ordeal that their parents endured.
The recent setback before US courts must prod our Congress to finally pass the compensation bill to bring closure to this dark chapter in our nation’s story.