The State remembers and forgets

Acts of remembering and forgetting pertain not only to individuals but, indeed, also to the State, which represents the sovereign will of the people. The State remembers by proclaiming public holidays to commemorate important events in the nation’s past, thus inscribing them in the nation’s collective memory.

Independence Day, the birthdays and death anniversaries of the nation’s greatest heroes, a crucial battle in which the people’s valor was on full display, etc. are among such officially remembered events. In addition, monuments are erected to memorialize these, and cities, towns, provinces and main streets are named after heroic figures.

But, there are times when the State also chooses to forget as a matter of policy. The grant of amnesty for certain criminal offenses committed in the past is perhaps the best example of what we may call official forgetting. Amnestied acts are not merely forgiven; they are also, as importantly, erased from the nation’s memory. This act of deliberate forgetting allows the State to adapt to new situations in the effort to maintain a climate of normative stability.

In this regard, one can only imagine what the attempt to invalidate an amnesty granted by a previous administration — which is precisely the intent of President Duterte’s Proclamation No. 572 — does to a nation’s legal stability. It creates a dangerous precedent. It opens up every past amnesty to review. It recriminalizes what has been pardoned, and exhumes from the past what the legal system itself has chosen to bury once and for all.

This dangerous maneuver becomes doubly pernicious when it anchors its demand for the correction of an alleged injustice on the search for missing application forms. Instead of facilitating legal procedures, written forms thereby become a curse. When people start looking for them as markers of facts, they forget that such forms can be lost or deliberately removed from the files, and—in the worst of cases—fabricated and inserted into the records.

But, as the theorist Niklas Luhmann notes in his book “Law as a Social System”: “Memory is not simply a repertoire of past acts but above all the organization of access to information. This organization—and not what really happened in the past—is what leads to its use in concrete operations, which can only be executed in the present.”

Fortunately for Sen. Antonio Trillanes IV, whose amnesty Proclamation No. 572 seeks to nullify for being void ab initio (for allegedly failing to file a formal amnesty application and to admit guilt), most of the government officials and personnel who processed and approved his amnesty are, most likely, still alive.  This means that their testimonies can be taken, and their written annotations at various stages of the evaluation process can be retrieved and reviewed. It is this organized access to information that matters in the final analysis, not the availability of a certified copy of an application form.

But, if this fixation with written forms is allowed to form the basis for nullifying amnesties, then all past amnesty beneficiaries stand to lose their freedoms simply because, with the passage of time, it would be harder to produce witness accounts that could attest to the regularity of the process they went through. If this is not injustice, I don’t know what it is.

The care of official records, papers, documents, etc. is, after all, the responsibility of government. Still, even the best-kept records have limited shelf life unless they are digitized. After a reasonable period, all records are consigned to the archives, of interest primarily to researchers than to lawyers in search of evidence.

Certainly, amnesty, as a mechanism of official forgetting, is not to be trifled with, or given on a whim. The State, acting in behalf of the people, offers to forgive and forget in exchange for a clear admission of guilt and a plea for clemency. Payment or restoration of what had been stolen or left unpaid is also often demanded.

Part of the reason our transition from the Marcos dictatorship has been marred by recurrent crises is the fact that there has been no clear reckoning of the nation’s experience under martial law. Marcos and his cronies fled the country in the wake of the 1986 Edsa uprising. Despite the testimonies of some cronies who voluntarily returned some Marcos properties, the prosecution of the cases against Marcos in our courts became a protracted process that was never satisfactorily concluded.  As these cases languished in our judicial system, many original documents were lost (probably stolen), witnesses disappeared, and every passing year only made it harder to secure a conviction. With the consent of Swiss banks, some of the stolen money was recovered, but much more was successfully stashed away in offshore accounts.

Marcos never admitted culpability for the crimes committed by his regime, never apologized to the nation or begged for forgiveness. Soon after his death in Hawaii, his family was allowed to bring back his remains in the name of national reconciliation. A forgetful and forgiving electorate later voted his heirs to public office, as though they were merely being restored to their birthright.

No administration was audacious enough to initiate a formal process in accordance with a vision of justice and national reconciliation. The promise of amnesty would have encouraged the deposed regime’s leaders to come forward and confess their crimes. It would have helped heal the nation’s wounds and made our politics less divisive.