Human Rights and Law in Asia

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Jakarta, Bukit Duri. Preparing Dinner. They live as a small community in this place. (henri ismail/Flickr)

Rajesh Swaminathan

My name is Rajesh Swaminathan and I am from Davis, Polk & Wardwell. I would like to ask all of the panelists what do you think is the applicability in each of the countries, something like the South African, Truth and Reconciliation commission for past crimes. And it strikes me that the virtue of that great innovation is that it allows for some of the things those speakers from the Philippines mentioned confronting the abuser, documenting a history of trauma without necessarily complicating the process by which society evolves certain universally accepted universal standards for instance, the unacceptability of arbitrary detentions, executions without trail, that sort of thing. And it strikes me that particularly where state institutions are weak, that’s a very useful sort of innovation to consider.

Mohammad Fajrul Falaakh

Yes. The Truth and Reconciliation commission model after the South Africans has been contemplated in Indonesia and a bill had been drafted by the Minister of Justice with the help of certain NGOs active in human rights causes but I don’t know that today. And especially important, I don’t how would they construct legal arrangement as to the relation of this truth and reconciliation commission with the existing human rights court or the tribunal within the existing ordinary criminal justice system. And another issue of mine is whether it is appropriate to really copy the South African model and especially if you have, like Indonesia, human rights abuses very much involving the military; Peru, other Latin American countries models may be better.

Question

There is actually a team from South Africa who worked on the reconciliation commission who have been to Indonesia and who have actually strongly recommended against the Amnesty provision because there were actually many reconciliation commissions before the South African but they didn’t have the Amnesty, which is key because it invites in a perpetrator. It gives them incentive to come forward and tell their stories. But if you don’t have serious prosecution you don’t have that incentive very effectively and so their perceptions of the Indonesians, their court system is still weak and you may in fact undermine these new attempts at establishing justice, because they are not strong, by giving Amnesty. And you could also undermine, it might not work, because the incentives are not strong yet. So there is an interesting controversy. It is still up in the air as you said.

Maria Glenda Ramirez

In fact in the Philippines they also established a truth commission but it was under presidential decree issued by President Aquino and it was called the Presidential Committee on Human Rights. Its task was to investigate the human rights abuses during the time of Marcos. However, it failed for two reasons. First, there was a law decreed by Marcos that all abuses committed by military against civilians will be tried exclusively by the military tribunal, and it was not repealed until 1991. And also during that time I think Aquino had difficulty prosecuting military officials because as we already know, the military previously supported the Marcos government, eventually supported outside revolution. So there was a feeling of gratitude towards the military and they were treated by the masses as heroes and eventually the military leaders like Enrile and Ramos were appointed by Aquino to key government positions.

Question

Do you think it would be at this point fair to say that the Philippines needs another political revolution to get the right kinds of institutions?

Maria Glenda Ramirez

I think the system is already in place but the problem is the people administering the system because some of the key leaders during the Marcos regime who later on denounced him, were later on reappointed by the Aquino administration by our former President Ramos, he headed the Philippine constabulary and it was identified as one of the most, one of the institutions that committed the most abuses during the Marcos time. Since he denounced Marcos, there was no accountability or purging of the institutions.

Edgar Bernal

We discussed actually about that, in the context of the Filipinos. And we do not know, if it is the culture of our country , of poverty, and we, until now, we haven't formed any opinion as to what is wrong with our country. Despite two revolutions and despite the fact that we have signed almost all human rights instruments. We are very close yet we are still floundering as a country and without a system at least, the culture, at least changing the culture, it only goes back to education.

Question

One other reason that it has been so difficult for human rights violators to be arrested, prosecuted is that starting with the Aquino administration the key people in former Marcos military launched the putsch in 1976 and later transformed themselves into the heroes of the revolution. They led a series of increasingly dangerous coup attempts against the Aquino administration. One of issues they are vindicated for their anger against the administration was that there were attempts on the part of the administration precisely because some among them were outspoken. It is just so ironic that after those coup attempts, governments, not only with the Maoist National Democratic Front and the Muslim armed self-determination movement but also with these others, they had been sworn to defend the constitution, their arms they just became another armed political movement. And that has come from their self-importance and it remains a challenge for us. In relation to education, we need to go back all the way to the way to the socialization of the military because that in itself is so steeped in violence.

One small part that I would like to add, we have so much unfinished business. Even we are suppressed. So after the revolution there is political change or partial political change. We did not go on to continue the process of social and economic change that we practiced for a variety of reasons. Many of which are our own fault. And so, as Hannah pointed out, we had to bring the situation to such a crisis point that we had to do the people power too, last January, just to oust the president instead of having normal political processes paving the way for transition. So now we are confronting having to learn again from the past thing that we have done right and the past mistakes, which we have repeated at least once over. And to say what do we do now? And this leads to the question I wanted to raise. Now, for example, looking back on what we have not done with regards to the Marcos legacy, there are processes like this memory booth and the justice project, in thinking about that and thinking about the people power through last January, now cases have been filed for plunder, for ill-gotten wealth against Estrada. Now we are in the middle of a campaign, which will happen in May, where our Estrada forces are going to try to use it to vindicate themselves and make a comeback at the polls. Do you have a sense that we have learned and that we will do better this time, making them accountable in the courts, and not just in the courts but in society at large. Because I also believe as what you were pointing out about the process in South Africa, maybe it is not necessarily absolute justice or legalistic justice one hundred percent, that we need to go after, though I don't even know if that is possible, but to strike other ways that our society can find of meeting that justice of healing and reconciliation and living together again. Sorry it was long but are you more hopeful or optimistic?

Maria Glenda Ramirez

Just in addition to your comment. The military leaders that lead the coup d’etat against the Aquino administration was later on granted de jure Amnesty by Ramos. My only problem is that with various issues facing the present administration, like there are rumors of a new coup d’etat and challenges to the legitimacy of the government and there also calls to establish a truth commission for corruption during the Estrada administration. But they may be forgetting one segment of the population, which is the human rights victims during the Marcos regime. And what I am proposing is an establishment of a new truth commission to address the injuries they suffered, although the first truth commission and the human rights case filed in the US has several advantages. It identified the military and the paramilitary in the institution. It identified the top leaders. But however, there is still need to determine about how to deal with the persons who actually committed the offenses and the role of the middle-ranking military officers like Ramos and like Enrile to determine their accountability. At this point I do not know if there is a possibility of their prosecution because, like in Indonesia, there is the problem of the retroactivity of criminal laws. Because this happened from 1971-1986 and it is possible that most of the crimes already proscribed. But at least with the truth commission, their priorities should be to give compensation because I don’t think the two billion judgement is realistic and I don’t think it will be enforced. So the main purpose of the truth commission would be to establish reparation, mechanism for the government to provide for compensation to the victims and to Marcos and not Marcos themselves.

Question

My name is Matthew Draper. I am a student a Columbia Law School. I wanted to follow up on what a couple people have said about how to make the transition. And I wanted to ask the following, Thailand’s constitution and the process that it was negotiated, adopted by, was widely praised. It was seen as very open and it was thought to have included a lot of citizens and it also educated a lot of them about the constitution. And, I think some people thought that that would mean that even down to the village level people would understand what democracy means and what rule of law means and that you would create this new culture through the constitution writing, rewriting process and the debate over whether or not to adopt it. But you were saying just now that you thought a lot more education was needed. Do you think there was a positive effect from the process that the country went through in discussing and rewriting the constitution and if so, is that something that you would recommend for some other countries that are facing similar conflicts?