Marcoses in contempt

About two weeks ago, human rights victims suing the Marcos dictatorship won another, important legal victory. Whether this will bring the victims closer to realizing the legal justice they have already received—in 1992, the United States District Court for Hawaii ordered the estate of Ferdinand Marcos to pay the victims nearly $2 billion in damages—remains to be seen. But the new judgment puts additional pressure on the Marcos family, undermines the estate’s legal strategy and allows the human rights claimants wider scope for collecting on the damages. For all these reasons, we join the many who hail the ruling as both just and necessary.

On October 24, the United States Court of Appeals for the Ninth Circuit affirmed the 2011 decision of the Hawaii district court finding the estate of Ferdinand Marcos in contempt, for failure to pay a fine imposed by the Hawaii court. The fine was determined at $100,000 per day; because the Marcos estate failed to pay the fine for 10 years, from 1995 to 2005, by the end of the 10-year period the total amount had reached $353,600,000.

A three-person division of the Ninth Circuit court held that “the $353,600,000 contempt judgment is properly enforceable” by the human rights claimants led by Celsa Hilao.

The contempt judgment is separate from the original (and now two-decade-old) $2-billion award in damages, so the first consequence of the new ruling is that the Marcos estate finds itself obliged to pay the claimants a much higher sum. This is only right. The federal court upheld the district court’s reasoning that “the $100,000 per day amount was ‘necessary and appropriate’ because Marcos’s contumacious conduct was causing direct harm to Hilao, including $55,000 per day from lost interest and additional losses due to Marcos’s dilatory tactics.”

Another consequence is the heaping of judicial scorn on the Marcos estate’s legal strategy. To dilatory tactics, add absurd grasping at straws. We are glad to read in the unpublished “Memorandum” issued by the federal court, for example, the following passage—the legal equivalent of a smack-down:

“Marcos contends that it ‘obliquely’ made this argument [that the Hawaii court’s contempt judgment was unenforceable under federal law] in its December 2010 status report statement. We agree that this reference was oblique; it was, in fact, a single sentence of a single paragraph of a five-page memorandum to the district court. Moreover, the paragraph lacked legal citation and began with ‘Put another way,’ suggesting that Marcos was simply restating the state law argument in different terms. Thus, Marcos did not raise this argument ‘sufficiently for the trial court to rule on it.’”

A third consequence is eminently practical. “This new judgment is against Imelda Marcos and her son [Ferdinand Jr., an incumbent senator] personally for their misconduct,” said lead counsel Robert Swift in a statement released under his name and that of co-counsel Rodrigo Domingo. “It broadens the possibilities for collection of money to the human rights victims. The victims can be assured . . . we will vigorously and aggressively seek to collect this sum.”

The federal court’s judgment gives the human rights claimants additional legal firepower in running after remaining Marcos assets outside the Philippines, primarily in the United States. In the Philippines, however, legislative obstacles continue to bar the way; the Comprehensive Agrarian Reform Law mandates that all amounts recovered from Marcos’ hidden wealth must be redirected to agrarian reform, and a bill in Congress allowing the national government to award some P10 billion of the $540 million recovered from the Swiss government in 1998 remains pending. (This is a matter that should be investigated: Who is holding up the bill?)

Last year, checks amounting to $10 million were finally distributed to the human rights claimants, in partial fulfillment of the 1992 judgment. But that amount is minuscule—only about half a percent of the $2 billion award in damages.

We hope the Ninth Circuit court’s upholding of an additional $353.6 million in contempt fees will prod the Senate and the House of Representatives to do their part, and help the victims achieve justice. We share the regret expressed by some who say that all these judgments involve “only” money (and not prison terms and perpetual disqualification from office)—but considering the crassly materialistic character of the Marcos regime, these damages are not only just; they are also apt.