Transitional justice

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By Mags Z. Maglana

The Point Being

Friday, January 10, 2014


OBSERVERS and supporters of peace processes, like the one between the Philippine Government and the Moro Islamic Liberation Front (MILF), are familiar with transitional justice, which has now become part and parcel of peace work around the world. But as an important element of the Framework Agreement on the Bangsamoro (FAB) Annex on Normalization, transitional justice is probably is one of the least understood and appreciated aspects of comprehensive peace building.

To contribute to wider learning about substantive issues of the GPH-MILF peace process the forum ZFD, Bread for the World, Ateneo de Davao University, and the Al Qalam Institute for Islamic Identities and Dialogue in Southeast Asia organized a Pakighinabi Peace Lens roundtable discussion in the last quarter of 2013that focused on transitional justice.

Led by Kristian Herbolzheimer, who represents Conciliation Resources in the International Contact Group on the GPH-MILF peace process, the conversation that involved a number of civil society leaders began with the acknowledgement that the Bangsamoro peace process necessitates the redress of historical injustices -- that justice is called for in light of the numerous human rights violations committed against the Bangsamoro at different levels.

But the commitment to justice is not just a matter of ensuring access; it is also, and perhaps more importantly, a matter of quality of justice.

Transitional justice needs to happen at a time when social change is happening, from an undesirable and often brutal societal situation like being under a dictatorship for two decades, to something better, like a republic that restores rights and institutions considered to be democratic.

In such settings, justice must transpire without fostering new or additional tensions that could rekindle or heighten conflicts and further stall peace. During times of transition, the public institutions that traditionally oversee justice processes such as government bodies are often not capable of performing their functions. So there can be a sense of the processes and responses being ad hoc or temporary in nature.

But we need to be able to do transitional justice well so that it can inform what will happen after it, so that it becomes more than a transient experience. Doing transitional justice well is often associated with three components: truth, justice and reparation or compensation.

Kristian Herbolzheimer mentioned that truth as an aspect of transitional justice has become associated with "structural efforts to come to terms with the violent past", as exemplified by the Truth Commissions in South Africa. Examples of efforts to mete out justice include the tribunals of Nuremberg against Nazi war criminals, and those of Cambodia and Bangladesh. Reparation need not be financial; it can also be material in nature, and even symbolic, such as public apologies.

It has been said that our own experience with addressing grave injustices like those committed under the Marcos dictatorship, and in more recent times, the Ampatuan massacre, have not been marked by transitional justice done well. Although some compensation has been awarded to Marcos's victims, we have not gotten the sense that justice has been served. The Marcoses and their cronies returned to power within a very short period of time, aided in part by a so-called malaise affecting Filipinos -- selective historical amnesia. Families and friends of the 58 murdered individuals continue to agonize with the slow trial process, aware of the financial, political and military clout that the Ampatuans continue to wield.

The Bangsamoro peace process is another opportunity for us as a people to attempt transitional justice. And this time, hopefully we can say with certainty that we did it well. To increase the likelihood of that happening, we have to reframe some of the burning questions associated with the peace process.

To some, the telling and seeking of truths about the historical injustices suffered by the Bangsamoro necessarily begins with the question "What is the truth about the historical injustices committed against the Bangsamoro?" -- and rightly so. But in the process, we also have to factor in these additional considerations: How much truth can we get? How much truth can we take or handle? How much truth will it take?

The different forms of justice have been described in part as retributive, customary and restorative. The first two are associated with punishment; but some aspects of customary justice, and certainly the restorative system, emphasize healing.

One of the criticisms levied against strictly reprisal-oriented justice is that punishment and payback do not necessarily restore the state of wellbeing of victims. Many live out their lives as the walking wounded -- the original harm that happened long ago continues to visit and hurt them, and even in new ways, everyday.

There is no magic formula for restorative justice. Although it has been pointed out that key parts of it entail perpetrators directly acknowledging the damage they have done, and the harmed parties being able to confront their harmers and have a say in how justice and healing can meaningfully occur together.

Advocates of conjoint justice and healing, such as the Women's Feature Service (WFS), Women's Crisis Center (WC) and Women Lead who are against gender-based violence, stand by the banner call "let justice heal, and let healing be just"

Among the reframed questions would thus have to be "What and whose wounds have to be healed by transitional justice in the Bangsamoro peace process? How far back do we go?"

Hopefully, the wounds would not only be those of the Bangsamoro in relation to the central government and the rest of Philippine society, but also the wounds between indigenous peoples/lumads and Muslims, among the different ethnic groups within the Bangsamoro, and even between the MILF and the Moro National Liberation Front (MNLF).

The pursuit of the different truths in the Bangsamoro peace process can neither be exclusively the business of the two panels, nor the responsibility of civil society organizations. Informal groups and individuals have to participate as well - in fact, the wider the population involved in truths-telling and truths-seeking, through story-telling, cultural forms, the arts and otherkinds of social narratives, the better the chance that selective historical amnesia will not recur. Thus forestalling the creation or restoration of situations of injustice.

Paraphrasing the author Milan Kundera in The Book of Laughter and Forgetting, "The struggle of (hu)man(s) against power is the struggle of memory against forgetting."

Email feedback to magszmaglana@gmail.com.

Published in the Sun.Star Davao newspaper on January 11, 2014.

Opinion

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