WHAT has been hailed as a "historic first" settlement compensating victims of human rights abuses has hit a snag. Hardly had the ink dried on a draft agreement signed on Feb. 24 by the Philippine government, the heirs of former President Ferdinand Marcos and the lawyer for the human rights victims, in which 10,000 claimants would be paid $150 million, when it was discovered that a last-minute insertion would give the Marcos family virtual immunity from future suits for human rights abuses.

The clause is alleged to have been inserted in the draft by the lawyers for the Marcoses. The offending clause says Imelda Marcos and the three Marcos children have "never been charged civilly or criminally with human rights violation anywhere in the world, including the Philippines but are otherwise released fully by this paragraph." It adds that Marcos himself "was never charged with a human rights violation civilly or criminally in the Philippines. His estate is released fully by this paragraph."

The fact that Robert Swift, the lawyer for the claimants, did not sign the page on which the clause appeared tends to show that there was a last-minute attempt to make the deal a blanket clearance exonerating the Marcos heirs of responsibility for human rights abuses.

The statement that claims the Marcos heirs have never been charged criminally or civilly with human rights violation in the Philippines or elsewhere is bald falsification. The late dictator's daughter Imee was accused of the murder of Archimedes Trajano, a student of the Mapua Institute of Technology who was killed after he questioned her capacity to lead the Kabataang Barangay during the martial law regime. Trajano was awarded $3 million by a US court in this suit.

Because of this insertion, the draft agreement becomes fraudulent. It should therefore be reviewed and the fraud expunged when the document comes up for formal approval by the Philippine government, the Sandiganbayan and the US court in Hawaii which will begin formal hearings on the settlement in April.

Senate Majority Leader Franklin Drilon is absolutely right when he said that the insertion was "unacceptable" and urged President Estrada to cancel the deal if the Marcoses insist on retaining it.

Swift, the lawyer for the 10,000 claimants, may be right in claiming that the deal was the first time in modern history that victims of human rights abuses have won a settlement in the courts compensating them for the atrocities they suffered at the hands of repressive authorities. Indeed, no case has so far succeeded in reclaiming the assets looted by fallen despots like the Shah of Iran, Manuel Noriega of Panama, or Papa Doc Duvalier of Haiti.

But the gain made in the litigation for compensation against the Marcoses is in danger of being canceled by the smuggling of the clause into the draft agreement. The agreement becomes a tradeoff in which the Marcoses agree to pay $150 million from their loot in exchange for immunity from future human rights suits. It mocks justice to say that the Marcoses agreed to the deal out of generosity from their big hearts.

Chicanery

IT should be emphasized that the $150 million is only a sixth of the $590 million in escrow funds transferred by Swiss courts to the Philippine National Bank from the laundered Marcos assets. After the $150 million has been distributed to the claimants, the next step is an agreement between the Philippine government and the Marcos heirs on the distribution of the balance. The current formula, barring further sneaky tricks, is 75 percent for the government and 25 percent for the Marcoses.

The government hopes it can increase its share. If the government succeeds, it deserves applause. But it should be warned that it faces a cunning protagonist across the table, and the clandestine clause that found its way into the draft agreement serves as a warning that chicanery is along the way.

It must also be remembered that the $590 million is only a small fraction of the assets plundered by the dictator from this country. In this agreement, the Marcoses are apparently emerging unscathed and are paying very little, while gaining immunity to boot.