Exorcising the ghost of the past

With all their money, influence and newfound power under the Duterte administration, the Marcos family is still haunted by their past. If the recent pronouncement of the president that the Marcos family is offering to return part of their ill-gotten wealth in exchange for immunity is not a stir or fake news, then no amount of historical revisionism and trolling has given them peace of mind since they were unceremoniously booted out of the country in 1986. Their crimes are like ghosts that refuse to disappear despite applying massive doses of magical spells and incantations.

This is not the first time that the Marcos family proposed this so-called asset-for-immunity settlement. In fact, this is only the latest in a series of failed settlements since they returned to the Philippines from exile in Hawaii in 1992. But while previous attempts to come up with a settlement proved to be failures because the legal processes involved were contrary to Philippine laws, this latest attempt is worrisome for its vagueness or lack of details. 

Where previous administrations have failed, this proposed settlement designed to exonerate the Marcos family from infamy may well be the next terrific accomplishment of the Duterte administration. After all, the apologists argue, the fabled Marcos assets may well be used for the government’s priority programs. But lest we forget, the Marcos family has been scheming in using their assets to lure salivating government officials and other parties into an onerous deal.  

Allow me to backtrack a little to contextualize the issue. Two months after the creation of the PCGG in February 1986, the Philippine government sought the assistance of the Swiss government to help recover documents pertaining to Marcos assets hidden in bank accounts and foundations through the Request for Assistance in Criminal Matters (IMAC).

These documents were necessary to prosecute the Marcos family and recover their ill-gotten wealth. The Swiss government responded on May 29, 1986 by freezing bank accounts and assets in 3 shell foundations. The policy of the Cory Aquino administration was to restitute these assets to fund its agrarian reform program.

As requisite for the release of the Marcos assets held in bank accounts and foundations, the Swiss Supreme Court ruled that the contested assets be placed in an escrow account until a Philippine court gives a verdict on its ownership. The ruling also specified two conditions – for the Marcos family to return to the Philippines to defend themselves in court and for the human rights victims to be given some form of compensation.

These provisions likewise satisfy the standards set by the European Commission on Human Rights. In 1998, the said assets were transferred to an escrow account at the Philippine National Bank (still a government bank then) pending the resolution of the ownership issue. 

For the human rights victims, however, the mechanism to put Marcos to account was prosecution. In 1987, a class suit was filed in the Hawaii District Court in behalf of Liliosa Hilao and over 10,000 other victims of human rights abuses under the Marcos regime. The case was however summarily dismissed.

It will take another 5 years, a rethinking of American laws pertaining to human rights violations, compensation and state immunity, and the replacement of the former judge at the Hawaii district court before the case was reopened and heard in September 1992. All the 3 major cases filed against Ferdinand E. Marcos, Imee Marcos, and the Marcos heirs were consolidated into one: Multi-District Litigation (MDL) 840.

In only two weeks of hearings, the jury found Marcos and his heirs guilty of gross human rights violations. Thereafter the Hawaii court awarded the victims US$1.2 billion in compensatory damages and another $776 million in exemplary damages in 1995 for a total of more than $1.9 billion. The decision was a watershed, the problem, however, was its implementation. 

In the meantime, several forfeiture cases were filed by the Philippine government prosecutors at the Sandiganbayan as early as 1986. And of September 24, 1993, Imelda Marcos was convicted by the Sandiganbayan for violation of Republic Act 3019 (Anti-Graft and Corrupt Practices Act).   

As a practitioner of the “win-win” solution, the Ramos administration authorized then PCGG chair Magtanggol Gunigundo to negotiate with the Marcos family to prevent a protracted legal battle. As stipulated in the General and Supplemental Agreements, both dated December 28, 1993, the Philippine government proposed a sharing agreement on the contested assets – 75% for the government and 25% for the Marcoses. The proposal also called for the Marcoses to shell out $150 million for the Marcos human rights victims in exchange for immunity from suit.      

The public backlash against the “sweetheart deal” resulted in the creation of Kilosbayan, headed by the PCGG’s first chair, former senator Jovito Salonga. In the absence of contrition and restitution, Kilosbayan argued, any settlement with the Marcos family would be a sham. This would also set a bad precedent, as this would encourage plunderers to shed just a portion of the loot and go scot-free. In short, stolen money can now be used to buy immunity for thieves! 

This attempt to reach an agreement failed because the amount specified was considered too low, or a fraction of the amount awarded by the Hawaii district court.  Furthermore, the legal processes involved were complicated. In addition, the timing was not auspicious. Just 9 years after the Marcoses were booted out of power, the wounds inflicted by the Marcos family were still fresh in the memories of Filipinos.

