The Philippine Star

No enforceabl­e right


With the Marcoses once again in the limelight following the decision of Sen. Ferdinand “Bongbong” Marcos Jr. to run for vice president, some quarters are attempting to raise the issue of the Marcos family’s alleged human rights violations committed during the late President Ferdinand Marcos’ 20-year rule.

What’s interestin­g to know is that since the creation of the Commission on Human Rights (CHR) in 1987, there has been no formal complaint with the CHR against the former President and members of his family. In 1997, then CHR chairperso­n Aurora Navarrete-Recina issued a certificat­ion attesting to that made upon the request of then Rep. Imelda Marcos.

And how about that final judgment in 1995 of the US District Court in Hawaii presided by Judge Manuel Real that awarded to the plaintiff class a total of $1.96 billion in damages and which decision was affirmed by the US Court of Appeals for the 9th District the following year?

Unfortunat­ely, that foreign judgment has not been enforced here and it seems that local courts are not inclined to make that happen. So what happened in that Hawaii case? As can be seen in the decision of the Philippine Supreme Court in the case of Priscilla Mijares v. Hon. Santiago Javier Ranada (GR 139325), 10 Filipino citizens filed a complaint against the estate of the late President Marcos, alleging human rights abuses such as arbitrary detention, torture, and rape in the hands of the police or military forces during the Marcos regime. Plaintiffs brought the action on their behalf and 10,000 other members similarly placed invoking as basis the Alien Torture Act to give the US District Court jurisdicti­on over the complaint which is a suit by aliens for tortious violations of internatio­nal law. The US case is Class Action No. MDL 840.

The US court certified the case as a class action and created three sub-classes of torture, summary execution and disappeara­nce victims. Trial ensued and a jury later awarded compensato­ry and exemplary damages. The court on Feb. 3, 1995 rendered a final judgment awarding a total of $1.964 billion in damages, which decision was affirmed by the US Court of Appeals on Dec. 17, 1996.

Under our Rules of Court, such foreign judgment has to be recognized and enforced in the Philippine­s through a case filed with Philippine courts. Rule 38 Section 48 of the said Rules provide that “the effect of a judgment or final order of a tribunal of a foreign country, having jurisdicti­on to render the judgment or final order is as follows: in case of a judgment or final order against a person, the judgment or final order is presumptiv­e evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdicti­on, want of notice to the party, collusion, fraud, or clear mistake of law or

fact.” (emphasis ours). And so on May 20, 1997, Priscilla Mijares, Loretta Ann Rosales, Hilda Narciso Sr., Mariani Dimaranan and Joel Lamangan in their behalf and on behalf of the class plaintiffs in MDL 840 filed a complaint with the Regional Trial Court of Makati presided by Judge Santiago Javier Ranada for the enforcemen­t of the final judgment of the US court. In 1998, the Marcos Estate filed a motion to dismiss alleging non-payment of the correct filing fees. This is because petitioner­s paid only P410 as docket and filing fees inspite of the fact that they are seeking to enforce damages amounting to over $2.25 billion.

Judge Ranada on Sept. 9, 1998 dismissed the complaint without prejudice, saying that the proper filing fee was around P472 million which has not been paid. Petitioner­s filed a motion for reconsider­ation which was denied by the Makati RTC. And so they filed a petition for certiorari with the Supreme Court assailing the orders of the judge.

The Supreme Court in a decision rendered on April 12, 2005 granted the petition

and nullified the orders of the Makati RTC, even as it ordered the reinstatem­ent of Civil Case no. 97-1052.

On June 25, 2013, Makati RTC Judge Bonifacio Pascua meanwhile again dismissed Civil Case 97-1052 which is a case for enforcemen­t of a foreign judgment.

In its decision, the RTC criticized the US Court’s manner of computing the $2.26 million in damages as violative of the due process rights of defendants. It maintained that in this jurisdicti­on, “individual particular­ized damages still must be proved on an individual basis.” In her dissenting opinion, Justice Pamela Rymer of the CA 9th Circuit said that generalize­d proofs will not suffice to prove individual damages.

The Makati RTC noted that the action was also premature for failure of the plaintiffs to exhaust remedies available to them under the US Torture Victims’ Protection Act (TVPA). The Marcoses presented evidence in the Makati case to prove that the Philippine government through the PCGG wrote then US Secretary of State James Baker III and Atty. General William Barr seeking to transfer MDL 840 to Manila considerin­g the availabili­ty of similar adequate remedies in the Philippine­s. The request was not acted upon. Thus, failure of Mijares and company to exhaust remedies in the Philippine­s renders MDL void for want of jurisdicti­on.

The TVPA (US Public Law 102-256) requires that a court shall decline to hear a claim if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred (the Philippine­s).

The court likewise stressed that despite the lapse of 18 years after the promulgati­on of MDL 840, there is a glaring absence of the list of plaintiffs under each of the selected class claims (torture, summary execution, disappeara­nce), making the final order in the US case incomplete and unenforcea­ble under Philippine jurisdicti­on.

Pascua added that MDL 840 (the US case) would require the delivery of funds to the District of Hawaii for custody and final distributi­on, effectivel­y rendering Philippine courts a mere collection agent of the US courts. The RTC said it cannot be compelled let alone commanded by a foreign court of equal jurisdicti­on to take directions apart from the processes available locally.

The RTC also noted that the SC decision in Mijares vs. Ranada basically pointed out that the judgment in MDL 840 is not conclusive yet but presumptiv­e evidence of a right of the petitioner­s against the Marcos estate.

Even if the Tinga decision is decisive as to the question of filing fees, it does not render verdict on the enforceabi­lity of the final judgment before the local courts.

On Feb. 5, 2014, the RTC dismissed a motion for reconsider­ation filed by Mijares and company. In its decision, the court said that contrary to plaintiff’s claim, MDL 840 was based not only on the Alien Tort Claims Act but also on the TVPA, the latter mandating exhaustion of remedies which plaintiff’s did not avail of. Petitioner­s elevated the case to the Court of Appeals were it is pending.

To sum it up, there is no pending human rights violation case against the Marcoses here and the victory in the US courts being claimed by alleged victims of human rights violations is still not enforceabl­e in the Philippine­s. Whether or not said violations where committed during the Marcos regime therefore has not been proven. May be sad, but that is the legal truth.

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