The Philippines is now master in its own court

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FRANCISCO S. TATAD

FRANCISCO S. TATAD

MORE than any attempt by President Rodrigo Duterte to sharpen his image as an “independent” head of state, a ruling by Associate Justice Normandie Pizarro of the Court of Appeals’ 12th Division affirming Makati Regional Trial Court Judge Bonifacio Pascua’s earlier denial of a $2 billion indemnity package awarded by a US federal court to alleged Filipino martial law victims, now stands as the latest and most significant assertion of Philippine sovereignty vis-à-vis the United States.

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Unless later reversed by the Supreme Court on appeal by the affected parties, it will go down in history as a landmark decision that proclaims the Philippine court’s judicial independence and courage. It seems safe to assume the high court will not want to be seen lesser than the appellate court.

As reported in the mainstream press, the ruling arose from a class suit filed in 1991 before a US District Court in Hawaii by a group of 10 individuals, claiming to represent 10,000 alleged human rights victims during Martial Law under President Ferdinand Marcos.

The Philippine government did not question the jurisdiction of the US court. On February 3, 1995, the court decided that Marcos was “accountable for the torture, murder and disappearance of countless human rights victims,” and ordered the Marcos estate to pay $1.964 billion to the alleged victims.

In 1997, former RTC judge Priscilla Mijares, former Human Rights Commission Chairman Loreta Ann Rosales, movie director Joel Lamangan, Hilda Narciso and Mariano Dimaranan filed a suit before the Makati RTC seeking enforcement of the US court ruling. This was dismissed by RTC Branch 56 Judge Pascua, who ruled that the Hawaii court’s ruling cannot be enforced in the Philippines for lack of jurisdiction. The group then appealed their petition to the Court of Appeals.

An independent and sovereign court
Associate Justice Pizarro ruled, with Associate Justices Samuel Gaerlan and Joseph Lopez of the 12th Division concurring, that the appellate court found no reversible error in the lower court’s ruling and therefore upheld its dismissal of the petition by Mijares et al. The CA held that those who filed the class suit in the US had no legal standing to represent the thousands of alleged victims, none of whom was shown to have executed a power of attorney authorizing the group to represent them in a class suit.

The court pointed out that the alleged torture, summary execution and disappearance of the purported victims cannot be joined into a class suit since “no two persons can suffer the same nature and degree of injury and damage.”

For me, the most significant part of the court’s ruling is that which declares the final judgment of the Hawaii court “null and void, for want of jurisdiction,” and therefore “may not be enforced.” “Rules of comity should not be made to prevail over our Constitution and we cannot allow foreign impositions to trample upon our sovereignty,” the court said.

After Marcos fell from power, and was flown to Hawaii in 1986, revolutionary President Corazon C. Aquino barred the Marcoses from returning to the Philippines to answer charges against them for crimes they were supposed to have committed against Filipinos in the Philippines. Marcos died in Hawaii in 1989, and Imelda Marcos was finally allowed to come home in 1991, after winning her celebrated case in New York, in order to run in the 1992 presidential elections.

What Cory wanted to do
But Cory Aquino remained determined to let the US courts handle the so-called human rights cases against Marcos. This was an abdication of Philippine sovereignty, which should never have happened, unless the country had reverted to being a colony or protectorate of the US. But Cory Aquino was totally unprepared to run the affairs of a sovereign state, and anti-Marcos propaganda had tilted public opinion heavily against Marcos not only in the country but above all in the US. Outside of President Ronald Reagan, the US political leadership (the State Department, the Pentagon and Congress) in 1986 supported the ouster of Marcos.

And well-meaning Filipinos applauded the fact that Cory Aquino had rebuffed Marcos’ plea to answer any and all charges against him in the Philippines, and that instead a US court should hear cases involving crimes he was supposed to have committed against Filipinos in the Philippines.

Some people seemed ready to invest the US court with the same power and jurisdiction which an international treaty (the Rome Statute) had invested the International Criminal Court at The Hague. Hopefully, the Pizarro ruling should be the last word on this.

Genuine victims deserve indemnity
This does not mean that genuine victims of human rights violations should not be legally compensated for damages. Many innocent civilians undoubtedly suffered in the hands of the military and the police. They deserve to be indemnified for their suffering, which can never be justified nor fully indemnified. But they must be thoroughly screened and accurately documented, and segregated from the communist combatants whose rebellion prompted Marcos in 1972 to declare martial law and suspend the privilege of the writ of habeas corpus throughout the Philippines.

