What Cory can teach Noynoy about truth commissions (and what we can learn from elsewhere too)

(The following is written by Ruben Carranza, who once served as one of the commissioners of the Philippines’ Presidential Commission on Good Government (PCGG) — the body tasked to recover the Marcoses’ ill-gotten wealth — under Haydee Yorac. He is now with the New York-based International Center for Transitional Justice. This website (mainly, me) decided to post this “note” — that’s what he called it — after he uploaded  it on his Facebook page and brought me undeserved recognition by tagging me on the note, together with a couple of journalists, a congressman, and a senator, among others. By tagging me, he somewhat implied that he cares about what I think (although that could be a mistake.) In any case, since one good turn deserves another, here is his piece (links of which have not been attached because they are broken). Thanks, sir.)

I meant to write a longer note — partly for friends who know about the work we do on truth commissions at the International Center for Transitional Justice (ICTJ) and partly for colleagues working outside the Philippines whose own questions about President Benigno Aquino’s proposed Truth Commission have ranged from the flippant (“Another one?”) to the concerned (“Is the timing right?”). This is not that longer note, although it is in fact long.

In this note, I only want to clarify a few basic points about truth commissions, both ours as well as those that have been set up elsewhere, some of which are mentioned in this Newsbreak article and some of which are either less known or still the subject of debates among those working in the field of transitional justice.

These answers and notes are grounded on the work we have done at ICTJ — with past and present colleagues from South Africa, Peru, Sierra Leone, Timor Leste, Chile, and other countries where truth commissions have been established or are now being set up — and on my own work in those countries, as well as in the Philippines.

Perhaps this might even lead to a longer note, one that will deal with what President Aquino’s Truth Commission can or cannot do, and what Filipinos should or should not expect from it. But for now, just these short notes and answers —

1. How many truth commissions have there been?

Not that many. I assume that Newsbreak’s article relied on this website’s resources.

But that site, like many other academic or other published material on truth commissions rely significantly on (ICTJ co-founder) Priscilla Hayner’s groundbreaking book “Unspeakable Truths“.

It is a solidly-researched book by a colleague and I’m proud to have helped Priscilla as a resource for its 2nd edition, which just came out.

Priscilla covered forty (40) truth commissions when the book first came out; since then, more commissions — some of them named ‘truth commissions’, others called “truth and reconciliation commissions” (the first one that used ‘reconciliation’ was Chile, I think) — have been set up.

Was the Cory Aquino-created, Sen. Jose Diokno-led (and in which my Chair in the PCGG, Haydee Yorac, was a Commissioner) Presidential Commission on Human Rights (PCHR) a “truth commission”?

The Newsbreak writer may not have realized that when academics writing about transitional justice speak of a Philippine truth commission, they are referring to the PCHR.

Yes, the PCHR never issued a report.

Why? Some insights are in this link, quoting Glenda Ramirez, who did a great paper on truth commissions in the Philippines for NYU, in 2001, that unfortunately is no longer online. I won’t go into that here for now.

2. Do truth commissions work?

The fair question might be: do truth commissions do more than just attempt to seek the truth?

The function of a truth commission, in the frequently-quoted in the TJ field words of Michael Ignatieff* (the historian and Canadian politician — who is an example of how one can be a politician but still be useful as a human being) — is “to narrow the range of permissible lies” about a country’s past.

The new Philippine Justice Secretary cited South Africa’s TRC as a ‘model’ for the new Philippine truth commission; I can’t blame her for not having any other reference point.

The combination of Mandela-worship, Hollywood’s oversimplification of apartheid’s demise (a mixed-race rugby team and Morgan Freeman can only have a happy ending!), and the SA TRC’s focus on the impact of violence under apartheid on individual victims, rather than on what apartheid itself did to all black South Africans — has led to a feel-good picture of the South African truth-seeking experience.

So when Filipinos (and many others elsewhere) cite South Africa as a model for truth commissions, it might be the implicit message of racial harmony and ‘reconciliation’ that the story suggests.

Sadly, the story hasn’t ended.

Since South Africa’s TRC released its report in 2003, no one has actually been prosecuted seriously (let alone successfully) among perpetrators of human rights violations who did not avail of the amnesty-for-truth mechanism that the TRC offered (which is another feature that has skewed perceptions about what truth commissions do).

Despite the magnitude of apartheid-caused crimes, only 20,000 or so victims have been given compensation, not reparations, by the State at the fixed amount of around US$3000 each.

The white-owned and foreign corporations that profited from apartheid have not paid anything back, and most black South Africans remain in the impoverished majority.

