The costs of memory: options for transitional justice and reconciliation, ten years after Tokhang

Note: Shorter versions were published on Rappler.com and as part of the Resbak zine released in February 2017. 

Disclaimer: I am not a lawyer nor a transitional justice expert. This was not written in any professional capacity. I am a private citizen of the Philippines attempting to get some nagging questions out of my head as fast and raw as I can. Any alternate options? Disagree? Feel free to add!

Consider this a work of speculative fiction.

It is 2032, ten years after Rodrigo Roa Duterte successfully terminates his term as President, and with it, the lives of the estimated 4-5 million ‘drug personalities’ in the Philippines, plus change. A Marcos or two may have succeeded him as head of state. Maybe not. But somehow, conditions have made it so that the Sovereign People of the Philippines are calling out for ‘transitional justice and reconciliation,’ a term first bandied about in the wake of Martial Law, and later popularised as part of the convoluted Bangsamoro peace process.

The United Nations—Tatay Digong’s favorite international body—defines transitional justice as the ‘full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale abuses committed in the past, in order to achieve accountability, serve justice, and achieve reconciliation.’ The word ‘abuses’ remains hotly contested, of course, triggering accusations of bias and various political colorings and retardations from all sides. But on a more concrete level, it asks two questions. First, what makes people deeply hurt and angry? And secondly, what will it take to address that hurt and anger?

These questions become relevant because despite overwhelming popular approval, particularly from men and the working class; despite plummeting crime rates and rising murder rates; not to mention then-Justice Secretary Vitaliano Aguirre’s assertion that the President could not be charged in the International Criminal Court for crimes against humanity because ‘criminals are not humanity,’—by 2032 it reaches a point that the droves of dead and orphaned could no longer be ignored. By January 2017, barely six months after the start of the Duterte Administration, the PNP’s Anti-Illegal Drugs Campaign Plan Oplan Double Barrel and its components of ‘Tokhang’ (Bisaya shorthand for toktok-hangyo, or ‘knock-and-plead’) and ‘Project HVT/LVT’ (high-value targets/low-value targets) bore fruit of over six thousand deaths, a number that grew with the waxing and waning of the moons. Arguably, extrajudicial killings and other human rights violations were not limited to the Duterte Administration, having been a regular occurrence since Martial Law and even after the nominal restoration of democracy in 1986. But the time they were done, the Tokhang bodycount was numerically comparable (by the President’s own estimation) to the Holocaust of six million Jews. It far outstripped the Khmer Rouge’s genocide of 1.7 to 2.5 million, Rwanda’s 800,000 Tutsis and moderate Hutus, not to mention the estimated 3,240 deaths under the Marcos dictatorship (not counting the casualties of the war in Mindanao), and the paltry seventy-five-thousand-odd that claimed reparations under the beleaguered Martial Law Human Rights Victims Claims Board.

And then there were orphans. Young men and women now, some roving in packs, some turning to criminality and drugs, others far worse. Of course, there were never any official admissions of criminal culpability from the Philippine Government (save for the President’s sporadic televised statements of throwing criminals off helicopters and such), but it was enough. If one digs amongst the archives, one could recall the early gestures. As early as December 2016, then-Philippine National Police chief Ronald ‘Bato’ dela Rosa wore a cheap Santa suit and gave out toys to a crowd children whose parents were killed in the name of or surrendered to President Duterte’s ongoing war on drugs. After handing out plastic police cars and stuffed animals in a supermall in Ortigas, De la Rosa was interviewed saying, ‘Since most of these children ay namatayan ng parents, ng father dahil sa ating ongoing war on drugs, we want to compensate this loss, their sadness with somehow little feeling of happiness…’ Similarly, then-Senator Panfilo ‘Ping’ Lacson, former PNP director-general and no stranger to extra-judicial killing allegations himself, also called on President Duterte to compensate the orphans of the drug war by providing burial assistance and scholarships.

It took more than ten years and not a few vengeance killings, maimings, and bombings after Tatay Digong for people to widely admit (and not retract) that maybe, they were in the wrong, and maybe, some healing was truly in order.

