What Cory can teach Noynoy about truth commissions

Posted at 07/17/2010 10:49 PM | Updated as of 07/17/2010 11:41 PM

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 i 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" 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.