Having said that, South Africa’s TRC did open the door to a wider discussion in the country about accountability, justice and reparations — goals that, arguably, can only be reached by standing on a foundation of truth that is not only official, but more importantly, impartial, rigorously-obtained and publicly disseminated and discussed.

3. If not South Africa’s, then what truth commission experience should we look at?

Ours, first of all.

In 1986, just a few days after the Marcos dictatorship was ousted, the first Aquino government created two commissions — one to address human rights violations, the other large-scale corruption — to establish the accountability of the officials of the Marcos dictatorship, beginning with the Marcos family.

This architecture for extracting accountability was, on hindsight and looking at the experiences of countries that have gone through brutal and corrupt dictatorships, a tactically correct decision and, even if unintended, a strategically important step.

The PCGG was created (through Executive Order No. 1) in February 1986 to prosecute Marcos and his cronies for large-scale corruption and to recover their ill-gotten wealth.

A few days later, Executive Order No. 8 was issued, creating a PCHR to investigate civil and political rights violations committed during the Marcos dictatorship, and to recommend the prosecution of perpetrators through the Justice Department.

By simultaneously but separately confronting both sets of crimes committed under and by the Marcos dictatorship, the first Aquino government would be able to not only hold perpetrators accountable for torture, forced disappearances, extrajudicial killings and other human rights violations — it could also remove the economic resources that the same perpetrators and their masterminds in the dictatorship controlled and used to maintain impunity.

Of course, neither Cory Aquino nor Senators Jovito Salonga and Jose Diokno — the first chairs of the PCGG and PCHR, respectively, could have known how fragile their post-dictatorship government was.

The PCHR was eventually transformed into the 1987 Constitution’s Commission on Human Rights, but now apparently without the power to look into pre-1987 Constitution violations.

The PCGG, on the other hand, lived on — but that, of course is another story that I can tell another time.

Chile perhaps?

Now compare this with similar situations elsewhere.

In Chile, two truth commissions were created years apart, the first looking only at killings and disappearances (the Rettig Commission) committed by the Augusto Pinochet regime and then later at torture and detention (the Valech Commission).

Rettig was a former Ambassador in the Salvador Allende government. Valech was a Catholic Bishop.

These commissions did identify victims and led to the creation of reparations programs for them, with health care for human rights victims still a continuing legacy of these commissions.

But they had no power to compel testimony, relying mainly on victim testimony or on security officials who volunteered to testify, and could not even name names of perpetrators.

But the Chilean commissions did not investigate corruption under Pinochet — who had by then created a myth of himself as a ‘clean dictator’.

The myth was only and finally broken a few years ago, when US Congress investigations of money laundering unearthed Pinochet accounts in a number of US banks, some of which eventually created trust funds for Pinochet’s victims.

But Pinochet himself died without ever being convicted of human rights violations as crimes or of corruption.

His widow and children have been investigated, but the charges were dismissed on appeal.

The obscure but interesting example of Chad Part of the obscurity is Chad itself — heard of now mainly because it is next to Sudan, close to Darfur. (Adding to the obscurity is the fact that the TC report is in French).

Hissen Habre has not been Chad’s only dictator, but he is the only one who might now be put on trial for abuses during his dictatorship, and the only one whom Chad’s truth commission found accountable for human rights violations AND corruption as well.

The Chad TC actually published a list of names of Habre regime officials who committed both, and recommended to the post-Habre government the removal from office of those who were in the list. It took over a decade, but yes, the post-Habre government did in fact remove these officials.

Habre himself may be tried (in Senegal, if not in Belgium) for war crimes and HR violations, using the principle of universal jurisdiction over such crimes.

Peru after Fujimori and Indonesia post-Suharto both tried to go after corruption and human rights violations committed by those dictators.

Peru convicted Fujimori and recovered a (small) part of his assets.

Suharto died without ever being charged of, and his assets remain with his children.

Peru had a truth commission that then recommended criminal charges against Fujimori.

Indonesia had a truth commission law that, when challenged in court, was conveniently declared unconstitutional by a pliant Indonesian high court.

That there is a regional human rights court in Latin America helped in Peru.

Which might offer some promise of what is possible with the new ASEAN Intergovernmental Commission on Human Rights.

Look at what is going on in Kenya I’m doing work on Kenya at the moment and it is an example of a country attempting — like we have previously and might be about to again — to apply a ‘truth commission’ approach to economic crimes and human rights violations committed across several regimes.

The Kenya TJRC (“J” for Justice) is like a Philippine TC that will look at all the regimes we’ve had — from Marcos to Arroyo.

