Litigation Dilemmas: Lessons from the Marcos Human Rights Class Action, Nate Ela
Domestic activists sometimes build alliances with international NGOs or foreign governments to create a boomerang effect (Keck and Sikkink 1998), such that the international entity or foreign government would apply pressure on their political leaders (see, for example, Tsutsui 2017).
It is uncertain, though, whether external pressure can move a recalcitrant state, or a totalitarÂian and isolated regime such as North Korea (Yeo and Chubb 2018). In Nate Ela's study, activists filed a class action lawsuit under the American Alien Tort Statute (ATS) against former Philippine president Ferdinand Marcos for human rights abuses. Marcos was living in the United States after he was ousted from power in the Philippines. Ela, therefore, examines the tactic of litigation. By conducting and analyzing in-depth interviews with litigants and lawyers, Ela discerns three types of litigation dilemmas that troubled antiÂMarcos activists - participation, representation, and settlement - and shows that legal mobilizers who share the same cause are not a monolithic group but experience internal contestations and divisions. The excerpt below covers the first dilemma, participation.In March 1986, the People Power Revolution ousted Ferdinand Marcos from the Philippine presidency. Robert Swift, a partner in a Philadelphia plaintiffÂside class action firm, read the news in the New York Times. Marcos had fled to Hawaii, and when Swift learned of the abuses that had occurred under the Marcos regime - thousands of dissidents reportedly detained, tortured, and disappeared during a period of martial law that lasted from 1972 to 1981 - he realized it might be possible to use the ATS to build a mass tort class action. He bought a ticket to Manila.
Before Swift's arrival, anti-Marcos activists had not heard of the ATS, or contemplated suing Marcos in a US court.
This changed when Swift met with board members of SELDA, a social movement organization that advocated for martial law detainees and victims. Although established in 1985, SELDA had become active only since the fall of Marcos. Its founding members included former political detainees - prominent journalists, labor leaders, and dissiÂdents. [...]These activists had to decide whether to help Swift build a case and continue the struggle against Marcos in a US court. SELDA leaders appreciÂated that either filing a case, or not doing so, involved risks. The respondents who were involved with SELDA's decision making told me that they did not expect to win. Several described the case as suntok sa buwan - an expression that roughly translates as “shooting the moon.”
Jovelyn, a longtime SELDA leader who was familiar with the board's deliberations, told me that winning economic damages was not the priority:
The board very clearly stated to [Swift] that the objective was for the Filipino nation and the world to know that Marcos really violated the rights of Filipinos during martial law.... We wanted a documentation of these violations because to our minds there really was no systematic documentation, and the government's attitude was for us to forget - forget about the brilliant struggle, the shining struggle of the Filipinos.
Rizal, a friend of several board members, put it more frankly. The case was “primarily for propaganda,” he told me, adding that many activists “did not expect that they would win the case or that they would get anything. Some people took it as a joke.... It's more put it on record, preserve the evidence for propaganda purposes.” The lawsuit was not only a propaganda mission, of course; multiple appeals and three separate jury trials - addressing liability, compensatory damages, and punitive damages - confirmed its firm legal and factual bases.
SELDA's board members, like the pay equity activists described by [Michael] McCann, were not “duped by either myopic lawyers or the liberal myth of rights.” To the contrary, their use of litigation was politically sophistiÂcated. They saw it as a way to “win through losing” - using a sure-loser case to score symbolic and political points.
SELDA's leaders, part of a movement with a strong critique of US imperiÂalism, recognized the incongruity of this approach. “To us it was ironic that we would be filing the case in the US,” Jovelyn recalled. Yet she also felt it was “savvy,” since a case could not have been filed in the Philippines. Rizal felt more strongly. “It offends my sense of national pride to go to an American court,” he told me. “Why should we go there for court? The thing is to fight for rectifying the justice system in this country. This is really a mess, but we have to do it - in our country, through our efforts.”
Seeking monetary compensation was also problematic. “We were aware that Swift was in this for the money,” Jovelyn said, “and the board members thought, that, you know, the money thing was not in complete coalition with the objectives that our board members have.” They decided to think of the money as “just a bonus.” But the notion of such a bonus troubled Rizal. “We were not fighting for ourselves,” he told me. “We were not fighting for material gains. And so I don't feel nice about being personally compensated.”
SELDA's board ultimately chose to help Swift build a case. But Jovelyn's and Rizal's accounts illustrate how SELDA leaders grappled with a dilemma. If they did not litigate, they risked losing out on opportunities to shape the historic record and tell their story through the media - propaganda opportunÂities. But by filing suit in the United States, they risked appearing to be mercenaries rather than freedom fighters, and passing on a chance to push for reform in the Philippine justice system. ATS litigation offered an opporÂtunity to continue the struggle, but at least some activists saw potential downsides to its boomerang effects. Nevertheless, the opportunities afforded by litigation, despite expectations the case would lose, appear to have conÂvinced SELDA's leaders to work with Swift.
SELDA's decision making suggests why activists might tend to resolve the participation dilemma by deciding to litigate.
The litigation process creates opportunities to advance the interests of social movement activists, at least in the short run, even if in the long run the case seems likely to be lost. [...] Although nothing compels activists to file an ATS case, one can see why leaders of an organization like SELDA could feel pulled toward doing so.This aligns, at least in part, with how McCann dismisses the “lure of litigation” proposition. McCann describes this as the idea that “reformers beguiled by the liberal myth of rights... tend to undermine their own efforts through reliance on lawyers and litigation.” Based on his study of the pay equity movement, McCann argues that litigation is less likely to produce setbacks when movement activists and cause lawyers see it as just one tactic among many. Extending McCann's approach to a transnational context, [Cheryl] Holzmeyer argues that we should see activists' use of the ATS in a similar light: rather than being beguiled by human rights, activists use the ATS strategically, to make possible other pressure tactics.
SELDA's experience confirms that litigation can be alluring. However, it is not necessarily the myth of rights that lures radical activists into filing suit. The political possibilities offered by pursuing an ATS claim can themselves be quite beguiling. Opportunities to score symbolic points can convince sophisÂticated activists to file a case, even when they appreciate the risks involved in doing so.