POSTSCRIPT / February 10, 2005 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Who are torture victims? How much will each get?

BALANCING ACT: Comes now Press Secretary Ignacio Bunye assuring all and sundry: “The human rights victims will get their fair share, but it must be emphasized that the bulk of the proceeds will go to the land reform program.”

Bunye is talking of the $683 million recovered from Marcos secret deposits and added to the agrarian reform fund. President Arroyo has promised to get P8 billion from it to pay alleged victims of human rights violations of then President Marcos.

President Arroyo wants to play paymaster of Judge Manuel Real of the US district court in Hawaii who had awarded $150 million in damages to 9,539 Filipinos claiming before his court that they were tortured by Marcos.

In issuing his statement, Bunye is playing a balancing act to ward off accusations that his boss the President is taking billions from agrarian reform, a centerpiece government program, just to play PR with the Left.

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PRIOR POINTS: Before they talk on the issue any further, Secretary Bunye and President Arroyo should:

  1. Produce the list of the torture victims that the President intends to indemnify. She cannot talk of paying individuals without knowing who they are.
  2. Explain why each individual on the list is to be paid. There must be a clear, enforceable liability that requires payment from public funds.
  3. Specify how much each claimant is to be paid, and — as the insurance people do it — show how the figure was arrived at. All the 9,539 claimants were not tortured in the same manner and to the same degree that would warrant uniform compensation.
  4. Justify drawing payments from the agrarian reform fund and not from other sources. Money cannot be taken from government funds if what is to be paid is not a liability of the state. The rules are stricter in the case of trust funds.

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WHOSE LIABILITY?: Reading the above four-point list, one realizes that paying the alleged torture victims is no simple matter.

Since the Congress is being called upon by Malacanang to appropriate the money, the legislature would have to address the same points I have listed above.

There are just too many questions that must be answered before a claim for payment could be justified.

For instance, is the Philippine government — under the Arroyo promise of indemnity — going to pay a liability of the government or of the estate of the late President Marcos?

Ilocos Norte Gov. Ferdinand “Bongbong” Marcos Jr. said days ago that paying victims of summary execution, disappearances and torture during the two-decade regime of his father was a government obligation and not of the Marcos estate. What does the administration say to that?

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MARCOS LINK: Although torturing, kidnapping and killing people were/are not among the duties of the President and must therefore be considered personal violations of the perpetrator(s), Bongbong has a point in absolving his father.

To indict Marcos or whoever, it has to be proved that when, say, soldiers or government agents dragged a man from his house, mauled him and dumped him for dead, they did it on his orders. Did Marcos order all those abuses?

Just because they were in uniform or were in the service does not necessarily mean that their every act was performed on orders of their superiors. Some acts may be safely assumed to be on orders, but not all.

Since crimes are generally personal acts, a connection must be established first to implicate others remotely situated on the higher levels of the chain of command. Sometimes such a connection or a conspiracy can be established, sometimes even assumed, but not all the time.

This point alone will whip up a storm of a debate — which just goes to show that it is not that easy to pass a sweeping judgment on 9,539 cases of alleged summary execution, disappearances and torture.

At the very least, there should be a hearing of the charges of human rights violations.

* * *

CLASS LEGISLATION: To simplify or abbreviate the process, do we just conveniently adopt the list of Judge Manuel Real of the Hawaii district court that awarded $150 million to the claimants?

That would not be safe or prudent at all. The US West Coast appeals court’s overturning of Real’s judgment has shown him to be careless with his law and procedure. It would not be safe to blindly take his list of victims and pay each and every one of them.

Did he examine each claim for its merit and determine the value of the correct indemnity, or did he simply dump them into one kettle where everybody lost his identity?

Our Congress could be accused of passing class legislation if it authorized payment from public funds to one group claiming to be victims of human rights violations during the Marcos regime.

That the claimants are a class cannot be denied, because they themselves filed a class suit in Hawaii.

And, as we asked last time, why are we acting as if the Real judgment was the final word on the matter and why are we moving like his sheriff carrying out his controversial order?

Why is the President of this sovereign country acting as a surrogate of a Hawaiian judge who had been shown up by an appeals court?

* * *

WHAT ABOUT OTHERS?: This point of class legislation could raise a storm of protest from other torture victims.

Indeed, why should we compensate only those who claim to have been tortured during the Marcos regime? What about those who were tortured or killed at other times?

Why should anybody tortured during Marcos’ rule have a superior claim to compensation compared to another Filipino tortured during, say, this Arroyo administration?

A missing eye, a broken arm, a brutalized psyche, a rape victim, a dead or vanished member of the family — they are all the same regardless of when or where they were inflicted. All of them cry for justice.

The same problem cropped up in the US when Americans tried to assuage their guilt over the Vietnam War by going all out to honor US veterans of that misadventure in Indochina. Veterans of other wars rose to claim their own rightful place in the esteem of their countrymen and their government.

Once we start with the so-called Marcos torture victims, can we follow through and settle all claims of those similarly situated?

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DEGREE OF HURT: The degree of injury or loss is another contentious point.

Do we slice P8 billion (peso equivalent of the $150 million awarded by Real) from the anemic agrarian reform fund and divide it equally among the 9,539 claimants, some of whom have died during the long wait?

Will the family of a student activist who had been kidnapped and murdered get the same amount as a magazine writer who felt harassed (mental torture?) when her publisher told her to stop writing anti-Marcos articles in their magazine?

Will somebody who was badly bruised during interrogation and whose bodily injuries had healed be given the same compensation as somebody whose eyes had been gouged out by sadistic torturers?

Is one missing finger to be priced the same as a missing leg?

Clearly, there has to be an individual determination of the extent of damage. Who will do this?

* * *

PRESCRIPTION: For the process envisioned by President Arroyo to start, claims must be filed locally. It would be unseemly for the Philippine government to adopt blindly a Hawaii court’s decision rendered wobbly in the review by an appellate court.

So where are claims to be filed, if they are to be filed at all?

Should it be before the Congress so it could determine how much to appropriate and set the guidelines for payment, or before a commission to be created by the President, or with a special court to be designated by the Supreme Court?

Since torture and similar acts are crimes, I think suits must be filed with the courts.

Then the question crops up: If the victims file claims only now, are not the alleged crimes already prescribed 20 years after their alleged commission?

May habol pa ba?

Another question: Can other victims, not necessarily of the Marcos regime, still file claims? My opinion — why not?

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(First published in the Philippine STAR of February 10, 2005)

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