Unfortunately, Kenya’s TJRC is headed by a former official linked to a regime’s land-grabbing record.

(Which, I should say here, is far, far different from whatever questions have been raised about former CJ Davide’s fitness to head the Filipino commission.)

But there is no doubt among Kenyans that their truth commission has to deal with both sets of abuses. This is not their first attempt at this, too.

In 2003, a similar commission was proposed, but was never set up.

What adds a different context to Kenya, though, is the fact that the International Criminal Court is also looking at a smaller set of perpetrators (of violence during elections held 2 years ago) for possible indictment.

Kenya is a party to the ICC treaty — the Philippines is not.

(And then there’s R.A. 9851 The ratification of the Rome Statute is a step that needs to be pushed in the Senate by the new President. Even if ratification doesn’t have a retroactive effect, we now have R.A. 9851, shepherded by Rep. Erin Tanada in the previous Congress, which legislates the provisions of the Rome Statute and makes crimes under the ICC’s jurisdiction also criminal under Philippine law. The alleged extrajudicial killings that have taken place in the first few days of the new Aquino administration, or any similar crimes that might be committed hereon not only by Philippine State security forces but by armed political movements including the New People’s Army and the Moro Islamic Liberation Front (MILF) can be prosecuted under this law. If we ratify the ICC treaty AND the Philippine legal system is either unable or unwilling to hold perpetrators of these crimes accountable, there can be recourse to the ICC.)

4. So should truth commissions investigate BOTH corruption and human rights violations?

I actually published an article for the International Journal of Transitional Justice (IJTJ) on this very question.

The article is Plunder and Pain: Should Transitional Justice Engage With Corruption and Economic Crimes” (link to which is broken or unable to be accessed at time of posting) and should address the more detailed questions of how another Philippine truth commission — and one that might potentially engage with both plunder and pain — might go about doing so. I’ll end this here for now.

From the Name-Dropping Dept. Just happened to finish reading an essay of Michael Ignatieff entitled Deficits in Granta 27, Summer 1989 issue which carried the theme Death. About ten years ago, I wrote a review of Asya, a novel he wrote. A copy of the book and the review I wrote have disappeared (probably for a good reason).

What this Aquino can do to those Marcoses

(From an email written by Ruben Carranza, a former official of Presidential Commission on Good Government, and addressed to Ricky Carandang, in reply to his questions regarding the latest proposed deal to “steal part of what was already stolen money.” The same email message was a note posted by Carranza on his Facebook page in which I was tagged.)

1. A PCGG-Marcos settlement is arguably barred now by the 2003 Supreme Court decision: it’s a final decision and it said that anything beyond the lawful income of the Marcoses from 1968 to 1985 is ill-gotten and to be forfeited.

The earlier SC decision in Chavez vs PCGG (sometime in 1999 I think) had laid down some requirements for transparency etc. in negotiating a compromise plus specified what can’t be included in one (e.g. no tax immunity, etc.).

But it can be argued that the Chavez case has been superseded by the 2003 decision as far as the validity of a compromise itself.

2. Just before I left PCGG, the last court document I drafted was meant to build an almost-idiot-proof/corruption-proof way of trapping the Marcoses and future PCGG officials in the finality of that SC decision.

The idea was to have a motion for execution of the SC decision filed in every case against the Marcoses et al (which is practically all PCGG cases) on the basic argument that the Marcoses already lost these cases once the SC said that they couldn’t legally claim to have earned more than $304,372.43 from 1968-1985.

While the 2003 decision involved the Swiss bank deposits, the reasoning applies to any Marcos assets — which is why Bong Bong’s admission — quoted in the same SC decision — is relevant because he speaks of all their Swiss assets — and we know that he is not referring only to the assets of the five foundations forfeited in that SC decision.

Here’s part of what Marcos Jr. said in open court — the last sentence is what the SC concluded about it:

ATTY. FERNANDO: Mr. Marcos, did you ever have any meetings with PCGG Chairman Magtanggol C. Gunigundo?

F. MARCOS, JR.: Yes. I have had very many meetings in fact with Chairman.

P[residing] J[ustice] GARCHITORENA: In connection with what?

ATTY. FERNANDO: In connection with the ongoing talks to compromise the various cases initiated by PCGG against your family?

F. MARCOS, JR.: The nature of our meetings was solely concerned with negotiations towards achieving some kind of agreement between the Philippine government and the Marcos family.

ATTY. FERNANDO: Basically, what were the true amounts of the assets in the bank?

PJ GARCHITORENA: So, we are talking about liquid assets here? Just Cash?