By then, the 140-million citizens of the Philippines were haunted by a generation of angry, wounded children whose formative images were of their fathers, mothers, siblings being gunned down by police operatives or bonnet-clad ‘riding-in-tandem’ motorcycle vigilantes, their death shrouds nothing more than packing tape and a piece of cardboard proclaiming their status as drug pushers or users, and therefore, expendable. Collateral damage. At first they were poor, and therefore invisible and silent. And then even the middle class started to bleed…

So given those conditions, what could a transitional justice program for Tokhang victims, particularly for orphaned children and youth, possibly look like?

Alternatively formulated as ‘dealing with the past’ or restorative justice,’ the concept of transitional justice and reconciliation is built on the premise that the State has a responsibility to provide redress to victims of past abuse in accordance with legal obligations under international human rights law and international humanitarian law. Its origins root in the post-WWII Nuremberg Trials that prosecuted Nazi and Japanese soldiers; the trials of military juntas in Argentina and Greece in the 1970s and 80s; and the democratisation processes of the 90s. The most popular mechanisms include the post-apartheid truth commission in South Africa, and reparations programs for indigenous peoples in Canada and Australia. Indigenous forms of restorative justice exist: blood payments, rituals, peace pacts, particularly for warring between tribes and clans. However, Western constructs of transitional justice and reconciliation become relevant due to the sins of an equally Western construct: the modern Nation-State.

While transitional justice has been traditionally associated with the investigation of human rights violations after authoritarian regimes or in the ‘post-conflict’ environment after the signing of a peace agreement, its power lies in the radical political and economic transformations that are possible in moments of instability and flux. Changes that, if done right, can promote social integration and trust, strengthen institutions, and enable the participation of citizens who have been excluded and marginalized. Thus, despite Duterte loyalists’ stance that the ICC and the United Nations have no jurisdiction over domestic affairs of the Philippines—and why didn’t they investigate the Americans over Iraq, those fucking hypocrites—healing the wounds of the drug war could not help but be a domestic priority in the year 2032. Not with 5% of the population killed by the State, at least 20-30% directly or indirectly affected, as victims or as perpetrators. The final kill lists showed that the majority of those executed were poor, working-class. High-profile drug lords mostly walked, scot-free.

International experience suggests that any serious transitional justice effort should be dealt with in a holistic manner and constructed around four inseparable rights:

a) the right to know, entailing the establishment of facts and an accurate historical record;

b) the right to justice, where culpable individuals are investigated, judged and sanctioned in a judicial process by a competent tribunal;

c) the right to reparations, whether through financial or non-pecuniary compensation ; and

d) the right to non-repetition.

The assumption being that those affected do have rights, and these programs do not mean that peoples’ forgiveness is being bought off. As if they ever could. Reconciliation is not a substitute for justice, as the revenge killings done with little more than icepicks and barbecue sticks would attest. No such thing as forgiving and forgetting. To do transitional justice means to deal with the wounds of the past and its ramifications on the present, to ensure that communities and families can begin to move towards building a viable future.

Operationally, this means:

1. Information. Securing basic, comprehensive, accurate and unbiased information on the numbers of people killed, widowed, orphaned, injured, disabled, abducted, disappeared under Tokhang and related policies, including those who suffered the stigma of being put on community drug lists and being forced to ‘surrender’. Engaging families and groups that survived similar pain and experiences, and treating them with dignity and respect. This can be done through truth commissions, studies, reports—not only on the killings, but on the relative advantage and pitfalls of policies and programs related to drug trafficking and abuse. Ensuring that this information can never be forgotten or erased through the setup of archives and continuous communications and education efforts.

2. Acknowledgment. Publicly and formally acknowledging the pain and suffering caused to victims and their families, though public apologies/statements, monuments, symbolic acts. Not dismissing peoples’ humanity or saying ‘joke only’. Similar to what has been done globally, there must be admission that the war on drugs has harmed more children and families than it has helped, and therefore institutions and policymakers have a deep moral responsibility to help the communities ravaged by the killings.