The Estrada administration almost came out with a settlement with the Marcos family. A known Marcos ally when he was still mayor, Estrada had advisers who were close to the two parties – then executive secretary Ronaldo Zamora for the Marcoses and secretary Horacio Morales and TESDA director Edicio de la Torre for the human rights victims.

To set the tone, Estrada argued for the abolition of the PCGG, noting “that litigation is fruitless and expensive, what is needed is the money for the poor!” The Marcos family too issued press statements expressing their willingness to come up with a “global settlement,” i.e., dismissal of all criminal and civil cases against them, guarantee of full immunity from further suits, and tax exemption from the assets that they may keep.

A group of human rights victims under the umbrella of SELDA (Samahan ng mga Ex Detainees Laban sa Detention), convinced the National Democratic Front (NDF) to include the issue of compensation for the human rights victims in the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) which the Estrada administration eventually signed. Part of Article 5 of the CARHRIHL reads: 

“The parties hereby respect and support the rights of the victims of human rights violations during the Marcos regime taking into consideration the final judgment of the United States Federal Court System in the Human Rights Litigation against Marcos…”[1]

But before any negotiations could begin, the proposed peace talks stalled when the NDF insisted that the framework for the negotiations be the NDF Constitution. However, then ambassador Howard Dee, the head of the government’s negotiating panel, also insisted that it should the 1987 Constitution instead.

When the proposed peace talks finally collapsed, another group of human rights victims, the Claimants 1081, picked up the pieces. The agreement may have pushed through if not for the shrewdness of the Marcos family. The Marcos lawyers inserted some provisions in Par. 5.2 of the Agreement after it was submitted by Atty. Swift, the class suit’s lead counsel. The insertion read:

 “When the Judgments in this litigation are marked satisfied …. which he / she ever had, now has or hereafter may have against said parties.Imelda Marcos has never been charged civilly or criminally with a Human Rights violation anywhere in the world, including in the Philippines but is released fully by this paragraph. Ferdinand R. Marcos has never been charged civilly and criminally with a Human Rights violation anywhere in the world, including the Philippines but is released fully by this paragraph. Imee Marcos Manotoc (with the exception of Trajano vs. Imee Marcos-Manotoc, HW Civil) has never been charged civilly and criminally with a Human Rights violation anywhere in the world, including the Philippines but is released fully by this paragraph, including Trajano. Irene Marcos-Araneta has never been charged civilly or criminally with a Human Rights violation anywhere in the world, including the Philippines, but is released by this paragraph. The late Ferdinand E. Marcos was never charged with a Human Rights violation civilly and criminally in the Philippines. His estate is released fully by this paragraph.”[2]   

When the proposed settlement was submitted to the Sandiganbayan for approval, then presiding justice Francis Garchitorena reminded the parties concerned that human rights victims did not suffer death or injury in anticipation of payment years later.

“They did not sue in order to make money or get rich; rather, they sued to affirm the wrong done to them and to have those who have done them wrong held publicly responsible for that wrong. Money was not all the lawsuit in Hawaii was about; certainly, that is not the meaning of such a judgment by the US District Court in Hawaii… The Republic cannot volunteer to pay for the injury to its own people, and then cause the release from any liability the estate of the one who caused the injury.”[3]  

Finally, the Supreme Court struck down the proposed settlement for reasons contrary to law, among them: that the state cannot grant immunity to defendants but only to those who could testify against them (Marcos family); that the executive department cannot grant tax exemption, only Congress have that authority; likewise the executive department cannot dismiss cases, only the judiciary can; and lastly, the agreement did not provide a definite period for the Marcos Estate to submit an inventory of their total assets and may take a lifetime.[4]

With this ruling, the Supreme Court finally forfeited the assets held in a PNB escrow account totaling $658,175,373.60 (as of January 31, 2002) plus interest, in favor of the Republic of the Philippines. The amount was transferred to the National Treasury thereafter. Unfortunately, the following year, 2004, was general election year. I strongly suspect that part of the Marcos assets was used for election purposes, in particular, the so-called fertilizer fund scam to help Arroyo win. The Comprehensive Agrarian Reform Fund stipulates that proceeds from recovered Marcos ill-gotten wealth are to be used for agrarian reform.

There is no more reason to come up with a settlement with the Marcos family. The implications of Martial Law Human Rights Victims Recognition and Compensation Act (RA 10368) signed by former president Noynoy Aquino in February 2003, is that the Philippine state has finally recognized the Marcos human rights victim and that democracy and the restored freedoms we enjoyed until last year rest on their sufferings and sacrifices. But with the propensity of Malacañang for surprises, this proposed settlement may come again like a thief in the night. The sequel to the Marcos burial at the Libingan ng mga Bayani. – Rappler.com 

Roy P. Mendoza is a former History teacher. This article is dedicated to the employees of the soon-to-be-abolished Presidential Commission on Good Government.