F. MARCOS, JR.: Well, basically, any assets. Anything that was under the Marcos name in any of the banks in Switzerland which may necessarily be not cash.

PJ GARCHITORENA: What did you do in other words, after being apprised of this contract in connection herewith?

F. MARCOS, JR.: I assumed that we are beginning to implement the agreement because this was forwarded through the Philippine government lawyers through our lawyers and then, subsequently, to me. I was a little surprised because we hadn’t really discussed the details of the transfer of the funds, what the bank accounts, what the mechanism would be.

Ferdinand Jr.’s pronouncements, taken in context and in their entirety, were a confirmation of respondents’ recognition of their ownership of the Swiss bank deposits”

3. So we then filed a motion for execution in what remained of Civil Case 141 (which was where the 2003 SC decision began) with respect to the remaining part of the case that involved about 1/3 of the Imelda Marcos jewelry now in the Central Bank (I see that the PCGG wants to auction them off; an Aquino administration auctioning them off would get a far better price because of (a) the credibility of the administration that would be taking that decision and (b) a sense of historic closure that certainly doesn’t hurt when selling proof of someone’s criminal extravagance.)

This same strategy of seeking the execution of what lawyers call the ‘ratio decidendi’ — the reasoning of the case — in the 2003 decision can be done, by way of different kinds of motions (a motion for summary judgment, ideally), in all other pending PCGG Sandiganbayan cases.

4. The part of the decision quoting Bong Bong was described by the SC as an admission by Bong Bong that he knows his parents acquired ill-gotten wealth and what these ill-gotten assets are (which he says is ‘everything’ and not just the Swiss bank deposits being litigated in 2003).

What does this mean if he becomes Senator? It means, first of all, that he is unfit for the office, and any Senator can move for his expulsion if the Senators agree that ‘disorderly behavior’ [which is the basis for disciplining a Senator] can’t possibly be more punishable that abetting and profiting from plunder;

(b) if he is elected, then the Constitution requires Marcos Jr. “upon assumption of office, (to) make a full disclosure of his financial and business interests” — so he cannot begin to discuss a compromise with the State without also disclosing the assets he claims to be his to compromise and

(c) he arguably may not even be part of negotiating any compromise with the State because the Constitution also says that “he shall not intervene in any matter before any office of the Government for his pecuniary benefit.”

5. If corrupt incumbents who have anything to do with any effort to surrendering the fight against the Marcoses can’t help it, then perhaps one option is to warn them of yet another constitutional provision: “The right of the State to recover properties unlawfully acquired…shall not be barred by prescription, laches or estoppel.”

A compromise — specially one that undermines a final SC decision against the Marcoses, that does not lead to the return of Marcos assets not yet found/frozen earlier by the PCGG, that essentially is being done in bad faith — can be undone and is not subject to estoppel.

6. A few final points about impunity: Just a few months ago, I was surprised to read — in a development that should have been but wasn’t well-covered in Philippine journalism — that the Supreme Court of Pakistan, faced with an earlier decision by the deposed military dictator Pavez Musharaff to unfreeze the ill-gotten Swiss deposits of the family of current President Asif Zardari (the husband of assassinated PM Benazir Bhutto), not only overturned this decision BUT cited the 2003 Philippine SC decision involving the Marcoses.

What we do with the impunity that the Marcoses still have matters to the rest of the world.

In my current work — going after the war crimes of ex-dictators and ex-warlords, helping governments and human rights activists and violations victims get compensation from the assets of these perpetrators, setting up truth commissions and war crimes courts to hold these violators to account — the half-finished effort to hold the Marcoses accountable for massive human rights violations and for large-scale corruption is still seen as an open question, one that matters to those fighting their own legacies of impunity everywhere else.

Whether to Peruvians dealing with Fujimori’s legacy and own efforts to return to power through his daughter, or to Serbs who can’t get Milosevic’s ill-gotten assets and whose own children and widow have taken control over those assets outside the country, or Indonesians who can no longer go after the dead Suharto and, it seems, even after his son Tommy, or to Liberians who cannot get a law passed in parliament to get Charles Taylor’s assets back because his wife and allies are Senators blocking that bill — how Filipinos deal with the Marcoses will shape their opinion of our moral standing as a people and will certainly impact on how international law, including the Rome Statute that created the International Criminal Court, is shaped.

If Aquino gets elected — and whether or not Marcos Jr. becomes Senator — the first order of business in fighting impunity mustn’t be a short-sighted effort to simply charge the Arroyo family with plunder for stealing a fraction of what the Marcoses stole and still possess.

