Human Rights Dialogue (1994–2005): Series 2, No. 2 (Spring 2000): Litigating Human Rights: Promise v. Perils: Articles: Waiting for Justice in the Marcos Litigation

Apr 6, 2000

When the human rights case against former Philippine president Ferdinand Marcos was filed in 1986 before the Hawaii Federal District Court, none of the victim-claimants thought it would succeed. Nor did we think that it would take so long, or create more heartaches and pain.

We were not in this for the money. Most of us supported the case for the promise of justice a successful prosecution held. We were satisfied on September 22, 1992, when the jury issued a guilty verdict against Marcos for the human rights crimes of forced disappearance, summary execution, and torture of some 10,000 Filipinos. The Marcos Estate was ordered to pay US$1.97 billion as compensatory and exemplary damages.

However, the pending monetary reward introduced an unexpected complication into our struggle. Cracks began to appear within the hitherto united ranks of human rights organizations behind the class suit even as the Marcos family, the Swiss banks, and the Philippine government tried new maneuvers to offset the effects of the verdict.

The Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya, or Society of Ex-Detainees against Detention and for Amnesty (SELDA), together with other human rights organizations, played a major role in initiating the class suit. Things began to go awry after the 1992 verdict, when a few SELDA leaders with connections to the underground Communist Party of the Philippines sought sole control of the determination and delivery of the compensation due to the victims. They made an attempt to replace lead counsel Robert Swift and gain power of attorney to represent the claimants in negotiations with Imelda Marcos, the widow of the dictator. SELDA members who disagreed with these tactics were forced to leave the organization. Ultimately, the U.S. District Court prohibited any negotiations that were not under the direction of the lead counsel.

In its quest for control, SELDA also attempted to prevent the formation of an organization composed solely of Marcos human rights claimants, but failed. Claimants 1081, of which I am currently the secretary-general, held its first assembly in October 1994. At present, we have more than 3,000 members, or one-third of the overall number in the class suit. Although SELDA is composed of former political detainees under Marcos and other Philippine leaders, only a few hundred people are Marcos torture victims and thus eligible claimants. Because Claimants 1081 is the largest organized group of Marcos class suit members, and composed exclusively of them, we are effective in representing and coordinating claimants with the case counsels as well as with the human rights community. We consult with other class members outside of Claimants 1081, in regional meetings and in regular bimonthly meetings held in Manila. In addition, we frequently gather with Attorney Swift and his Filipino co-counsels, and in turn, the court or counsel regularly communicates with all class members by mail.

Besides SELDA, others have sought to organize and influence the Marcos human rights victims. Some politicians, NGO leaders, local lawyers, underground rebels, and even criminal elements have tried to lure the claimants with assertions that they have initiated and won the judgment against Marcos or by presenting themselves as having insider knowledge of the compensation distribution process. In some cases, they have then offered to “help” the claimant get his or her share of the damages with pro-bono services, power of attorney, or similar schemes. These unscrupulous actors do so in order to exploit the widespread Filipino principle of utang-loob, or honoring social debt. They thus position themselves for a share of the monetary rewards from those claimants who accept the bogus offers and mistakenly believe themselves obliged to repay those who seemingly assisted them.

Interference of this kind has contributed to a split among the ranks of human rights advocates over whether a settlement agreement of US$150 million between the Marcos Estate and the claimants is enough. The 1992 court award of US$1.97 billion was based on identified Marcos assets. However, by the time Imelda Marcos’s appeal was denied and the decision became final and executory in 1997, the Philippine state had already laid claim to or spent much of the money. Anticipating this, Attorney Swift launched negotiations for the victim-claimants to receive a portion of the funds in 1995. Those who are against a settlement fault the lead counsel for not seeking the entire US$1.97 billion award. They claim that such a small payment allows the Marcoses to portray the settlement agreement as “proof” of the dictator’s innocence.

Claimants 1081 advances the other side of the debate. Our position is that the 1992 guilty verdict rendered basic justice to the victims. The damages awarded enhance the overall sense of justice, but primarily provide a modicum of compensation to the victims for their losses. Rather than seek the maximum possible reward, Claimants 1081 believes that we should adopt the course of action that has the greatest rehabilitative impact on the lives of the victims. After years of litigation, more than a hundred claimants have already died without seeing the end result. Many others are weak, ailing, or elderly. Taking the settlement would mean that we would no longer have to wait. It represents the best course of action considering our dwindling resources and formidable opposition.

Illusionary promises, backstabbing, turnarounds, and intrigues prevailed in the lengthy negotiations between the Marcos family, Swiss banks, the Philippine government, Attorney Swift on behalf of the claimants, SELDA, and some other groups. Finally, on April 29, 1999, the Hawaii Federal District Court approved the settlement agreement with the consent of more than 8,500 claimants against the opposition of only 83 claimants: The Marcos Estate will pay US$150 million to 9,536 Marcos victims as compensatory damages. Although the details are not yet final, the least severe category of torture victim will likely be entitled to a minimum of PhP480,000 (US$ 12,000), an amount sufficient to buy a few hectares of agricultural land, build a modest house, and buy a few carabao (work animals) and farm implements. When one considers that more than 90 percent of the claimants are peasants from rural areas, the reward becomes significant.

Yet, even with the settlement, it is the unjust fate of the Marcos human rights victims that we must continue to wait. Although there is agreement among all parties, including the Philippine government, the case has been bogged down once again. The Sandigangbayan, the ombudsman court, has prevented the transfer of the money from identified Marcos Swiss assets to the Hawaii court on the basis of pre-existing laws that place restrictions on the distribution of state funds illegally obtained.

Over the past 14 years, the case has proved too complicated and has been burdened with numerous setbacks. Still, we are proud that it is a landmark in the prosecution of dictators and other gross human rights violators. Many of the Marcos victims or their families, including myself, had long ago embraced human rights work because of our harrowing experience under the dictator. The case, framed in human rights terms, triumphed over the traditional “act of state” defense and Marcos’s attempts to hide behind the cloak of sovereignty. We would like to think that we have inspired others around the world to seek justice through human rights litigation and other available legal processes.

However, the Marcos litigation also demonstrates that human rights law and international jurisdiction need strengthening: The authority and procedures for the prosecution of human rights cases must be integrated into international agreements and national laws. Our case would have been greatly facilitated had international bodies, such as a strong International Criminal Court, been in place.

Moreover, our experience illustrates that the interests of the victims do not always coincide with those of the advocates who speak on their behalf. Advocacy groups should be encouraged to initiate and support human rights litigation. Claimants 1081 would not exist had other human rights organizations not laid the groundwork for our fight, nor would we have succeeded without ongoing external assistance in legal research, media campaigns, and fundraising. But when victims of human rights abuse have organized so that they are able to speak on their own behalf and make their own decisions in the litigation process, external actors should step aside, respect the autonomy of the victims, and not create additional delays in the delivery of justice.

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