PH failed transitional justice project (so far)
With Ferdinand Marcos Jr’s. inauguration looming over our heads, it is all too easy to forget that we are still amidst a drug war. And while I have long awaited the end of the Duterte presidency, suffice it to say that a Marcos redux is not what I had in mind. It’s out with the bad and in with the worse!
Alas, where did we go wrong? A big question no doubt, the answer for which likely lies in the little-known albeit increasingly popular field of “transitional justice.”
Transitional justice provides for a “full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses.” At its core lies five processes: (i) the justice process, on the need for accountability; (ii) the truth process, and the obligation to investigate past atrocities; (iii) the reparations process, in order to give redress to victims; (iv) the institutional reform process, which ensures nonrepetition or nonrecurrence of past atrocities, and (v) the memorialization process, recognizing the role of memory policies in remembering and thus avoiding the repetition of grave violations of human rights.
Having read a graduate course in transitional justice under the tutelage of Prof. Juan Mendez — the former United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — I came to the unhappy realization that, of these five processes, the Philippine redemocratization project has focused only on two.
The first is institutional reform by way of constitutional change. The drafters of the 1987 Constitution, keeping in mind the dictatorship they replaced, enshrined elaborate checks and balances and a strong Bill of Rights in Philippine constitutional order.
The second is reparations. In 2012, Republic Act No. 10368 established the Human Rights Victims’ Claims Board and the Human Rights Violations Victims’ Memorial Commission, responsible for the memorialization of victims of the Marcos regime.
(Now, some might argue that the Presidential Commission on Good Government is a truth mechanism. They would be mistaken. The commission’s mandate concerned asset recovery rather than fact-finding investigations on human rights violations.)
And that about sums up the Philippines’ post-dictatorship transitional justice project: the Constitution of 1987 and a reparations mechanism two decades after the fact. Neither a single conviction for the Marcosian atrocities nor a memorial commemorating the victims thereof has come to being. Worse, the Philippine government itself has been complicit in revising history; allowing for the dictator Marcos Sr.’s burial in the Libingan ng mga Bayani—the hero’s cemetery. At the fall of the gavel, the hero-maker was given a hero’s burial.
To the technocrats, the solution is simple: improve the legal order. They miss the point entirely.
The law is not the solution. On the contrary, it was part of the problem. The Philippines’ transitional justice experiment was grossly inadequate precisely because it focused too narrowly on legal reform, as if constitutional change would naturally translate to a felt difference. Our legal formalist tendencies blind us from realizing that the law alone will not suffice.
Make no mistake, it is never too late for the Philippines’ transition to justice. But should we hope to achieve it, may it be from the Dutertian drug war or the Marcosian past (and soon-to-be-present), we will need to realize that it will take much more than just laws and legal fictions. We will need to bridge the very real gap between legal norms and social mores.
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