It must be to (a) establish a truth commission that goes back to the start of the dictatorship and its repercussions up to now, with the power to recommend the creation of a human rights court to try perpetrators of rights violations during and after the dictatorship,

(b) possibly to abolish the PCGG and in its place establish a commission to implement the provisions of the UN Convention Against Corruption against anyone — Marcos/Marcos crony/heir and proxy of Marcos and Marcos crony in control of illicit-acquired assets — who falls within its ambit, with the power to file mutual legal assistance requests abroad as well as authority OVER the Anti-Money Laundering Council (AMLC) insofar as former and incumbent public officials are concerned.

The idea is to send a signal — to the Marcoses, to would-be Marcoses, to our own people, and to people everywhere who want to see our flag raised again in this fight.

A reader's lament

Sna Miguel Corp logo UCPB logo

A review of “Long and tortuous road to coconut levy recovery” by Romeo C. Royandoyan
Published by Centro Saka Inc. (Philippine Center for Rural Development Studies)
Copyright 2007

NO question about it: Romeo “Omi” C. Royandoyan has done a lot to advance the cause of the Filipino coconut farmer.
Currently the executive director of Centro Saka Inc. (CSI), a non-government group which, among others, undertakes rural development studies, Royandoyan was among the farmer-representatives appointed to the board of the United Coconut Planters Bank (UCPB), thanks to court decisions which ruled that the lender was acquired using funds collected from coconut farmers.
Since farmers technically owned the bank—assets bought using their funds were therefore theirs—they were entitled to representation at the bank’s board, which, in turn, was made possible by the courts and the Presidential Commission on Good Government under the late great Haydee Yorac, shortly after Gloria Macapagal-Arroyo was swept to power in January 2001.
Although Royandoyan, together with fellow farmer rep Jose Ma. “Joey” Faustino, was later removed from the board—presidents are entitled to change their minds especially regarding Marcos cronies—his commitment has never wavered.
To this day, Royandoyan, Faustino, former general Virgilio David (who was brave enough to expose the coco levy scam during the Marcos dictatorship), and many others remain committed to see that the funds collected from farmers are used for their benefit.
After all, coconut farmers have suffered more than enough.
Besides being forced to pay for heavy levies which amounted to P9.6 billion (as of a 1986 audit), coconut farmers have never benefitted from these taxes.
Instead, through a series of complex arrangements which transferred public funds for private ownership, the levies were unlawfully used by Marcos crony Eduardo “Danding” C. Cojuangco Jr. to buy a bank (i. e. UCPB) and acquire a controlling stake—anywhere from 47 to 51 percent—in San Miguel Corporation (SMC), the Philippines’ largest food company.
Although coconut farmers have won significant legal victories against Cojuangco—in May 2007, the courts allowed the partial sale of UCPB and SMC shares, proceeds of which will be held in trust by the government for the farmers—they still remain uncertain when their protracted struggle will end.
Like any other oppressed, disenfranchised, and marginalized group in this country, coconut farmers and their interests are easily ignored, no thanks to a powerful, influential, and moneyed class whose intentions almost always run contrary to the greater good.
This is probably why Royandoyan decided to author a book about the contentious, complicated coconut levy issue: to let the whole world know about what is perhaps one of the biggest scams in Philippine history, perpetrated by one of the most powerful and influential Marcos cronies.
Entitled “Long and Tortuous Road to Coconut Levy Recovery,” the book, published this year, is the very first volume in what appears to be the CSI’s Rural Development Review series.
However, despite its numerous potentials for dramatic storytelling, the book reads like an academic paper.
Which is not flattering at all.
Nor does it help the coconut farmers’ cause.
Had it been written with the regular reader in mind—regular reader here defined as someone who knows absolutely nothing about the issue—the book could have had more chances of generating support for the farmers. In turn, more support could mean more pressure for government to set things straight, underscoring once more the power of the written word; a power properly harnessed by those who sought to change the world.
Unfortunately, of the book’s 184 pages, only a handful of passages
can be considered as powerful.
Rife with legalese, punctuated by vague sentences, the book’s text drastically lacks in narrative what it offers in the way of substance.
Which is unfortunate.
Instead of interpreting, laymanizing, and contextualizing the many legal and technical concepts surrounding the coconut levy cases—there are eight of them in all, one of which involves an attempt at acquiring a stake in Pepsi Cola—the book in its own obtuse way merely replicates whatever the courts have said, possibly contributing to the readers’ confusion.
Nevertheless, Royandoyan’s book—and CSI’s efforts to such work publicly available—represents an important step towards documenting what may very well be one of the largest crimes in Philippine history.