3. Reparations. Securing resources to provide appropriate forms of reparations depending on type of loss and trauma incurred, but focusing particularly on vulnerable children, widows, and elderly. Options include direct cash payments, scholarship programs, income generation, employment or sustainable livelihood schemes, and appropriate forms of compensation for the few cases of property rights violations, especially towards the bloody end, when more than a few things burned down. Reimbursing for the high costs of embalming and burial that less-than-solvent families had to pay for, their loved ones’ corpses held hostage. There is no lack of formulae. After all, the Philippines’ various ethnolinguistic groups all have their own traditional forms of reparation–blood money, diyya, rituals, peace pacts–social forms that soothe both the gods and the rage simmering in peoples’ chests when their loved ones get shot in cold blood.

At the end of the day, however, the final design of reparations schemes must be tailored to victims’ needs and expectations, and appropriate resources must be secured. The experience of the implementation of RA 10368 or the Human Rights Victims Reparations Act of 2013 is a benchmark for both what to do and what not to do. Was the point system—which gave the full ten points to victims who died or who disappeared and are still missing, six to nine points for those tortured and/or raped or sexually abused, and so forth—appropriate? Was the 10 billion budget secured by the Presidential Commission on Good Governance from the Marcosian ill-gotten wealth quite enough? As the discourse evolves to the legalisation of marijuana, models for possible study include California’s Equity Permit Program, which acknowledged that black impoverished citizens had been disproportionally punished, and therefore allocated half of its medical dispensary permits to people who have served time for marijuana violations in the last ten years, or lived in zones with a high number of arrests for marijuana possession. Small comforts, but a powerful economic and political signal.

4. Policy reform. Dealing with the structural problems associated with the war on drugs, and putting in policies and programs that will ensure that the killings never happen again. This can include investing in drug rehabilitation facilities, medical assistance and counselling. Studies on decriminalisation of soft drugs such as marijuana. Targeted economic, health, and psycho-social programs addressing the socially-excluded that make up the bulk of Tokhang’s dead. Security sector reform. Addressing impunity, and the rampant use of extrajudicial measures against drugs and criminality that encourage rather than deter violence. Locking in a strong implementation and monitoring setup and enough technical and financial resources to carry out comprehensive programs that are gender-sensitive and inclusive in nature, covering both State and non-State actors.

5. Education and memorialization. The large-scale release of reports, films, radio programs, public art, and other knowledge and education products in local/regional languages.

6. Prosecution and other forms of securing accountability. Building cases against the direct killers and those responsible for ordering the deaths of the victims, through prosecutions or criminal trials. The body responsible for doing this should be empowered to conduct public hearings and possess the full power of subpoena to secure testimony and documentary evidence, as well as the ability to protect the identity of witnesses. Although Tatay Digong spoke of granting amnesty to policemen and others involved in the summary executions (‘Shoot him and I’ll give you a medal’), no blanket amnesty was granted (surprise!), the growing prevalence of revenge crimes make these judicial process necessary, especially as Tokhang’s children grow older and more vengeful.

Ad nauseam.

One might argue that thinking of transitional justice in a post-truth world is nothing but a pipe dream, as the Philippines has had its own share of attempts. There were two separate Presidential Commissions created after the Martial Law era, one to pursue accountability for large-scale corruption (tracking down x billion in ill-gotten wealth across x countries), and another to pursue accountability for human rights).The younger Aquino attempted to create another two: one to investigate corruption under Gloria Macapagal Arroyo (declared unconstitutional by the Supreme Court) and a Transitional Justice and Reconciliation Commission created under the Comprehensive Agreement on the Bangsamoro signed with the Moro Islamic Liberation Front. One could argue that these institutions were largely top-down, technocratic, and did not fully capitalize on existing cultural models and mechanisms despite their best efforts, and so had limited traction on the ground. Perhaps the right approach has yet to be found.

Nevertheless, there must be spaces for dealing with crimes and wounds that are not writ in the language of violence (as in putangina obosen na ang mga hinayupak na yan, hinayupak being either the State, or the killers, or the original drug addicts and pushers themselves, as you choose) but instead, can give a chance for something a little more fair. The experience of multiple countries highlights how there is no such thing as ‘post-conflict’—only ‘post-violent’ or ‘post-traumatic’. In that sense, we hapless mortals are bound to enter into more cycles of conflict and violence and trauma until the sun winks out. But for as long as society sees value in acknowledging the worth of a life, and the pain and suffering of families and communities when such lives are snuffed out, regardless of socio-economic status, drug use history, or creed, then perhaps there is space for things as transitional justice.

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