Commentary

A short memory

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The Human Rights Victims Reparation and Recognition Act of 2013 is indeed a milestone. President Aquino, legislators and rights abuse victims are right to celebrate it.

But missing from the speeches was any recognition of the role played by the lawyers who won a judgment against Ferdinand Marcos in the Hawaii Federal Court for 9,539 Filipinos. The new law specifically states a conclusive presumption that the 9,539 are indeed martial law victims. Without the historical and hard-fought result in the Hawaii court, the law would never have been considered, much less passed.

When I first arrived in Manila in March 1986, President Cory Aquino was consolidating her powers after declaring a revolutionary government. The express purpose of my trip was to look into whether a human rights lawsuit could be organized against Marcos, then already in Hawaii. I met with former senator Jose W. Diokno and noted Constitutional Convention delegate Jose Mari Velez to discuss a lawsuit. Velez expressed interest and set up a meeting with the organizers and members of the Samahan ng mga Ex-Detainees Laban sa Detensyon at Amnestiya. I collected information from a dozen victims of torture and relatives of summary execution and disappearance victims. Surprising to me was the information on how widespread the abuses were and the number of victims documented by Filipino human rights groups.

On the flight home to Philadelphia, I decided to frame a complaint as a class action on behalf of all Filipinos tortured, summarily executed, or disappeared during martial law.  The world’s first human rights class action was filed in early April 1986. A class action based on human rights violations was unprecedented in world jurisprudence. The case utilized a little-known law in the United States that permits non-Americans to sue non-Americans for rights violations.

Marcos was served the complaint in Hawaii. He vigorously opposed the case, and the judge initially dismissed it on the ground that it violated the act of state doctrine. Three years later, the Court of Appeals reversed the dismissal. A new judge, Manuel Real, was named to try the case. He certified a class of Filipino victims of human rights abuses. With the help of Filipino rights groups, notice of the class action in multiple languages and dialects was circulated and over 10,000 claim forms were submitted.

After Marcos died in September 1989, his widow and son engaged highly skilled lawyers for their defense. Despite the case’s novelty and difficult issues of proof, a jury ruled for the class and awarded almost $2 billion in compensatory and exemplary damages in 1995. A year later, the Court of Appeals affirmed the judgment. Despite a futile attempt to appeal the case to the US Supreme Court, it became final.

Even before the judgment was entered, the Philippine government schemed to prevent any collection on it. President Fidel Ramos directed an involuntary probate of the Marcos estate in a Philippine court, where it is still pending, so that the class members would have to prove their claims anew. After the Hawaii court entered an injunction against the Marcoses, Swiss banks and the Philippine government to prevent dissipation of the estate assets, the Philippine Solicitor General obtained a temporary restraining order to prevent the victims from testifying in the case and an order to hold me in contempt of court. When the order was overturned and dissolved, the Philippine Senate passed a resolution to declare me  persona  non  grata. The Swiss government joined the fray in the United States to defend its banks and argued that the case in Hawaii should be dismissed. Even the US justice department, much to its discredit, sought the case’s dismissal.

It was a singular feat of advocacy that I and my cocounsel were able to preserve the case amid the hurdles raised by the Marcoses and the two governments. The legal rulings pioneered human rights jurisprudence throughout the world. Decisions in the case have been cited in hundreds of other cases, articles, and textbooks. Even the British House of Lords discussed the case in its Pinochet decision. The architecture of the case was used in the highly successful Holocaust cases filed against Swiss, German and Austrian entities that profited from Nazi abuses during World War II.

The work of the lawyers for the victims continues. The Compensation Act of 2013 addresses only, among other items, the liability of the republic, not Marcos, for human rights abuses. The victims now have a second judgment to collect $353.6 million from the Marcos estate, Rep. Imelda Marcos and Sen. Ferdinand Marcos Jr. Not surprisingly, the hostility of the Philippine government to the collection on the judgment continues.

While Philippine and Swiss diplomats recently touted the Compensation Act as their vision and success, they failed to mention their governments’ unbridled opposition to the class collecting on the judgment. The Philippine government has paid more than $10 million to the lawyers of the Presidential Commission on Good Government to deny the victims any recovery on the judgment. Philippine courts have yet to recognize the historic Hawaii judgment after more than 15 years of litigation. The United Nations Human Rights Committee ruled in 2007 that the Philippines violated international law in denying the rights of the class members. But far from helping rights abuse victims, the UN Convention Against Corruption was intended to ensure that successor governments could grab all property of deposed dictators before the victims could claim it. The convention is a chilling reminder that most governments do not back compensation to victims.

Victims of Marcos-era atrocities belonging to the class victims should have received compensation in 1999 when I signed a settlement agreement with President Joseph Estrada and Imelda Marcos. The victims and their families were to receive $150 million, until the Sandiganbayan declared the settlement unconstitutional. The $250 million appropriated for the Compensation Act is the original $150 million, plus 14 years interest. But in the intervening years, the victims died and their children went uneducated and undernourished. Delay has resulted in more injustice.

The challenge now is credible distribution. I faced that same issue when I distributed $1,000 to each victim or heir in 2011. The first hurdle is identifying the correct person to be paid since about 80 percent of the 9,539 are dead. The second is quantifying the amount to be paid to torture victims. Claims by nonclass members will be difficult and time-consuming to process because all claims are more than 27 years old. What is the standard of proof needed? Will the PCGG accept hearsay evidence? What standard will be applied to disappearance cases? Will the military open its records? Will Filipino lawyers view this as an opportunity to receive money for little work?

And what about the issue of corruption? Will individuals contrive claims in order to receive compensation? Will impersonators obtain false ID? Will letters to claimants be stolen in the mail? Since most claimants do not have bank accounts, how will they receive payment? Again: Will Filipino lawyers view this as an opportunity to receive money for minimal work?

Yes, the Compensation Act is a milestone. After almost three decades of hostility and indifference to the victims, it is long overdue. But without the largely uncompensated effort of lawyers to obtain a judgment for the victims, it would never have happened. It is said that Filipinos have a short memory. It is sad that in the euphoria over the Compensation Act, the nation forgot the group of American and Filipino lawyers who fought so long and hard for the victims.

Robert A. Swift is the lead counsel of the Marcos Human Rights Litigation MDL No. 840 pending at the Hawaii Federal Court.

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