Quo vadis human rights claimants?
By Gina Mission
First of two parts

ack to square 2.39 billion, this is the consensus of the nearly-10,000 human rights claimants as regards the latest development in the ongoing human-rights case against the Marcoses. But that is as far as the claimants wish to travel together, in this typically Filipino tale of two factions.

___It all started when Robert Swift, in his capacity as the lead counsel for the claimants entered, in December 19, 1998, into a settlement agreement with the Marcoses which grants the claimants $150 million from a settlement fund. In a final ruling, Hawaii District Court Judge Manuel Real approved the agreement on April 29, 1999.

___The settlement fund was to be drawn from the $590 million account held in escrow at the Philippine National Bank (PNB) under the Philippine government’s name by virtue of the 1997 Swiss Federal Supreme Court ruling declaring the amount, deposited at the Swiss Bank under five Marcoses "foundations" as of "illegal provenance."

___Under President Joseph Estrada’s instructions, the presidential Commission on Good Government (PCGG) signed an undertaking with the representatives of the five "foundations" and the PNB to secure the release of the $150 million from the escrow deposits. Consequently, the PCGG filed a motion for approval of the undertaking with the Sandiganbayan.

___Among other things, the agreement provides for the undisputed "overnight insertions" made by the Marcoses, which grant them immunity from any and future human rights violations claims by the plaintiffs and their immediate families and relatives within the fourth civil degree of consanguinity.

___SELDA, one of the two factions composing the human rights claimants, denounced said agreement particularly the "overnight insertions," saying it was "downright immoral and a complete treachery to the rights and interests of the 9,539 human rights victims and the Filipino people." The agreement, according to SELDA secretary general Marie Hilao-Enriquez, is an utter betrayal of their 13-year struggle for genuine justice and indemnification and negates their quest for redress for the human rights violations committed against them under the Marcos regime.

___Vowing to fight for justice, SELDA filed an appeal with the US Court of Appeals asking for the nullification of the agreement.

___Claimants 1081, the other faction, however, revealed to CyberDyaryo that the insertions were immaterial to their case, as what they’re after is the Marcos estate, and not the Marcos family. In fact, said Ramon C. Casiple, secretary general of the group, justice has been served to the victims already as far as Claimants 1081 is concerned. "Real handed down a landmark decision on the Marcos Human Rights Litigation 1992 favorable to us," Casiple reasoned. However, the said favorable ruling has yet to be enforced.

___On May 13, 1999, Swift filed a petition with Real’s court asking for the termination of the settlement agreement because the $150 million settlement money has not been transferred to a US court-designated bank, as provided for in the agreement. The petition was prompted by the declaration submitted to the Hawaiian court by Sherry Broder, Swift’s liaison officer, which reported that as of May 13, the First Hawaiian Bank, where the settlement fund is supposed to be wire-transferred from the PNB escrow account, has not received the money.

___Swift however said in his petition: "In the alternative, the plaintiff class moves … [to] modify or amend the judgment should it be construed as a final order of this Court. Should the payment be received promptly during the pendency of this motion, counsel will withdraw the motion."

___"Back to square one," was how both factions of claimants described Swift’s petition. "We’d rather go for the enforcement of the earlier $2.35-billion judgment of the Hawaiian Court against the estate of Ferdinand Marcos, than settle for an agreement that doesn’t even assure of us the settlement fund," said Casiple. He added that if this is not possible, they are willing to go for another compromise agreement.

___Enriquez said the same thing. But unlike Claimants 1081, SELDA will never give its consent to any compromise deal. "The Marcoses have to be convicted for our sufferings. No amount of money can take that. We will not allow the rewriting of history," Enriquez said.

___As Enriquez confessed, SELDA is quite pleased with Swift’s petition, even though they were never really consulted by him before he filed it. Claimants 1081, on the other hand, revealed that the said motion was filed by Swift by virtue of their instruction.

___But before SELDA could even feel the relief brought about by the Swift petition, they have another one battle coming. On May 19, the Supreme Court rejected the petition of the Marcos children to be allowed to join in the appeal of former Solicitor General Francisco Chavez to make public the 1993 compromise agreement between the Marcos estate and the PCGG.

___The high tribunal also said that the 1993 secret agreement between the government and the Marcos family would have given the Marcoses "a license to perpetrate fraud against the government without any liability'' and set "a dangerous precedent for public accountability.''