Martial Law threw them back, but Marcos’ ouster and Cory Aquino’s assumption into power gave them a new lease on life. Cory released the communists from jail, and as soon as she did, they tried to regroup and reorganize; their top leaders sought foreign sanctuary in Utrecht, the Netherlands, where they became the last subsisting communists in Europe after the Soviet Union collapsed in 1991.

I have always thought that those who participated in the armed struggle against the government were ready to accept whatever they had gone through as the price of failing to bring down the government by force, just as the government’s loyal troops who had suffered in the hands of the communists have accepted everything they had gone through as the price of fighting for freedom and the democratic and republican state.

I was wrong. While victims of military abuse are free to denounce the abuse and claim economic compensation for it, the NPA could kill a government official, trooper or a civilian for reasons of their own, and the case is “closed” as soon as it is known the NPA was behind it. No NPA leader is facing any charge of violating anybody’s human rights, and being asked to indemnify any victim or their families.

Now, who should indemnify the bona fide Martial Law victims? The Marcos estate or somebody else? To me this remains an unresolved issue, which should be thoroughly re-examined by the competent authorities.

Not too long ago, the transfer of some “hidden wealth” from a Marcos account in Switzerland to the Philippines energized some human rights claimants to demand that they receive it. I do not recall exactly what happened here. The law says monies recovered by the Presidential Commission on Good Government from Marcos’ alleged stash of “ill-gotten wealth” should be used specifically for agrarian reform. So, unless the law was violated, it should have gone to the Department of Agrarian Reform.

Assuming the Marcos estate is required by law to indemnify the human rights victims, any money recovered by the PCGG from the alleged Marcos stash becomes money of the state and therefore cannot be used to fulfil the estate’s duty to the claimants. However, I have grave misgivings about the correctness of the basic proposition.

The proclamation of Martial Law, which was in force and in effect from September 21, 1972 to January 17, 1981, was an official act of the Philippine state. It was not a private personal act of Ferdinand Marcos. Any excesses committed by those who enforced it must therefore be referred directly to the state, without excluding the individuals involved. Any indemnity to any “victim” should therefore be demanded not from any particular individual, but from the state.

Is this thesis correct or not? This deserves to be given the utmost consideration by our best minds.

PNoy’s indictment
While we are discussing a judicial issue of the highest importance, we could perhaps segue to the current excitement about Ombudsman Conchita Carpio Morales’ reported decision to indict former President B. S. Aquino 3rd for “usurpation of authority” in connection with the botched special police operation in Mamasapano, Maguindanao, on January 25, 2015.

This operation resulted in the massacre of 44 Special Action Force commandos, after Aquino reportedly ordered the military reinforcement units to stand down instead of coming to the rescue of the badly outnumbered commandos.

It is to be regretted that PDU30 could not restrain himself from calling the Ombudsman’s finding “silly”, but that is probably the least that can be said about it. Whose authority did he usurp? As President and Commander in Chief, Aquino acted beyond his authority when he brought former PNP Chief Allan Purisima, who was under suspension at the time, into the operation to recover high-value terrorist targets in Mamasapano, while cutting off the Secretary of Interior and Local Governments and the acting PNP Chief from the chain of command. This was clearly a misuse or abuse of authority but certainly not usurpation of authority.

But the real question that has been asked by the SAF widows and orphans, and by the men and women of the police and the military and everyone else, who has followed this tragedy to this day is this: Would the 44 SAF commandos have perished if Aquino did not directly or indirectly order the military reinforcement units to stand down, instead of answering the distress calls of the commandos? If Aquino has to be charged at all, it has to be in relation to this.

But this is obviously a tough call. The Ombudsman is an Aquino appointee, but somehow related to the DU30 family by affinity. She is threatened with impeachment by one noisy anti-crime group, which claims to enjoy the blessings of DU30. She has to walk the tightrope. She has apparently decided to please both sides by charging Aquino with a crime, but it has to be a crime which does not exist or which he cannot possibly be guilty of. This has been done before by one distinguished secretary of justice. And he got away with it. The trouble, though, is that no less than the President himself has said the Empress is naked.

fstatad@gmail.com

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