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The Philippines and the Right to Compensation for Human Rights Abuses: Justice Delayed is Justice Denied
JURIST Guest Columnist Lara Wharton, Emory University School of Law Class of 2013, discusses the human rights abuses in the Philippines...
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Under the new legislation, ten billion pesos (USD $246 million) will be set aside to provide compensation to the victims and their families. The act creates an independent Human Rights Victims' Compensation Board, which will allocate the funds according to a point system based on the type, frequency and duration of the human rights violations committed against each victim. Although the act is a step in the right direction, it does not come close to fulfilling the Philippines' legal and moral obligations of restitution, reparation and compensation for victims of human rights abuses that exist under international law.
The Philippines is currently a party to the majority of international human rightsinstruments and treaties with no reservations. The International Covenant on Civil and Political Rights (ICCPR) requires state parties to ensure that every person whose rights or freedoms are violated has the right to an effective remedy determined by a competent authority. It also provides victims of unlawful arrest or detention with an "enforceable right to compensation." Similarly, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture") obligates state parties to ensure that victims of torture have an "enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible."
The Philippines was not a party to either the ICCPR or the Convention Against Torture during the Marcos administration. However, the right to a remedy by a competent authority for victims of human rights violations is enshrined in Article Eight of theUniversal Declaration of Human Rights (UDHR), and is considered a norm of international customary law to which nations are legally bound. Under customary international law, governments must also take reasonable steps to investigate and record human rights abuses committed by former administrations in order to identify those responsible and provide victims with adequate compensation.
In this regard, the Philippines has been extremely lax in its obligations to provide both reparations and an effective remedy to victims of human rights abuses perpetrated by the Marcos' government. After Marcos fled his country and took refuge in Hawaii in 1986, no steps were taken by any successive governments to investigate the abuses that took place under his administration. De facto impunity for police and military forces was, and still is, the rule — effectively barring victims from seeking redress and reparation. Although the act provides compensation to the victims, it is neither fair nor adequate considering the severity of the human rights abuses the victims suffered and the decades they waited for reparation and recognition.
As the victims were denied their right to an effective remedy by a competent authority in the Philippines, they turned to the US court system as a last resort. Plaintiffs were required to sue Marcos in his individual capacity, as US foreign sovereign immunity law did not allow them to name the Philippines as a defendant. A number of civil lawsuits, including a class action involving approximately 10,000 victims, were brought against Marcos. These lawsuits sought the recognition of personal liability for the human rights abuses committed under his reign, compensation for the victims and their families and punitive damages. The cases were brought under the Alien Tort Claims Act, which gives US district courts original jurisdiction of civil actions by aliens for torts committed in violation of international law.
In 1992, a six-member jury sitting in the US District Court for the District of Hawaiifound Marcos personally liable for the human rights abuses committed under his leadership. The court awarded the victims $2 billion in damages, sourced from funds that Marcos had embezzled from his country and hidden during his reign. In 1997, the victims filed a suit in the Philippines to obtain enforcement of the US judgment. Initially, the regional court dismissed the suit, stating that the victims were required to pay a filing fee of $8.4 million, based on the $2 billion in dispute.
On appeal, the Supreme Court of the Philippines took 8 years to consider the issue, and eventually delivered its opinion requiring a filing fee of only $7.20. The court offered no explanation for its delay. In 2007, the Human Rights Committee of the UN (HRC) published a communication in which it concluded that the Philippines government had violated the victim's rights under the ICCPR due to the unreasonable amount of time it had taken to consider "a matter of minor complexity." The HRC requested that the government compensate the victims, promptly resolve the case on the enforcement of the US judgment and ensure that similar violations do not occur in the future. To this day, only a small portion of the US judgment has been distributed to the victims due tocontinuous opposition by the Philippines government.
The passage of the act may seem like the first indication that the sun is rising over the Philippines. However, the horizon remains dim. The Philippines government has continuously violated its duties under international law by refusing to respect the rights of its citizens to an effective remedy and to fair and adequate compensation for human rights abuses committed by the state. Although compensation is on its way, the act will be of no avail to many of the victims and their families who seek to know the truth surrounding the circumstances of the abuses, to have the perpetrators of the crimes brought to justice and to be guaranteed that the rights of Philippine citizens will be respected in the future.
As it has not violated another state's rights such that it could be taken to the International Court of Justice (ICJ) — and since there are no regional human rights courts that have jurisdiction over the controversy — the international community is not left with many options to hold the Philippines responsible for its violations of international law. However, the international community can use political pressure to urge the Philippines to comply with its human rights obligations by encouraging the government to take the following actions:
The government must conduct independent investigations into all of the human rights violations that have occurred during and since the Marcos regime and publish its findings. The government must prosecute the individuals who committed the crimes and must erase all reliance on impunity from prosecution so as to stop further abuses from occurring. The government must allow the victims of the past human rights abuses to collect on the US judgment immediately. Finally, the government must adhere to President Aquino's promise that "the State will protect, with unflagging commitment, the rights of all its citizens."
Lara Wharton is the winner of the 2011 Dean's Award for Outstanding Academic Achievement in Environmental Advocacy, and was a 2012 Summer Student at Wildeboer Dellelce LLP.
Suggested citation: Lara Wharton, The Philippines and the Right to Compensation for Human Rights Abuses Under International Law: Justice Delayed is Justice Denied , JURIST - Dateline, Mar. 17, 2013, http://jurist.org/dateline/2012/03/lara-wharton-philippines-compensation.php
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