___The PCGG, then headed by Magtanggol Gunigundo, which negotiated the secret agreement, had no authority to grant criminal and civil immunity and tax exemptions to the Marcoses, the Supreme Court ruled.

___The $2.3 billion awarded by Real to the claimants in his 1992 ruling did not identify where the money would come from. This virtually leaves the claimants a ruling "good on paper" only. The compromise agreement, on the other hand, named the $590 million escrow account from which the $150 million settlement fund will be coming from.

___Still, the claimants face legal roadblocks, the most prominent of which are the landmark Supreme Court ruling in Chavez vs. PCGG and the Comprehensive Agrarian Reform Law (CARL). In Chavez vs. PCGG, the court held as illegal the compromise agreements with the Marcoses granting them immunity from suit or assuring them that pending charges shall be dropped. CARL mandates that ill-gotten wealth recovered by PCGG such as the $580 million escrow funds should be devoted to the agrarian reform.

___Chavez, in his April 26, 1999 petition filed before the Supreme Court to stop the PCGG from entering into or executing any agreement with the Marcoses, raised the CARL issue as a serious legal impediment to the execution of the April 29 settlement agreement.

___"Republic Act No. 6657 and Proclamation No. 131 prohibit/bar the distribution and/or use of the escrow account other than to and for the CCARP.

___"Since the claims of the human rights victims are the direct and primary liabilities of the Marcoses, utilizing $150 million from the escrow account is a virtual subsidy/guarantee by the government/PCGG for the Marcoses and an open admission that the aforesaid amount rightfully belongs to the Marcoses and, therefore, should be utilized to pay their liabilities to the human rights victims," asserted Chavez in his petition.

___As Chavez stressed: "The PCGG’s consent and active brokering in the settlement between the Marcoses and the human rights victims in the US case - to which neither is a party - is an unlawful waiver of the Philippine government’s sovereignty and submission to the US court’s jurisdiction designed to further accommodate the Marcoses at the expense of the self-respect and dignity of the victims who oppose objectionable provisions of such compromise settlement."

___Furthermore, Chavez said, the PCGG is tasked with "the recovery of all ill-gotten wealth" of the Marcoses. PCGG’s brokering of the settlement agreement, said Chavez, is therefore a "clear abdication and blatant abandonment of its clear mandate."

___In an interview with CyberDyaryo, Chavez said that with its decision, the Supreme Court in effect, is saying that there’s no longer any legal obstacle to the proceedings in the Forfeiture petition which he filed in 1993.

___On Swift’s petition, Chavez said: "I look at it with some caution because it doesn’t seem to be a very definite position. He’s segurista. There’s no definiteness in his position. He’s fluid, he’s flaky. It’s a sham motion to me, intended to mislead the Sandiganbayan into believing that the matter is now moot and academic because of his motion."

___If Chavez’ theory is true and if the Sandiganbayan indeed would rule as Chavez thought Swift want it, then his April 29 petition will also be considered moot and academic. Still, Chavez is confident that the Sandiganbayan "is not going to be misled by this kind of motion and that it nonetheless come up with its own resolution of my petition."

___On the issue of sovereignty, Chavez said: "The US judge realized that the Philippines is not under the US. The Sandiganbayan is not a trial court under the court of Judge Real. We are a sovereign state. We have our own set of procedures and substantive laws and it cannot dictate or direct this government to remit $150 million to his court. Who is he? Supposing Gatchitorena rules otherwise, will he issue an order declaring Gatchitorena in contempt of his Hawaiian court?"

___In fact, Chavez is "looking forward to a resolution by the Sandiganbayan asserting itself . We are an independent nation. Nobody tells us what to do."

___The May 19 Supreme Court ruling further dims the chance of the claimants of ever getting either the settlement funds through the escrow account or the enforcement of the $2.3 billion award for compensatory damages because of RA 6657 and Proclamation 131.

___Chavez is seeing a scenario where the Sandiganbayan issue an injunction not allowing the release of the $150 million. "Of course, the PCGG will elevate the case to the Supreme Court. We will fight it out in the Supreme Court," Chavez vowed.

___Faced with all these legal obstacles, Claimants 1081, are hoping the government "will make good its promise to allocate $150 million to the human rights victims." SELDA members, on the other hand, are holding the Estrada government’s lack of political will to prosecute the Marcoses, responsible for such downhill direction.


Next week: The history of the claimants, and the future as seen by SELDA, Claimants 1081, and the PCGG.

CyberDyaryo | 1999.05.20