POSTSCRIPT / February 8, 2005 / Tuesday


Philippine STAR Columnist

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GMA an agent of US court on torture cases?

JUDGE DRILON: There seems to be some confusion in the higher echelons of government as to the functions of certain offices and officials.

It says here, for instance, that Senate President Franklin Drilon has declared as illegal a purchase by the Department of Transportation and Communication of Coast Guard rescue vessels valued at P3.5 billion.

Drilon reportedly said that since the vessels were bought with funds that were not properly appropriated for them in the budget, the department (maybe he meant the DoTC secretary who made the purchase) was guilty of malversation, which is a crime.

Last time we checked, the senator’s job was still confined to lawmaking. We have not heard of Drilon’s having moved to the judiciary and be in a position to judge the guilt or innocence of people facing criminal charges.

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SERVING U.S. COURT: Here is another one, involving President Arroyo no less.

According to her spokesman, the President is committed to indemnify victims of Marcos torture to the tune of P8 billion, to be taken from the $683 million (as of last count) that the government had seized from the Marcos estate as illegal wealth.

Why is the President of the Republic suddenly acting as sheriff enforcing the order of Judge Manuel Real of the US district court in Hawaii that $150 million in damages be paid the 9,539 Filipino torture victims who had sued before him?

To complicate the paymaster role assumed by President Arroyo, a US West Coast appeals court ruled just last week that the $683 million being eyed by Real could not be used to fund the $150-million indemnity.

The $683-million, deemed to have been illegal Marcos wealth, was transferred from the Swiss banking system to an escrow account of the Philippine National Bank and then, by order of the Philippine Supreme Court, to the national treasury.

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NO JURISDICTION: The point of the US appeals court is interesting. I happen to have been saying exactly that in POSTSCRIPT since four years ago.

The overreaching judge of Hawaii never had jurisdiction over the $683-million Marcos fund so he cannot order how it is to be disposed of.

The money was in Switzerland and not in the US. It never touched American territory on its way to an escrow fund of the Philippine National Bank, and it moved farther away from the reach of any US court when it was absorbed into the Philippine treasury.

The late Ferdinand Marcos was not an American, and on the days he committed the alleged crimes, he was a sovereign head of another state. (The trend in Executive interpretation of selected US laws, however, seems to tell the world that US jurisdiction is global.)

The only visible legal leg for the suit against Marcos in Hawaii to stand on was that the ailing strongman physically resided in Honolulu after he fled the Philippines in 1986. Suddenly, he was in Real’s legal realm.

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MARCOS ASSETS IN U.S.: However highly he thought of himself, the US judge still had no business touching the Swiss deposits of Marcos seized by the Philippine government.

What Real should have done, probably with the help of the plaintiff, was locate other Marcos assets in the US — there are plenty — and use them to pay the victims. (The latest report had it that they have found $40 million in a bank in New York.)

The original judgment, btw, was for $1.9 billion, but this was reduced to $150 million in a compromise. In a fit of judicial anger, Real once threatened to junk the compromise and restore the $1.9-billion judgment, but I think he never did it.

Rounded to $2 billion, the award has grown reportedly to almost $4 billion with interest piling up since the original judgment in 2000.

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AGRARIAN FUND: And now, what the Hawaii judge has failed to accomplish so far, President Arroyo will do her best to do?

Courting the Left and the legion of torture victims and their sympathizers, she has committed — according to her spokesman Press Secretary Ignacio Bunye — to give them P8 billion, the peso equivalent of the still unpaid $150 million.

But as the President’s spokesman correctly said, the promised P8 billion cannot be paid from the $683 million taken from Marcos — except by an appropriations act of Congress.

The law says that all recovered illegal wealth will be devoted to agrarian reform.

It may not be easy to show the direct connection of summary execution, disappearances and torture to agrarian reform.

Unless the victims agree to go with the money into endeavors related to agrarian reform, the law must first be amended to legalize any payment to them from recovered Marcos funds.

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IDENTIFY VICTIMS: Difficult basic questions will crop up when Congress moves to amend the law to legalize slicing off a portion of agrarian reform funds to give to Marcos victims.

In the first place, who are the beneficiaries of the P8 billion? Do we just adopt the list of the Hawaii court and thereby give credence to the insinuation that President Arroyo has become an agent of Real?

But to adopt the Hawaii court’s list would mean affirming Real’s controversial judgment without benefit of an appeal or review within the Philippine system. That would be reckless.

Not all the victims can be treated as belonging to one class, since they were hurt in different manners and varying degrees. It would not be fair to get the total indemnity amount and divide it equally among the 9,539 victims, some of whom have died.

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COURT CASES: But assessment of individual claims would entail tedious hearings that could drag on. Do we entrust this task to Congress, or an Executive commission? Or should the courts handle it?

Since the torture charges refer to alleged crimes, I think the correct forum would be a local court. Victims would have to file complaints and their cases heard. The cases could be lumped into a class suit if warranted.

Panibagong mahabang usapan na naman ito.

When the victims file action in local courts, will that mean goodbye to their American lawyers who represented them in Hawaii and who have been salivating to collect their astronomical contingent fees?

While the Hawaii judge has (given the impression that he) acted summarily on the class suit, a Filipino judge may just decide to look into the minutiae of each case in the big pile dumped before him.

Since the debate would take longer than her term, it is actually safe for President Arroyo to promise the P8 billion — as a PR gesture — because it would not come to that.

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WHO’S LIABLE?: There is the other point of who should pay the victims.

Torturing people and killing some of them is not part of the duties of the President. Nor are those criminal acts part of official policy.

There is one school that asks why the government should pay for the crimes ascribed to Marcos. He or his estate — certainly not the government — should pay the victims, according to this school.

Even in the Hawaii case, it was Marcos and not the Philippine republic that was sued. So why should the republic pay for the misdeeds of Marcos?

Eventually, Malacanang would have to clarify this point, as P8 billion is not petty cash to a government in fiscal crisis. Whatever amount is involved, the basic legal point of liability must be addressed.

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CLOSURE SOUGHT: If some observers think there is a growing accommodation between the Arroyo administration and the Marcos heirs, I also happen to see something like that.

She does not seem to be that confident of her supposed mandate given in the last elections, so Gloria Macapagal Arroyo is still campaigning for it. This may explain her assiduous courtship of major opposition forces, including the Marcoses.

Another big question where Ms Arroyo wants to see a closure is with businessman Danding Cojuangco, but we reserve that discussion for another day.

President Arroyo is not operating alone in her open-minded dealing with the Marcos-Romualdez clan having in mind a closure of that festering wound.

The campaign involves congressional leaders, the courts (the Supreme Court included), and even media moguls who have helped lobby court decisions favorable to the clan.

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(First published in the Philippine STAR of February 8, 2005)

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